March 12, 2016


[Since the fall of the Taliban government in 2001, the United States and other international donors have invested more than $1 billion in training judges and prosecutors, establishing new courts and helping draft a modern legal code for Afghanistan.]


Gul Momina says she was held in a dark room with a muddy floor. Sayed Hussain
says he did not kidnap her but instead responded to a text message from a girl he
did not know who identified herself as Gul Momina. (Photo illustration/ iStock
photos/Photo illustration/ iStock photos)

KABUL Gul Momina says she was only 15 when a man and his wife lured her from her home here in Afghanistan’s capital. They gave her a soda, she recalls. Then she blacked out.

When she woke, the teenager says, she found herself locked in a dark room with a muddy dirt floor. For the next 3 1/ months, by her account, the man beat and raped her while insisting that she was now his third wife.
Sayed Hussain, who is accused of attacking Gul Momina, tells a far different story. He never kidnapped her, he says. Rather, he received a text message in the fall of 2014 from a girl he had never met who identified herself as Gul Momina and said she loved him. She claimed to be an orphan and vowed to kill herself in front of his house if he did not marry her, he says.

Now, efforts to determine who is telling the truth have escalated into another test for a fragile Afghan justice system struggling to balance modern legal principles with laws shaped by local custom, endemic corruption and various interpretations of Islamic doctrine.
In a recent interview at the home of one of her relatives, Gul Momina, now 16, said that after weeks of captivity in which she was repeatedly whipped with a water pipe and cable wire, she escaped and returned to her family. Sayed Hussain, his wife and his father were arrested.
Sayed Hussain, however, said in an interview at his home that he had legally married Gul Momina. And in October, judges cited the purported marriage in freeing him, even though Afghan law states that girls under 16 cannot marry.
Like many Afghans, neither Gul Momina nor Sayed Hussain has a last name.
Ali Farhang, a lawyer for Gul Momina’s family who wants the Afghan Supreme Court to intervene, scoffed at the decision.
“In this case, even a person who doesn’t understand law could understand the truth,” he said.
Since the fall of the Taliban government in 2001, the United States and other international donors have invested more than $1 billion in training judges and prosecutors, establishing new courts and helping draft a modern legal code for Afghanistan.
But Afghan lawyers and advocates of legal reform say the justice system remains stacked against women and undermined by bribery and the erratic application of laws. The situation is so bad, they say, that many qualified judges and lawyers are leaving the profession.
“Everyone in the justice system has lost morale,” said Abdul Subhan Misbah, the vice president of Afghanistan’s lawyers union.
Gul Momina’s case provides an unusually revealing window onto the sorts of issues with which judges here must wrestle.
Before her alleged abduction, the teen said, she worked for Sayed Hussain’s wife as an embroiderer. In late 2014, she said, she got a call to pick up fabric.
“They were drinking a soda, and they offered me a beverage, which was uncapped,” she said.
The next thing she remembers is being locked in the muddy room. Sayed Hussain’s elderly father, who also lived at the house, was standing over her.
“When I started crying and shouting, ‘I want to go home,’ the father hit me with something on the back of my head,” she said.
Gul Momina said Sayed Hussain began referring to her as his “third wife.” Another woman in the house, who told her she also had been abducted, was the supposed second wife. Under Afghan law, men are allowed up to four wives.
Meanwhile, Gul Momina’s father was searching for his daughter.
“I went to the 17 police districts of Kabul city and gave her picture to them,” Mohammad Anwar said. “I went to every single hospital.”
After his daughter escaped, he said, she came home covered in bruises and unable to stand. But when they went to a police station, an officer “slapped my daughter in front of my eyes telling her, ‘Your condition is not that bad,’” he said.
Other police officials investigated her claims, and Sayed Hussain, his wife and his father, Sayed Ishaq, were arrested in January 2015 and charged with abduction and assault. Sayed Hussain also was charged with rape.
But Sayed Hussain, a truck driver, says he and his family are the victims. He said that after he received the text message “from an unknown number” asking him to call, he had several phone conversations and meetings with Gul Momina and that she eventually proposed to him. 
He denied that she ever did embroidery work for the family, saying he thinks she got his phone number from an ad for his trucking business.
When she proposed, he said, he insisted that she get permission from her father and brothers, as is customary in Islamic culture, but he said that Gul Momina told him she had no living relatives. Sayed Hussain said she claimed to be 19.
“I told her I already have four wives,” he said, adding that at the time he had only one. “She said, I don’t care if you have 10. I will be the eleventh.”
Then, Sayed Hussain said, Gul Momina threatened that if he did not marry her, “she would grab a knife and kill herself in front of my gate.”
Twelve days after they first met, he said, they were married by a Shiite cleric. Both Sayed Hussain and his father denied they ever struck Gul Momina when she was in their home.
Asked why she had fled, Sayed Hussain said his family may have been too rigid for her. “We are a strict family,” he said, adding that about 20 people live in the same house. “We don’t let the women go out. ... The women inside our house don’t use cellphones.”
Sayed Hussain spent nine months in prison. But in court, he produced a copy of a marriage certificate and a statement from the cleric who he said officiated the wedding.
Gul Momina denies that a wedding took place, but the judge dropped all charges against Sayed Hussain’s wife and father. Sayed Hussain was convicted of domestic abuse but was cleared of rape and kidnapping. After an appellate court upheld the verdict, he was released from prison in October.
Mohammad Anwar, outraged, is appealing the ruling to the Supreme Court. “I will fight with every last drop of blood until I get justice,” he said.
He and his attorney say they suspect that political pressure was brought to bear on the lower courts. According to Mohammad Anwar, a prominent member of Afghanistan’s National Assembly who belongs to the same Shiite sect as Sayed Hussain’s family called him recently, demanding that he return his daughter “to her husband.” The lawmaker says she knows nothing about the case.
Sayed Hussain and Sayed Ishaq said that while they were in prison, their relatives did try to negotiate with Gul Momina’s family about what it would take for them to return her to him. But they deny having political connections.
“Now I don’t even want her back,” Sayed Hussain said.
In a brief interview, one of the appellate court judges, Matiullah Amarkheli, defended the ruling, noting the marriage certificate and the testimony of the cleric. He referred further questions to the chief appellate judge, Shir Mohammad.
Mohammad also declined to comment but said that “there is a difference between sharia law and Afghan law” concerning the legal age for a girl to marry.
“There are thousands of cases,” he said. “Why are you focusing on this one?”
In Afghanistan, about 15 percent of girls are married before age 15, according to UNICEF. When underage girls in Afghanistan try to leave their husbands, some are prosecuted for “attempted adultery,” according to Jean Lieby, head of UNICEF Afghanistan’s child protection unit.
In this case, said Misbah, the lawyers union official, it appears that the lower courts decided to free Sayed Hussain on the basis of their interpretation of Islamic law — which generally sets puberty as the threshold age for marriage — instead of what the Afghan code specifies.
And, noted Misbah, whatever flaws exist in the justice system in Kabul, “it’s way, way worse” in rural areas.
Mohammad Sharif contributed to this report.
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