ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
511
SUFFICIENCY OF CRIMINAL LAW IN PROTECTING WOMEN AGAINST FORCE
MARRIAGE IN AFGHANISTAN, MALAYSIA AND ISLAM: A COMPARATIVE
ANALYSIS
Zarifa Abbasy
Teaching Assistant.
Department of Criminal Law in Faculty of Law and Political Science, Jawzjan University,
Jawzjan, Afghanistan.
zarifa.abbasy@gmail.com.
Abedin Ahmadi
Teaching Assistant.
Department of Civil Law in Faculty of Law and Political Science, Jawzjan University,
Jawzjan, Afghanistan.
https://doi.org/10.5281/zenodo.14519317
Abstract. Forced marriage is a union where one or both parties are coerced into marriage
without their free and informed consent, often under threats, pressure, or abuse. The primary
purpose of this research is a comparative study of the sufficiency of criminal law in protecting
women against forced marriage in Afghanistan, Malaysia and Islam. Its conformity with the Holy
Quran Collecting data via library and document search, descriptive-analytical and comparative
methods were used to examine the conditions and the differences and similarities of the legal
systems of the three mentioned countries in the field of forced marriage; it has been used. The
research reveals that while Afghanistan and Malaysia criminal forced marriages and stress the
necessity of consent, their legal systems differ significantly in enforcement and societal practices.
Afghanistan’s Elimination of Violence against Women (EW) Law (2009) aims to address forced
marriages but is hampered by weak enforcement and cultural resistance. In contrast, Malaysia’s
dual legal system provides stronger institutional support, although exceptions for early marriages
in law present challenges. Islamic law across both countries prohibits forced marriages,
emphasizing mutual consent, yet inconsistent application and cultural norms can weaken these
protections. The study concludes that effective enforcement, public awareness, and cultural
alignment are essential for the sufficiency of legal protections for women, the need for stronger
judicial mechanisms and public education to enhance these protections.
Keywords: forced marriage, Islamic principles, justice, Legal System, Afghanistan,
Malaysia.
ДОСТАТОЧНОСТЬ УГОЛОВНОГО ПРАВА ДЛЯ ЗАЩИТЫ ЖЕНЩИН ОТ
ПРИНУДИТЕЛЬНЫХ БРАКОВ В АФГАНИСТАНЕ, МАЛАЙЗИИ И ИСЛАМЕ:
СРАВНИТЕЛЬНЫЙ АНАЛИЗ
Аннотация. Принудительный брак – это союз, в котором одну или обе стороны
принуждают к браку без их свободного и осознанного согласия, часто под угрозами,
давлением или насилием. Основной целью данного исследования является сравнительное
изучение достаточности уголовного права для защиты женщин от принудительного
брака в Афганистане, Малайзии и исламе. Его соответствие Священному Корану. С
помощью сбора данных посредством библиотечного и документального поиска,
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
512
описательно-аналитических и сравнительных методов были изучены условия, различия и
сходства правовых систем трех упомянутых стран в сфере принудительных браков; оно
было использовано. Исследование показывает, что, хотя Афганистан и Малайзия
криминализируют принудительные браки и подчеркивают необходимость согласия, их
правовые системы существенно различаются в правоприменении и общественной
практике. Закон Афганистана о ликвидации насилия в отношении женщин (EW) (2009 г.)
направлен на решение проблемы принудительных браков, но этому препятствует слабое
правоприменение и культурное сопротивление. Напротив, двойная правовая система
Малайзии обеспечивает более сильную институциональную поддержку, хотя
законодательные исключения для ранних браков создают проблемы. Исламское
законодательство в обеих странах запрещает принудительные браки, подчеркивая
взаимное согласие, однако непоследовательное применение и культурные нормы могут
ослабить эту защиту. В исследовании делается вывод, что эффективное
правоприменение, осведомленность общественности и культурное единство необходимы
для достаточности правовой защиты женщин, а также необходимы более сильные
судебные механизмы и просвещение общественности для усиления этой защиты.
Ключевые слова: принудительный брак, исламские принципы, правосудие, правовая
система, Афганистан, Малайзия.
