The legal causes for dissolution of the marriage by court decision in the Civil Code of Afghanistan (In comparison with classical Islamic jurisprudence and codes of selected modern Islamic countries)

In the second chapter of the Afghanistan Civil Code of 1977, matters concerning family law are regulated. In this section, the family (art. 56-59), marriage contract (art. 60-89), legal results (art. 90-130), dissolution of marriage (art.131-197) and legal consequences resulting from the dissolution of marriage (art.198-336) are addressed. In article 131 of the Code, four forms are mentioned for the dissolution of the marriage union: fesh, talâq, hul and tefrîk. In this study, only the causes for dissolution of the marriage by court decision are examined. The subject is controversial in its details in the classical Islamic jurisprudence, which constitutes the source of the relevant articles of the Code. The regulations of the Civil Code of Afghanistan are studied in comparison with the regulations of the five classical schools of Islamic Law (Hanefî, Mâlikî, Şafiî, Hanbelî and Ca'ferî) and family law enactments of selected modern Islamic countries. The study consists of an introduction, two chapters and a conclusion. In the introduction, the history and outlines of the Afghanistan Civil Code, legal procedures concerning the dissolution of the marriage in different legal systems, discussions concerning the conceptual framework and legal outcome of the dissolution of the marriage by court decision in classical schools of Islamic law are summarized. In the second part, the causes for dissolution of the marriage by court decision in the legal system of Afghanistan are examined. Also in this chapter, discussions concerning the dissolution of the marriage by court decision due to bodily defect, illness, severe incompatibility and harm between the spouses, lack of maintenance, the husband's leaving home and his disappearance in classical Islamic law and related regulations in the enactments of the modern Islamic countries are explored. In this study, it is aimed to determine the legal nature of the dissolution of the marriage by court decision (tefrîq: literally separation) in the Afghan legal, also to analyze the causes for this form of dissolution in and to clarify the sources of the Code. The Afghanistan Civil Code was essentially based on the Hanafi School of law. However, the fact that causes women can depend on to apply to the courts are quite limited in the Hanafite school in comparison to the other schools of laws, made it for the drafter of the Code necessary to resort to the legal opinions other than the Hanafite's. Even though it is rare, the socio-economic conditions of the people have also been taken into consideration and thus new regulations has been introduced through independent legal reasoning based on the concept of maslaha (convenience, equity).