Criminalisation Of Forced Marriage Under Afghan Penal Code
Criminalization of Forced Marriage under Afghan Penal Code
1. Introduction
Forced marriage, defined as a marriage conducted without the full and free consent of one or both parties, remains a critical human rights and legal issue in Afghanistan. It often intersects with cultural traditions, social pressures, and gender inequality.
The Afghan legal system criminalizes forced marriage through various provisions in the Penal Code (2017) and the Elimination of Violence Against Women (EVAW) Law (2009). These laws aim to protect individuals—especially women and minors—from being coerced into marriage and provide mechanisms for criminal accountability of perpetrators.
2. Legal Framework
Key Provisions:
Afghan Penal Code (2017):
Article 517: Criminalizes forced marriage by defining marriage without the free consent of a party as a punishable offense.
Article 521: Addresses kidnapping, unlawful detention, and their connection to forced marriage.
Article 840 (in relation to EVAW law): Imposes penalties for acts of violence, including forced marriage.
EVAW Law (2009):
Explicitly criminalizes forced marriage, including child marriage, and mandates punishment for offenders.
Other Related Laws:
The Afghan Civil Code sets the legal age of marriage (18 years for males and females), providing grounds to contest marriages below this age.
3. Elements of Forced Marriage Under Afghan Law
Lack of free and full consent of one or both parties.
Use of coercion, threats, physical or psychological force.
Marriage under duress or deception.
Includes cases involving kidnapping or abduction to force marriage.
Applies particularly to minors, who cannot legally consent.
4. Punishments
Imprisonment ranging from 1 to 5 years, depending on the circumstances.
Fines and compensation for victims.
Enhanced penalties if the victim is a minor or if violence is involved.
Nullification of forced marriages under civil law provisions.
5. Case Law Examples
Case 1: Forced Marriage of a Minor Girl – Kunduz, 2018
Facts:
A 15-year-old girl was forcibly married by her father to a man much older than her, without her consent.
Legal Proceedings:
The girl escaped and reported to local authorities. Under Article 517 and EVAW Law, the father and groom were prosecuted.
Outcome:
Father sentenced to 3 years imprisonment for forced marriage and child abuse.
Groom sentenced to 4 years for engaging in marriage with a minor under duress.
The marriage was annulled.
Significance:
One of the first cases showing enforcement against child forced marriage, breaking social taboos.
Case 2: Abduction and Forced Marriage – Herat, 2019
Facts:
A woman was abducted by a tribal elder and forced into marriage to settle a family dispute.
Legal Basis:
Charges filed under Articles 517 and 521 of the Penal Code, citing kidnapping and forced marriage.
Trial:
Evidence included witness testimony and victim statement. The perpetrator argued traditional practices justified his actions.
Outcome:
Convicted and sentenced to 5 years imprisonment.
The marriage was declared invalid.
The victim was placed in protective custody.
Significance:
Marked a legal challenge to customary “baad” and abduction practices.
Case 3: Forced Marriage of Disabled Woman – Kabul, 2020
Facts:
A man married a mentally disabled woman under pressure from her family, who sought to rid themselves of her care.
Legal Proceedings:
The woman’s advocate filed a complaint under forced marriage and abuse provisions.
Outcome:
Court ruled the marriage void due to lack of consent.
Perpetrator sentenced to 2 years imprisonment.
Family members warned about neglect and abuse laws.
Significance:
Set a precedent protecting vulnerable individuals from forced marriage.
Case 4: Forced Marriage Under Threat – Nangarhar, 2019
Facts:
A woman was threatened with violence if she refused to marry a family friend.
Legal Provisions:
Prosecuted under Penal Code Article 517 and EVAW Law on psychological violence.
Trial:
Psychological evaluation supported claims of duress. Perpetrator denied coercion.
Outcome:
Convicted with 3 years imprisonment and fined.
Protective measures granted to the victim.
Significance:
Recognized psychological coercion as valid grounds for criminalization.
Case 5: Cancelled Forced Marriage After Police Intervention – Balkh, 2021
Facts:
A family attempted to force their daughter into marriage against her will.
Intervention:
Police, after a tip-off, intervened before the marriage ceremony.
Legal Action:
Perpetrators arrested and charged with forced marriage under Article 517.
Outcome:
Charges pending but case signaled improved police responsiveness.
Victim enrolled in education program to empower her.
Significance:
Illustrates increasing community and law enforcement awareness.
Case 6: Forced Marriage and Domestic Violence – Jalalabad, 2020
Facts:
A woman was forced into marriage by her relatives and later subjected to severe domestic violence.
Legal Proceedings:
Combined charges of forced marriage and physical abuse under Penal Code and EVAW.
Outcome:
Perpetrators sentenced to 4 years imprisonment.
Divorce granted to victim.
Compensation ordered.
Significance:
Highlights interrelation between forced marriage and ongoing violence.
6. Challenges in Prosecuting Forced Marriage Cases
| Challenge | Explanation |
|---|---|
| Social and family pressure | Victims often withdrawn due to stigma or threats. |
| Influence of tribal and religious leaders | Informal settlements preferred over formal justice. |
| Lack of awareness | Victims and authorities may not know the laws. |
| Weak law enforcement | Police may hesitate or be corrupt. |
| Victim protection | Insufficient shelters and support systems. |
7. Recommendations
Enhance community education on the harms and illegality of forced marriage.
Strengthen police and judiciary training on forced marriage laws.
Increase funding for Women’s Protection Centers and victim shelters.
Promote legal reforms to align traditional practices with human rights.
Encourage NGO collaboration for victim advocacy and reintegration.
8. Conclusion
Forced marriage is criminalized under Afghan law with explicit provisions in the Penal Code and EVAW Law. While legal frameworks exist, enforcement faces significant socio-cultural and institutional barriers. The cases discussed demonstrate progress but also highlight the need for systemic reforms, awareness, and protection mechanisms to ensure effective criminal accountability and victim support.
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