INTRODUCTION
Forced marriage is a significant violation of human rights, affecting millions of women and
girls globally. In Islam, marriage is considered a solemn covenant, with specific requirements set
by the Qur'an.
1
Both parties must give their free and informed consent. The Quran and other
Islamic texts confirm the prevention of compulsory relationships and promote consensual
relationships. In Islam, no one can be coerced into marriage against their will, and this practice has
no basis in Sharia.
2
In Afghanistan, forced marriage is not explicitly prohibited, but Article 77
requires parties' consent for marriage to be lawful and enforceable. This includes accurate offer
and acceptance, presence of two competent witnesses, and absence of legal impediments. Marriage
formalizes the union and establishes responsibilities and rights. In Malaysia, the Marriage, Divorce
and Reconciliation Registry (RJUK) outlines stages of Muslim marriage, with both parties
applying directly. The Islamic Family Law Enactment of Selangor 2003 (EUKIS) is used in this
study, requiring paperwork, permission from a legal guardian, and a wedding ceremony.
3
Cultural
traditions often override Islamic teachings in Afghanistan , leading to practices like child marriage
and baad. Civil law allows exceptions with parental consent, while EVAW Law criminalizes
forced marriage, but enforcement remains inconsistent due to weak judicial systems and cultural
1
UNICEF.
(2020).
Child
marriage:
Latest
trends
and
future
prospects.
Retrieved
from
https://data.unicef.org/topic/child-protection/child-marriage/
, (accessed 26 Jun 2024). P 3
2
Zarifa Abbasy, “
Adequacy of Criminal Law in Protecting Women against Domestic Violence in Afghanistan,
Malaysia and Islam: A comparative evaluation”,
(Master. Thesis, International Islamic University Malaysia, 2022),
168.
3
Prof Dato Noor Aziah and et al, “Child Marriage in Malaysia
", University Kebangsaan Malaysia for UNICEF
Malaysia
, vol3.no.2 (2018).47.
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
513
resistance. Malaysia's Islamic Family Law Act 1984 and Child Act 2001 may legitimize forced
marriages, particularly in rural areas. However, inconsistent application and cultural norms can
interfere with enforcement. This misalignment between Islamic principles and cultural practices
in Afghanistan and Malaysia's legal systems leads to human rights violations, weakening the rule
of law, perpetuating gender inequality, and posing health risks. This research evaluates the
effectiveness of criminal law in protecting women from forced marriage in Afghanistan and
Malaysia, focusing on Islamic law, analysing legal protections, enforcement challenges, cultural
influences, and practical application. The main objectives of the current research are, to analyse
and compare the criminal laws in Afghanistan and Malaysia regarding forced marriage and their
alignment with Islamic principles, to investigate the effectiveness of law enforcement and judicial
systems in protecting women from forced marriages in
both countries, to examine the cultural and societal factors that influence the prevalence of
forced marriages and the implementation of legal protections, to identify gaps in legislation and
practical enforcement that hinder women's rights and protections against forced marriage, to
compare the legal frameworks for protecting women from forced marriages by identifying their
similarities and differences.
To achieve the objectives, the researcher designed these questions:
1.
What are the key provisions of criminal law in Afghanistan and Malaysia concerning
forced marriage, and how do they compare to Islamic law?
2.
How effective are law enforcement agencies and judicial systems in enforcing laws against
forced marriage in Afghanistan and Malaysia?
3.
What are the similarities and differences between the two countries' legal systems regarding
forced marriage?
4.
What cultural and societal factors contribute to the persistence of forced marriage in both
countries, despite existing legal frameworks?
5.
What specific gaps exist in the legislation and enforcement of laws protecting women from
forced marriage in Afghanistan and Malaysia?
