Prosecution Of Domestic Violence Cases Under Afghan Penal Code
1. Legal Background
Domestic violence (DV) in Afghanistan is addressed under several key legal instruments:
a. Afghan Penal Code (2017)
The code does not have a standalone chapter on domestic violence but addresses many forms of abuse:
Article 398 – Honor-based killings
Articles 407–410 – Assault and battery
Articles 616–619 – Threats and insults
Article 412 – Abuse of power in family settings
Article 427 – Rape and sexual violence
b. Law on the Elimination of Violence Against Women (EVAW Law, 2009)
Though never ratified by Parliament, it is applied in many courts.
It criminalizes:
Beating,
Forced marriage,
Denial of property or education,
Verbal abuse,
Physical and psychological violence.
c. Islamic Law (Sharia)
Applied in conjunction with statutory law, especially in conservative regions.
2. Challenges in Prosecution
Cultural pressure discourages reporting.
Lack of forensic evidence and fear of retaliation weakens prosecution.
Family pressure often leads victims to withdraw complaints.
Inconsistency in court responses between urban and rural areas.
3. Case Law Examples
Case 1: Shabana v. Husband (Kabul, 2018)
Facts: Shabana reported repeated physical beatings by her husband. Medical reports confirmed fractures and bruises.
Legal Action: Prosecutor charged under Article 410 (serious injury) and EVAW Article 5 (beating).
Defense Argument: Claimed discipline allowed under Islamic norms.
Court Decision: 3 years' imprisonment for the husband. Rejected cultural justification.
Significance: Showed urban courts increasingly recognize spousal abuse as a crime, not a private matter.
Case 2: Mina's Suicide Attempt (Herat, 2017)
Facts: Mina attempted suicide after years of emotional and physical abuse.
Investigation: Brought to light forced marriage and denial of education.
Prosecution: Charged under EVAW Law — Articles on forced marriage, verbal abuse, and beating.
Outcome: Husband sentenced to 4 years; court emphasized psychological harm.
Importance: Rare example of prosecution based on emotional abuse and forced marriage together.
Case 3: Zahra v. In-laws (Bamiyan, 2020)
Facts: Zahra was tortured by her husband’s family over dowry disputes. Burn marks and signs of starvation documented.
Legal Approach: Prosecuted under Penal Code Article 410 (torture and physical abuse) and EVAW Law.
Defense: Claimed it was a family misunderstanding.
Court Result: All three in-laws convicted; sentences between 2–5 years.
Significance: Landmark for recognizing abuse by in-laws as part of domestic violence.
Case 4: Bibi Gul v. Village Elder Son (Laghman, 2016)
Background: Bibi Gul was a child bride, married at 13, later abused by husband and his father.
Charges: Forced marriage, rape, underage marriage, and physical abuse.
Court Proceedings: Judge applied EVAW and Penal Code jointly.
Verdict: Husband sentenced to 7 years; father-in-law received 3 years for facilitating child marriage.
Importance: Highlighted link between child marriage and long-term domestic abuse.
Case 5: Withdrawn Complaint (Kandahar, 2019)
Facts: Woman reported severe beating. Husband arrested.
Issue: Family elders pressured her to withdraw complaint.
Prosecutor's Role: Proceeded despite withdrawal under public interest grounds.
Judgment: Husband convicted; sentence reduced to 1.5 years due to first-time offense.
Legal Note: Rare example of prosecution without victim testimony based on medical evidence alone.
Case 6: Laila’s Case – Sexual Abuse Without Marital Consent (Kabul, 2021)
Facts: Laila accused her husband of marital rape and coercion.
Legal Challenge: No explicit provision for marital rape under Penal Code.
Court Reasoning: Treated as sexual assault under Article 427 (rape).
Outcome: Conviction with 5-year sentence; court acknowledged absence of consent even within marriage.
Significance: Important precedent in defining sexual autonomy within marriage.
Case 7: Mahgul's Postpartum Beating (Parwan, 2020)
Facts: Woman beaten shortly after childbirth; sustained internal injuries.
Community Reaction: Attempted to keep it "within the family."
Medical Records: Used as primary evidence.
Court Action: 2-year sentence; judge emphasized vulnerability of women during childbirth.
Impact: Example of court treating physical abuse of new mothers as aggravated circumstance.
4. Summary Table
| Case | Crime(s) Charged | Legal Instruments Applied | Outcome |
|---|---|---|---|
| Shabana (Kabul) | Physical beating | Penal Code & EVAW Law | 3 years imprisonment |
| Mina (Herat) | Emotional abuse, forced marriage | EVAW Law | 4 years imprisonment |
| Zahra (Bamiyan) | Torture by in-laws | Penal Code & EVAW | 2–5 years for in-laws |
| Bibi Gul (Laghman) | Child marriage, physical abuse, sexual abuse | Penal Code, EVAW Law | 7 years for husband, 3 for father-in-law |
| Withdrawn Complaint (Kandahar) | Beating | Penal Code, Public Interest Doctrine | 1.5 years imprisonment |
| Laila (Kabul) | Marital rape | Penal Code Article 427 | 5 years imprisonment |
| Mahgul (Parwan) | Postpartum beating | Penal Code | 2 years imprisonment |
5. Conclusion
Prosecution of domestic violence in Afghanistan is gradually improving but still faces major obstacles:
Progress is visible in:
Recognition of emotional and sexual abuse,
Willingness to prosecute without victim testimony,
Increasing application of EVAW Law.
Challenges remain:
Cultural norms,
Victim intimidation,
Legal gaps (e.g., no explicit provision for marital rape),
Uneven application between urban and rural areas.
Courts and prosecutors are starting to assert stronger roles, but broader legal reforms and public education are essential for long-term change.
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