أعراف الزواج القبلية في شمال أفغانستان : دراسة فقهية تحليلية

Abstract

This study deals with the customs of tribal marriage in northern Afghanistan. It takes place with the testimony of two witnesses in the contract meeting with or without the guardian's presence and without requiring any registration or documentation. The study has clarified the customs of tribal marriage prevailing in northern Afghanistan, including shighār marriage (marriage by exchange) and ṣulḥ marriage (reparatory marriage). The study explains how those kinds of marriage are performed and the position of Sharīʽah and Afghan Civil Law regarding these two customary marriages. Moreover, the study explored some legal and social solutions to limit such marriages. The study has adopted three approaches. The inductive approach was utilized to search in the Sharīʽah texts, the opinions of the jurists, Afghan customs and tribal covenants related to Shighār marriage and the ṣulḥ marriage. The analytical approach was used to analyse the relevant Sharīʽah texts and the opinions of the jurists to see if the customary marriage according to tribal customs is in line with Islamic jurisprudence. Moreover, the field-based approach was used to explain the shighār marriage and ṣulḥ marriage, as well as interviewing the scholars and notables of tribes who undertake such marriages. The study concluded with several results. It is found that among the fundamental reasons behind going for the customary shighār marriage are: 1) poverty and the family’s inability to afford the costs of marriage; 2) family ties, meaning the first party will request the daughter of the second party for his son, and the second party will accept with the condition that the first party has to give his daughter to his son as well, so they agree based on shighār marriage. The shighār marriage is considered a violation of the woman’s right to choose her husband and her right to the dowry; it may even expose her to domestic violence. As for the ṣulḥ marriage for intentional homicide, it is not considered one way of the abolition of retribution, and it is not accepted according to Sharīʽah, even if it has been a common marriage in the society. In addition, this kind of marriage did not consider the Sharīʽah objectives of marriage, such as affection and mercy. Furthermore, based on some interviews with the Afghan scholars, it was found that they agreed that a ṣulḥ marriage for intentional homicide is not based on Sharīʽah grounds, and it has several adverse effects such as increasing enmity and hatred among the society. Moreover, the Afghan scholars proposed some suggestions that should be presented to the tribes of northern Afghanistan to prevent the occurrence of such marriage.