Given that a portion of this research examines the concept of forced marriage in Islam,
numerous studies related to the research topic can be found; the present paper sheds light on the
issue from different perspectives, comparing existing laws on forced marriage in two different
countries. Hence, this research focuses on the civil laws as well as other related law of the two
mentioned countries on the issue of forced marriage and compares them with Islamic rules. More
specifically, it focuses on the shortcomings in Malaysia and Afghanistan’s Acts in support of
women. In the form of a comparative study to open new horizons in differences, commonalities,
and loopholes in Afghanistan and Malaysia’s Civil Codes as well as other related law in the issue
of forced marriage. The reason for choosing Afghanistan, Malaysia, for comparative study on
forced marriage are religious and cultural commonalities, as well as identifying key factors
influencing each country's approach to forced marriage and exploring similarities and differences
in their legal systems. Therefore, first of all, the researcher discusses the issue of forced marriage
from the point of view of the holy religion of Islam and then in the legal systems of the two
countries mentioned above using library-based research via analytical-descriptive and comparative
methods.
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
514
Sufficiency of criminal law in protecting women against force marriage in
Afghanistan, Malaysia and Islam: A comparative Analysis
A. The definition and concept of force marriage
The word "forced" indicates a person does not agree to and has no intention of entering
into a marriage contract. According to custom, a forced marriage occurs when relatives, especially
parents, force someone to marry despite the resistance or lack of agreement of both parties and one
of the parties. Coercion can be physical, spiritual, or emotional, and may include harassment,
detention, and forced isolation, threats of death and deprivation of food and water, threats of
expulsion from the family, relationship separation, and non-payment of alimony. Forced marriages
primarily affect girls, although males in the family may also be victims of this form of
compulsion.
4
B. Forced Marriage: From the perspective of the Holy Quran
The marriage described in the Qur'an encourages modesty, reproduction, and the love and
satisfaction of both partners. Allah (SWT) approves of the institution of marriage, which the Qur'an
states as follows:
َمْح َر َو ًةَّد َوَم ْمُكَنْيَب َلَعَج َو اَهْيَلِإ اوُنُكْسَتِل اًجا َو ْزَأ ْمُكِسُفْنَأ ْنِم ْمُكَل َقَلَخ ْنَأ ِهِتاَيآ ْنِم َو
ٍم ْوَقِل ٍتاَي َلَ َكِلَذ يِف َّنِإ ًة
َنو ُرَّكَفَتَي
﴿
۲۱
﴾
“And among His signs is this that He created for you mates from among yourselves, that
you may dwell in tranquility with them, and He has put love and mercy between your hearts.”
5
The Qur'an establishes several essential prerequisites for marriage, including as the need
for an agreement between two individuals, who understand their duties and obligations to one
another. Marriage, classified as "meethaqan ghaleezan" (the most serious kind of commitment in
Islam), requires both parties' free and informed assent.
6
ُكُضْعَب ىَضْفَأ ْدَق َو ُهَنوُذُخْأَت َفْيَك َو
اًظيِلَغ اًقاَثيِم ْمُكْنِم َنْذَخَأ َو ٍضْعَب ىَلِإ ْم
﴿
۲۱
﴾
The Qur'an emphasizes the importance of mutual consent in Islam for successful marriages.
It includes assessing compatibility, finding common ground,
7
agreeing on mahr (dowry),
8
consenting on additional conditions, a man's ability to support his family,
9
and Rushd (maturity)
for handling personal issues. Forced marriage is not supported in Islam, and both men and women
must obtain Rushd before marriage.
The following verse is often cited to demonstrate that marriage should be based on the free
will and agreement of both parties:
۟اوُبَهْذَتِل َّنُهوُلُضْعَت َلَ َو ۖ ا ًًۭه ْرَك َءٰٓاَسِ نلٱ ۟اوُث ِرَت نَأ ْمُكَل ُّل ِحَي َلَ ۟اوُنَماَء َنيِذَّلٱ اَهُّيَأٰٓ ـَي
ُهوُمُتْيَتاَء ٰٓاَم ِضْعَبِب
نَأ ٰٓ َّلَِإ َّن
ْيَش ۟اوُه َرْكَت نَأ ٰٓ ىَسَعَف َّنُهوُمُتْه ِرَك نِإَف ۚ ِفو ُرْعَمْلٱِب َّنُهو ُرِشاَع َو ۚ ٍٍۢةَنِ يَبُّم ٍٍۢةَش ِح ـَفِب َنيِتْأَي
.ا ًًۭريِثَك ا ًًۭرْيَخ ِهيِف ُ َّللَّٱ َلَعْجَي َو اًۭ ـ
This verse addresses several important issues regarding women’s rights in marriage, as
fallowing:
4
Shafaee, Abdullah. (2023, 6 Jun). Understanding forced marriage in Afghanistan: concepts and context
part(1)https://www.securitypraxis.eu/understanding-forced-marriage-in-afghanistan-concepts-and-context-part-i/,
(accessed 17 July 2024).
