“When Silence Becomes Consent: Taliban’s Controversial Order Regarding Marriage of Minor Girls”

The Taliban government in Afghanistan introduced a new 31-article family law decree titled “Principles of Separation Between Spouses”, approved by Taliban supreme leader Hibatullah Akhundzada. The regulation deals with marriage, divorce, guardianship, annulment, and family disputes under Taliban rule.

Consent in Marriage: One controversial provision states that the silence of a minor “virgin girl” can be treated as consent for marriage, while silence of a married woman or a man cannot be considered consent. This allows marriages between minors in certain cases and gives fathers and grandfathers authority over such arrangements. Critics argue that this weakens the principle of free and informed consent in marriageand allowing child marriage in certain situations and giving male guardians primary authority over marriage decisions is criticised for violating children’s rights, dignity, and autonomy. Human rights organisations further contend that the law conflicts with international norms on gender equality, protection of children, and personal liberty, and reflects a continued restriction on women’s rights since the Taliban’s return to power.

Child Marriage Provisions: The decree permits marriage of minor boys and girls in certain cases if arranged by fathers or grandfathers and if the groom is considered socially suitable. It also recognises the doctrine of khiyar al-bulugh (option after puberty), allowing annulment of child marriage after puberty with approval of religious courts.

Powers of Taliban Courts: Taliban judges are empowered to decide disputes relating to adultery, religious conversion, disappearance of husbands, and zihar (a classical Islamic practice where a husband compares his wife to a forbidden female relative). Courts may order separation, imprisonment, or other punishments.

Human Rights Concerns: The decree has drawn international criticism for violating women’s and children’s rights. It is viewed as inconsistent with international human rights standards relating to equality, dignity, education, and free consent in marriage.

Relevant International Law: The provisions are considered contrary to:

● Article 16 of the Universal Declaration of Human Rights (free consent in marriage),

● Convention on the Rights of the Child (protection from child marriage),

● Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW), which prohibits discrimination against women in family relations.

Comparative Indian Perspective:

In India, child marriage is prohibited under the Prohibition of Child Marriage Act, 2006. It is the religious neutral act i.e. applicable on all Indians irrespective of their religion. Presently, the minimum marriage age for girls is 18 years and for boys it is 21 years. The Modi government introduced the Prohibition of Child Marriage (Amendment) Bill, 2021 in Parliament, proposing to raise the minimum age of marriage for both boys and girls to 21 years, applicable to all citizens irrespective of religion. However, the Bill could not be passed due to opposition from various political parties for political reasons.

Indian constitutional principles under Articles 14, 15, and 21 ensure equality, non-discrimination, dignity, and personal liberty in matters relating to marriage and family life. The subjects of marriage, divorce, and maintenance fall under the Concurrent List in Schedule VII of the Constitution under Article 246, meaning both the Union and State governments can legislate on these matters. However, in case of any conflict between a Union law and a State law, the Union law prevails.