Frozan Sarwary
According to research by Global Rights, 87% Afghan women have faced physical or sexual violence. Many of them have faced violence at the hands of those closest to them, their husbands. Another report by the United Nations Assistance Mission in Afghanistan (UNAMA) shows that many women, despite facing abuse, don’t want to engage with the legal system. This is partly due to corruption and harassment within the courts, but it is also because according to Afghanistan’s civil code, women are most likely to lose custody over their children if they get divorced. This forces many women to endure years of trauma even if it is physical and sexual abuse just so they don’t lose their children.
According to Afghanistan’s Civil Law, after the age of seven for boys and nine for girls, custody belongs to the father. Second in line is the grandfather. In fact, the way the law is practiced, sometimes uncles and male cousins receive the right to custody before mothers do. This unjust law is used by many abusive men to control women and force them to stay in abusive marriages.
While women don’t receive custody rights, the responsibility to care for children – boys until seven years of age and girls until they are nine years old- falls almost entirely on their shoulders. The court requires fathers to pay an alimony of 2,000 to 3,000 Afghanis (about 30-45 USD) for each child. That barely covers the expenses of a child’s schooling let alone clothes and medical fees. This, in a country where women often do not have an income of their own, is a form of financial abuse leaving women vulnerable to begging on the streets or depending on another male family member for the costs of children they won’t even be able to keep. The financial burden also prevents many women from leaving abusive marriages.
Some men don’t even pay the alimony mandated by the court to reinforce their power over women or force them into coming back to them. I am a student of law who spends many days in the hallways of the family courts of Kabul. I’ve heard men say this to their ex-wives countless times: “It was your decision to get divorced. It is your responsibility to feed them.”
The divorced mother endures an alarming amount of stigma and sexual harassment, poverty, and violence, but as soon the child is seven or nine years old, the father comes along and takes them away.
Most divorced women in Afghanistan do not remarry because they are often viewed as “used” or “second hand”. But there is also another reason for remaining single. If a divorced mother decides to get married with another person at any time before her children reach the ages of seven (for boys) and nine (for girls), she automatically loses custody over them. In the meantime, the father can do anything, including remarry.
Can we blame a mother for not wanting to let go of her children, especially after nurturing and taking care of them for the first seven years of their lives? The law essentially gives mothers two options: they can either hand over their children to a man they know is abusive or they can run away with their children. Because many women have tried leaving the country with their children, the court allows men to deny permission for children to travel with their mothers while under her custody. Trying to leave the country brings even more dangers to mothers. A divorced mother traveling with her children without the permission of her ex-husband can actually go to prison for doing so.
The law also requires mothers to provide proof that they won’t run away with their children. The proof must come in the form of a letter from a business or land owner guaranteeing that the woman has no intention of escaping with the children. Searching for someone to guarantee you in a country where men own most of the land and the businesses is a nearly impossible task. If the business/land owner has suspicions that you may run away, he won’t sign the letter out of fear of imprisonment himself. It is horrible that despite all her sacrifices and putting everything in her life on hold, a mother still must prove to the court that she will not escape the country with the children.
Our custody laws blindly entrust the children to their father instead of assessing the situation to see if the father is fit for custody. We need to fundamentally change this in our country. The court must consider that a violent husband will also be an abusive father. Would a husband who beats his wife, respect his daughter’s rights? Are there any guarantees that he will not sell his daughter off in marriage? In addition, let’s not forget that fathers often remarry. Will the new wife treat the children well? Will the home be safe for them? Is living with a violent father better than living with a kind mother? Is it not more humane and just to give custody to the parent who is most fit to take care of the child and provide a better future?
We claim that the paradise is beneath mothers’ feet, but by taking away their children we make life hell for them.
This piece was translated to English by Maryam Laly. A volunteer for Free Women Writers, Maryam is passionate about human rights issues. She has a degree in Government with minors in Peace Studies and Arabic from St. Lawrence University.
Read this piece in Persian here.