By Ziba Balkhi
A 16-year-old girl in northern Balkh province has chosen to go to prison rather than be in an abusive marriage.
Benafasha* wanted to formally separate from her fiance after a number of occasions of his alleged abuse and drug use, Benafasha’s sister Qudisa* told Rukhshana Media.
Her 28-year-old fiancé refused to accept the teenager’s request to separate, so Benafasha took her plea to the Taliban courts. The judge gave Benafasha a choice: go to prison or marry her fiance.
She chose prison.
“It’s been almost three months since I’ve not seen my sister. An unfair decision by the Taliban court has kept me and her apart to this extent,” Qudisa says.
A legal source in Balkh also confirmed Benafasha had been imprisoned for wanting to separate from her fiance.
She was only 14 when her parents engaged her to the 26-year-old man who came from a good family with financial means, but who later was revealed to have a drug habit.
“Her fiancé was very ill-tempered. He would curse at the slightest thing and beat Benafasha mercilessly,” Qudisa said.
“One day my sister went with my mother to my aunt’s house. They stayed there overnight. The next day when Benafasha’s fiancé found out, he came to our house.
“My father and brothers were working. Only Benafasha, my mother, and my younger brother were at home. He entered our house and beat Benafasha so badly that the marks of his slaps were left on her face,” she said.
Qudsia said that incident was the final straw for Benafasha who requested separation, but her fiancé refused.
In Afghan culture, divorce requested by a woman is called separation, which the Taliban do not recognize as legitimate separation. Under Islamic Sharia law, the right of divorce primarily rests with men.
A BBC Persian investigation published two years before Afghanistan fell to the Taliban found 80 percent of divorces were initiated by women. Legal experts say this indicates that women likely had more access to justice than now.
Benafasha sought help from Taliban authorities
Benafasha took her case to the Taliban court in Balkh province three months ago.
According to Qudsia, the Taliban judge’s opening comments – without hearing from Benafasha or asking questions – told her that she had two options: prison or give up on divorce.
“The judge took her husband’s side saying women are always looking for a small excuse to separate,” Qudisa said.
She quoted the judge as saying to Benafasha: “It looks like you don’t like [your fiance] anymore and you want someone else. Look at the man, he’s healthy and handsome. What else do you want?”
Ultimately, Benafasha’s claims held no weight. “If your fiancé doesn’t want it, you have no right to separate from him,” Qudisa said the judge told her.
“We had plenty of evidence showing that my sister’s fiancé was not suitable for her. We had pictures demonstrating how he had beaten my sister,” Qudsia said.
“We had text messages and voice recordings showing how he would insult and threaten to beat my sister. But the court paid no attention to my sister’s plea or the evidence we had.
“The only sentence the Taliban judge said was that the right of divorce belongs to the husband.”
Qudsia said that when given the options, her sister chose to go to prison.
“The Taliban told her that as long as she refuses to live with her fiancé, she will remain in prison,” she said.
For the Eid holiday, Benafasha’s family arranged for her release to be released from prison for eight days with a special request document.
After this period expired, the Taliban court granted Benafasha another three days to reach an agreement with her fiance and agree to live with him.
The three-day deadline passed and again Benafasha was given the choice: prison or marriage. Again she chose prison.
“The Taliban judge said [to her] with great anger, ‘Go back then and remain in prison for the rest of your life! Understand that until you don’t change your decision, you won’t see freedom!’” Qudisa said, quoting the judge.
She said Benafasha’s parents hope to resolve the issue through the mediation of tribal elders.
Benafasha was in the eighth grade when the Taliban seized control of Afghanistan. The group immediately closed girls high schools and Benafasha had no means of continuing her education. So when a wealthy young man proposed he marry their daughter, they thought it was a good option.
“When schools closed and this person came to propose to my sister, my father said it was time for her to get engaged,” Qudisa said.
Her mother and brothers agreed, although the family had no prior acquaintance with the man.
Woman’s cases being sidelined or discredited in courts
Defense lawyers in Balkh province said that Taliban judicial institutions tend to rule in favor of men in most family cases.
A lawyer in Balk’s capital city Mazar-i-Sharif, who spoke on condition of anonymity, said that a verbal directive was issued by the Taliban leadership a few weeks ago instructing courts not to entertain genuine requests from women in family cases.
“In this directive, it was said that you should make efforts not to entertain cases brought by women without a male guardian,” the defense lawyer said.
“The second directive was not to entertain disputes brought by women in family matters if the opposing party is a male, and not to reopen cases for them or prolong their disputes.”
The lawyer felt that the directive was deliberately given only in verbal form.
“If it were in writing, it could spread, and they [the Taliban] do not want it to reach the world’s attention,”
Another lawyer in Mazar-i-Sharif city, who requested anonymity, also confirmed the directives and said as a result no requests from women are being entertained in family cases, or courts simply rule in favor of men.
The lawyer said he was currently representing a client with a similar case to Benafasha’s where despite having documentation to prove her words, she had been threatened by the court with imprisonment for pursuing her demands.
The lawyer said that in a tragic case a year ago, a lady named Nazanin* was attacked by her husband with a knife. When she later filed for divorce she too was given the choice of stay in the marriage or go to prison.
“Her case was such that it seemed the husband had intended to kill his wife. He had struck his wife four times on her head, shoulder, wrist, and neck and he fled the scene,” the lawyer said.
“The relevant authorities and the district police had documented the situation extensively and transferred the woman to the hospital. After treating the patient, the hospital prepared its medical report and handed it over to the authorities, confirming that the woman had been stabbed.
“Subsequently, the case was sent by the authorities to the criminal court of the city after investigation, and the court sentenced the husband to imprisonment for two years after reviewing the documents.”
But when Nazanin filed for separation from her husband in court, the court warned her that if she pursued the request, they would release the man and imprison her instead.
After a year of prison, her husband was released under the Eid concessions given to some prisoners by the Taliban, and he is now threatening his wife again that she must return to live with him, the lawyer said.
“Just a few days ago, that lady came to me and said her husband is requesting her to come home, but she said if anyone or the court forces her to go with him, then she’ll commit suicide before her husband kills her.
“That lady asked me for a solution to what she should do. I told her not to go to court anymore, but to ask few elders to mediate for you. Otherwise the court will give a warning this time and sentence you.”
The lawyer said that he knows of numerous cases like this, and women’s requests are not considered in Taliban courts.
There are currently no women working in Taliban judicial institutions in Balkh.
Women in Balkh province have previously reported to Rukhshana Media that there is no access to justice for women in Taliban judicial institutions.
*Names have been changed for security reasons.
