Judicial Separation Due To Husband’s Absence: A Comparative Study Of Hanafi Jurisprudence And Afghan Civil Law

Abstract

The marriage contract is considered an important foundation for family stability and social order in both Islamic Sharia and legal systems. However, in certain circumstances, the prolonged absence or disappearance of the husband creates serious legal and social challenges for the wife. This issue is particularly significant in societies affected by war, migration, and insecurity, such as Afghanistan, where the fate of women in cases of the husband’s absence has become an important legal and jurisprudential matter. This study aims to examine the issue of judicial divorce due to the husband’s absence or disappearance from the perspective of Hanafi jurisprudence and Afghan civil law in a comparative manner. This research is based on analytical and comparative methods, analyzing and comparing Islamic jurisprudential sources with the relevant provisions of Afghan civil law. The findings indicate that, according to Hanafi jurisprudence, a wife is not granted the right to seek separation solely based on her husband’s absence. In contrast, Afghan civil law allows a wife to request judicial divorce if the husband has been absent for three years. Furthermore, it appears that Afghan civil law in this regard has been largely influenced by Maliki and Hanbali jurisprudential opinions. The conclusion is that, in light of contemporary social conditions, it is necessary to ensure flexibility in jurisprudential opinions and the application of legal systems to protect women’s rights in cases of the husband’s absence or disappearance. Therefore, it is recommended that clear legal guidelines regarding judicial divorce be established, taking into account the objectives of Islamic jurisprudence and the needs of society.