5
Ar-Rum,21/30.
6
Al-Nisa 21/4
7
Al-Baqara 221/2
8
Al-Nisa 24/4
9
Al-Bagara 228/2
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
515
1.
"It is not lawful for you to inherit women by compulsion":
The verse prohibits treating women as property or forcing them into marriage, stating that
such practices are unacceptable in Islam. It emphasizes that marriage must be voluntary, especially
for women, and that forcing a woman into marriage contradicts the core principles of mutual
agreement
2.
"
And do not make difficulties for them in order to take [back] part of what you
gave them...":
The verse addresses unfair treatment in marriage, promoting fairness, respect, and
avoidance of manipulation. It protects women from forced marriages and emotional or financial
abuse, ensuring a relationship based on respect, kindness, and justice.
10
Moreover, according to
the surah Ar-Rum Allah (SWT) said that:
ًًۭةَّد َوَّم مُكَنْيَب َلَعَج َو اَهْيَلِإ ۟ا ٰٓوُنُكْسَتِ ل ا ًًۭج َو ْزَأ ْمُكِسُفنَأ ْنِ م مُكَل َقَلَخ ْنَأ ٰٓۦِهِت ـَياَء ْنِم َو
ٍٍۢم ْوَقِ ل ٍٍۢت ـَيأَـَل َكِل َذ ىِف َّنِإ ۚ ًةَمْح َر َو
َنو ُرَّكَفَتَي
This verse establishes that marriage should be built on love, mercy, and tranquillity. A
forced marriage, where a person is unwilling or unhappy, contradicts the very essence of this
teaching. Victims of forced marriage can take solace in the fact that Islam views marriage as a
peaceful and mutually respectful bond, giving them the religious and moral basis to seek help or
exit a forced situationFurthermore, in
11
.
surah Al-Baqarah Allah (SWT) emphasizes the importance of mutual agreement in
marriage which stated:
َب ۟ا ْوَض َرَت اَذِإ َّنُهَج َو ْزَأ َنْحِكنَي نَأ َّنُهوُلُضْعَت َلََف َّنُهَلَجَأ َنْغَلَبَف َءٰٓاَسِ نلٱ ُمُتْقَّلَط اَذِإ َو
َناَك نَم ۦِهِب ُظَعوُي َكِل َذ ۗ ِفو ُرْعَمْلٱِب مُهَنْي
َنوُمَلْعَت َلَ ْمُتنَأ َو ُمَلْعَي ُ َّللَّٱ َو ۗ ُرَهْطَأ َو ْمُكَل ىَك ْزَأ ْمُكِل َذ ۗ ِر ِخأَـْلٱ ِم ْوَيْلٱ َو ِ َّللَّٱِب ُنِم ْؤُي ْمُكنِم.
12
The verse emphasizes the importance of mutual agreement in marriage, highlighting the
right of individuals to choose their spouse based on their free will. This verse is crucial for victims
of forced marriage, providing a religious foundation to reject coercion and seek justice. The verses
promote love, respect, and kindness, empowering victims to reject forced marriages and pursue
their own lives.
C. Sufficiency of Criminal law in Protecting Women against Force Marriage in
Afghanistan, Malaysia
1. Afghanistan
Forced marriage in Afghanistan is a significant issue, despite existing legal frameworks.
Enforcement remains a challenge, highlighting gaps and barriers in safeguarding women's rights.
1.1 Available Production under the Law on Elimination of Violence against Women
in Afghanistan (EVAW) 2009, Civil Law, Constitution and Penal Code of Afghanistan.
1.1.1 Protection from Forced Marriage under the Constitution
The Afghan Constitution does not explicitly prohibit forced marriage, but it emphasizes
equal rights for men and women, particularly in marriage, indicating a commitment to gender
equality.
