The Ruling of Zihar from the Perspective of Islamic Jurisprudence and Afghanistan's 1355 AH Civil Code

حكم الظِّهار في الفقه الإسلامي وقانون الأحوال المدنية الأفغاني لعام 1355هـ

Abstract

Zihār is a significant subject in Islamic jurisprudence, defined as the statement in which a man likens his wife to his mother or another woman permanently unlawful for him (maḥram), such as saying, “You are to me like my mother.” Such pronouncements are regarded as deeply offensive and create a serious barrier to the marital relationship, as they contradict the sanctity and dignity of women. The Qur’an explicitly addresses the issue of zihār, declaring it impermissible and prescribing expiation (kaffārah) as a remedial measure. This legislation demonstrates Islam’s recognition of the elevated status of women and its prohibition of practices that degrade or oppress them. In pre-Islamic Arabia (Jāhiliyyah), zihār was exploited as a means for husbands to harm or divorce their wives unjustly, but Islam abolished this practice, considering it sinful. The prescribed expiation involves one of three acts: freeing a slave, fasting consecutively for two months, or feeding sixty poor persons, depending on feasibility. The findings of this research indicate that zihār remains unlawful, carrying both moral and legal implications. However, a notable gap exists in Afghanistan’s Civil Code of 1355 AH, as it makes no reference to zihār, thereby leaving a lacuna in family law. To address this, legal reformers and scholars are encouraged to incorporate provisions regarding zihār in future amendments. Moreover, raising awareness through academic forums, religious sermons, and community programs is essential to educate society, ensure protection of women’s rights, safeguard family unity, and promote observance of the prescribed expiation by those who commit it.