13
It recognizes that both men and women have equal rights and responsibilities before
the law.
10
. An- Nisa: 4/19
11
. Ar- Rum: 30/21
12
. Al- Baqarah: 2/232
13
The Constitution of the Islamic Republic of Afghanistan 200, Article (22).
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
516
Article 38 ensures the home is free from invasion, which serves as a protective measure for
women within the household.
14
The National Action Plan for Afghan Women (2007-2017)
identifies forced marriages as a significant factor contributing to high dropout rates among girls.
Additionally, various provisions in the Constitution, particularly.
15
Articles 23 (right to
life), 24 (right to liberty and human dignity), and 29 (immunity from torture), can be interpreted
as protections for women against harmful customary practices. Overall, the Constitution seeks to
ensure the protection and rights of women, despite the challenges by customary laws.
1.1.1.2 Protection from Forced Marriage under the EVAW 2009
Unfortunately, traditional marital practices that are harmful to women's rights and are
incompatible with Islamic law, Afghan and international laws can still be found today, particularly
in regions controlled by militants or where the government is weak. Forcible weddings include
"forced marriage,
baad
marriage (retribution of a woman to settle a quarrel),
badal
marriage
(exchange marriage)", and pressure of husbandless wife to marry a family member of a dead
spouse. 70 to 80 percent of Afghan women are compelled to marry, according to surveys.
16
Anti-
Violence against Women is protected by Article 5. In total, there are 22 different forms of sex
baste abuse identified, including the buying and selling of women under the pretense of marriage,
the prohibition of selecting a husband, marriage before the legal age of consent, and bad marriages
(female retaliation to resolve a female retaliation).
1.1.1.3 Protection from Forced Marriage under the Civil Law
Forced marriage is not explicitly prohibited in the Civil Code of Afghanistan, but Article
77 emphasizes the consent of parties in marriage. Marriage is a formal contract that formalizes the
union of a man and a woman, establishing their responsibilities and rights.
17
However, in
Afghanistan, arranged marriage is common due to conservative and patriarchal society. Marriage
without consent is prohibited under Afghan law under EVAW 2009, punishable by short-term
imprisonment if someone inhibits a woman from marrying.
18
The International Covenant on Civil
and Political Rights (ICCPR) and Article 16(2) of the UDHR also require free and informed
consent for marriage. Women should not be coerced into marriage, and they have the right to
petition for their marriage to be annulled when they reach maturity.
19
3.
Malaysia
Forced marriage remains a global human rights violation, with concerns about the
effectiveness of Malaysia's criminal law in protecting women, focusing on legal provisions,
enforcement, and socio-cultural factors.
14
Farhoumand-Sims, and et al, “CEDAW and Afghanistan", International
Women's Studies,
vol.11, no.1 (2009):156.
15
Muhammad Aunurrochim bin Mas’ad, “Marriage Rights of Afghan Women in Traditional Practices and
Legislation Protection",
Ahkam,
vol. 3, no.2 (2014.): 16.
17
Civil Code of Afghanistan 1977, Article77.
18
Law on Elimination of Violence Against Women, 2009, Article 27.
19
Billaud, J, and et al, "Afghan Women: Identity and Invasion",
Academia
, London: Zed Books,
, (accessed 13 November , 2024).
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
517
1.2 Available Production under the Law on Elimination of Violence against Women
in Afghanistan (EVAW) 2009, Civil Law and Penal Code of Afghanistan.
1.2.1 Protection from Child and Forced Marriages under the Islamic Family Law Act
1984 and Law Reform (Marriage and Divorce) Act 1970
In Malaysia, the definition of a 'child varies across legal jurisdictions. According to the
Child Act 2001, a child is anyone under 18 years old. However, under the Guardianship Infants
Act 1961, for Muslims it remains under 18, while for non-Muslims, it extends to under 21. The
Adoption Act of 1952 defines a child as anyone under, regardless of marital status. These
definitions aim to promote children's welfare. Additionally, most Muslim countries follow
traditional Islamic jurisprudence, defining a child as someone has not reached puberty, which is
considered 12 lunar years Negeri Sembilan and Sabah, and 15 years in other states.
In Malaysia, the Law Reform (Marriage and Divorce) Act (LRA) sets the minimum
marriage age at 18 for men and 16 for women, with those under 18 needing special approval from
the Chief Minister to marry. Child marriage remains a contentious issue, often driven by factors
such as family poverty, low household income, school dropout rates, and inadequate knowledge
of sexual and reproductive health, as highlighted by a 2018 UNICEF report.
20
SUHAKAM
advocates for the complete abolition of child marriage and supports initiatives to raise the
minimum marriage age to 18, emphasizing the benefits for education, health, and reducing child
poverty.
21
In Malaysia, the marriage age is 18 for Muslim boys and 16 for Muslim girls, with
exceptions for minors allowed with Sharia Court approval. Non-Muslims can marry girls aged 16
and older. Islam does not set a minimum age for marriage, raising concerns about child marriage,
especially when girls are forced into marriage without consent. The extent of child and forced
marriages linked to domestic violence is unclear, but family elders may play a significant role in
such situations.
1.2.4 Protection from Child and Forced Marriages under the Penal
Code
There is no specific provision regarding child or forced marriages under the Criminal law.
Nevertheless, Section 366 of the Penal Code punishes those who kidnap or abduct a female
in order to force her into illegal sexual relations or marriage. In Malaysia, anyone other than a
woman's spouse who has sexual relations with her is guilty of rape under Penal Code Section 376,
which prohibits "sexual relations with a minor under the age of 16". This is known as statutory
rape. Even for Muslims, if a girl is raped or has sexual intercourse with a man, the man can be
charged with rape of a child.
4.
Comparison Analysis
This section compares the legal provisions available in the two mentioned countries and
Islamic principles regarding the forced marriage; the objective of this comparative analysis is to
determine the efficacy of the laws and their concordance with Islamic.
principles, and if there are loopholes, what actions can be taken to improve the law in the
20
Kohno, Ayako, and et al., "In-depth Examination of Issues Surrounding the Reasons for Child Marriage in Kelantan,
Malaysia: A Qualitative Study”,
BMJ Open,
vo. l3, no.9 (2019):1
.
21
The Debate of the SUHAKAM annual Report 2018 in Parliament, https://suhakam.org.my/2019/12/debate-of-the-
suhakam-annual-report-2018-in-parliament/ , (accessed 18 October, 2024).
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
518
countries better? As mentioned earlier, In Islam, forced marriage is not permissible. Marriage is
viewed as a mutual contract that requires the free and informed consent of both parties. The Quran
and Hadith emphasize the importance of consent in marriage, and the Prophet Muhammad
explicitly condemned forced marriages. While cultural practices in some regions may contradict
this, Islamic teachings uphold that both men and women must willingly agree to marriage for it to
be valid. Thus, forced marriages are considered un-Islamic and against the principles of justice
and equality in Islam.
However, the practice and acceptance of forced marriage vary across Islamic countries
and regions; for instance, the legal frameworks in Afghanistan and Malaysia regarding forced
marriage and the protection of women's rights share some similarities, but they also differ in terms
of implementation, cultural context, and scope. EVAW (Afghanistan) and Malaysian Penal Code
(Section 366) both explicitly prohibit forced marriages. Section 366 criminalizes the act of forcing
a person into marriage through coercion or abduction, while EVAW Articles 26, 27, and 28
emphasize women's consent in marriage and penalties for violators. The Islamic Family Law Act
1984 (Malaysia) also recognizes the requirement of consent in marriage for Muslim individuals,
reflecting Islamic principles similar to Afghan law. Both Afghanistan and Malaysia, under their
respective laws, require free consent for marriage. EVAW (Article 26) and the LRA 1970 in
Malaysia both ensure that marriage without consent is illegal and not valid reflecting international
human rights norms. The laws in both countries set minimum age for marriage. Under Afghan
law (Article 26), marriage is prohibited below a certain age, and in Malaysia, the LRA 1970 sets
the minimum age for non-Muslims at 18, while the Islamic Family Law Act 1984 sets the age for
Muslims but allows exceptions with judicial approval. Moreover, Afghanistan’s EVAW Law is
comprehensive in addressing various forms of violence against women, including forced marriage.
Similarly, Section 366 of the Malaysian Penal Code is clear in its criminalization of forced
marriages. Not only this, both countries integrate Islamic principles, ensuring that legal
frameworks are culturally and religiously relevant, thus enhancing their acceptance in Islamic
societies. Regardless of the similarities mentioned above, there are a series of fundamental
differences regarding forced marriage in the laws of Afghanistan and Malaysia, which are the most
important differences between the laws of the above-mentioned Islamic countries in the issue.
Firstly, EVAW Law in Afghanistan focuses specifically on preventing violence against
women and is limited to protecting women's rights, including forced marriage. In contrast,
Malaysia has separate
laws governing Muslim and non-Muslim marriages. The LRA 1970 deals with non-Muslim
marriages, while the Islamic Family Law Act 1984 governs Muslim marriages. This dual system
is not present in Afghanistan’s unified EVAW Law.
Secondly, Malaysia’s legal system incorporates both civil and Sharia laws, with a stronger
institutional framework and a functioning judiciary for enforcement. Afghanistan's enforcement
of EVAW laws is weaker, particularly due to cultural and traditional barriers. The current situation
also impacted women's rights significantly, limiting the practical enforcement of these laws.
Thirdly, Section 366 of the Malaysian Penal Code prescribes criminal penalties, including
imprisonment, for anyone involved in forcing a person into marriage.
Afghanistan's EVAW Law (Articles 26, 27, 28) also prescribes penalties, but enforcement
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
519
and punishment may vary due to Afghanistan’s weaker legal infrastructure. Fourthly, in
Afghanistan under article 26 prohibits all forms of forced marriage and imposes a penalty on those
who engage or marry a woman who has attained the legal marriage age without her consent: he
will be sentenced to medium imprisonment for at least two years, and the marriage or engagement
will be invalidated. The Act, on the other hand, does not define the word consent. Hence, in a
country such as Afghanistan where the majority of people are illiterate, they do not have
knowledge and awareness in the main sense of consent in marriage. It is an important and main
responsibility of the legislator that they must provide clearly the keywords of the offences
regarding domestic violence. In Afghanistan since marriage is a family matter which is considered
by an extremely robust masculine system, the social system is highly stratified by gender.
Marriages between both genders are frequently organized by their relatives. These
marriages are widespread between relatives, as well as within groups and clans. Neither males nor
females are permitted to violate their families' wishes about marriage partners. Women and men
with advanced degrees are unable to influence their families' decisions about who they marry or
when they wed.
In contrast, forced marriage is covered under the child marriage issue in Malaysian
legislation. There is no specific provision on forced marriage and its punishment. However, it is
unclear whether there are any differences between forced marriage and child marriage under the
aforesaid laws. As a result, the government should consider including the concept of forced
marriage in the Act. It should also provide enough protection against forced marriage to assist the
victims. Furthermore, the legislation should offer a detailed overview of the definition, forms, and
penalties of forced marriage, particularly for compulsory marriage of widows.
5. CONCLUSION
The research confirmed that Afghanistan and Malaysia governments have indeed attempted
to develop a comprehensive law for combating forced marriage. Of course there is still much to
be done if the issue of forced marriage is to be addressed effectively by the both governments.
while all three systems—Afghanistan’s EVAW law, Malaysia’s legal framework, and Islamic
teachings—provide important safeguards against forced marriage, their sufficiency depends
largely on the strength of enforcement, public awareness, and cultural acceptance. Afghanistan
faces the greatest challenges due to weak legal infrastructure, while Malaysia, with its more
structured legal framework, offers better protection. Islamic principles, when properly applied,
serve as a strong foundation for preventing forced marriages, but societal practices must align with
these teachings for full effectiveness. Strengthening legal enforcement, promoting education on
women’s rights, and ensuring judicial consistency are key steps needed in both Afghanistan and
Malaysia to better protect women from forced marriage. As a result, all the changes will only be
possible with a strong political will of the governments as well as the support of the both counties’
people to change for the better. it is time for us to recognise that men and women are equally. only
by accepting this fact can we work together to improve the situation in both mentioned countries.
REFERENCES
1.
Al- Quran.
2.
Abbasy,
Zarifa. Adequacy of Criminal Law in Protecting Women against Domestic
ISSN:
2181-3906
2024
International scientific journal
«MODERN
SCIENCE
АND RESEARCH»
VOLUME 3 / ISSUE 12 / UIF:8.2 / MODERNSCIENCE.UZ
520
Violence in Afghanistan, Malaysia and Islam: A comparative evaluation.Kuala Lumpur:
International Islamic University Malaysia, Master. Thesis, 2022.
3.
Billaud, J, and et al, "Afghan Women: Identity and Invasion",
Academia
, London: Zed
Books,
https://www.academia.edu/864390/ElahehRostami_Povey_Afghan_Women_Identity_and_
Invasion._London_Zed_Books 2007.159_pp, (accessed 13 June, 2024).
4.
Dato Noor Aziah, P., et al. (2018). Child Marriage in Malaysia. Universiti Kebangsaan
Malaysia for UNICEF Malaysia, 3(2), 47.
5.
Diaz, C., et al. (2016). The Effects of Teen Pregnancy: Reconciling Theory, Methods, and
Findings. Demography, 53(1), 85.
6.
Equalitynow.org, "What Are the Long Term Impacts of Child Marriage? You’re Questions
Answered",
Equality
Now
a
Just
World
for
Women
and
Girls,
https://www.equalitynow.org/long_term_impacts_child_marriage, (accessed 4 June, 2024).
7.
Farhoumand-Sims, N., et al. (2009). CEDAW and Afghanistan. International
Women's Studies, 11(1), 156.
8.
Human
Rights
Commission
of
(SUHAKAM)
annual
Report
2019,
https://suhakam.org.my/2021/03/annual-report-2019/ , (accessed 7 June, 2021).
9.
John, N. A., et al. (2019). Child Marriage and Psychological Well-Being in Niger and
Ethiopia. BMC Public Health, 19(3), 12.
10.
Kohno, A., et al. (2019). In-depth Examination of Issues Surrounding the Reasons for Child
Marriage in Kelantan, Malaysia: A Qualitative Study. BMJ Open, 3(9), 1.
11.
Mohamad, Yunus. (2020). Criminal responsibility and its exception: Harmonization
between Islamic criminal law and Malaysia Penal Code. Kuala Lumpur: UTHM publication.
12.
Ministry of Justice. (2003). Constitution of Islamic republic of Afghanistan, Kabul: Printing
and Industrial Press.
13.
Ministry of Justice. (2009). Law on elimination of violence against women, Kabul:
Publishing Department of Ministry of Justice.
14.
Ministry of Justice (1977). Afghanistan civil law, Kabul: Department of Publication of the
Ministry of Justice.
15.
Ministry of Justice. (2017). Afghanistan penal code, Kabul: Department of Publication of
the Ministry of Justice.
16.
Muhammad Mas’ad Aunurrochim, Mariam Saidona Tagoranao, Hekmatullah Muradi, &
Faiz Murad. (2014). Marriage rights of Afghan women in traditional practices and legislation
protection,
AHKAM: Jurnal Ilmu Syariah
vol.3.no.1. January 2014 Issued. pp14-15.
17.
Shafaee, Abdullah. (2023, 6 Jun). Understanding forced marriage in Afghanistan: concepts
and
context
part(1)https://www.securitypraxis.eu/understanding-forced-marriage-in-
afghanistan-concepts-and-context-part-i/, (accessed 17 July 2024).
18.
The
Debate
of
the
SUHAKAM
annual
Report
2018
in
Parliament,
https://suhakam.org.my/2019/12/debate-of-the-suhakam-annual-report-2018-in-
parliament/, (accessed 3 October, 2024).
19.
UNICEF. (2020).
Child marriage: Latest trends and future prospects.
Retrieved from
20.
https://data.unicef.org/topic/child-protection/child-marriage/, (accessed 26 Jun 2024). P 3.
