Putting the record straight
What we often see in Afghanistan - instead of religious elements reforming tribal customs in accordance with the teachings of Islam - is people who purport to be religious, becoming even more tribal than others.
The Kunduz Case
Take the case of Khayyam and Siddiqa, a couple from Kunduz who were stoned to death, apparently with the approval of local religious authorities.From accounts of the story, it appears the couple had eloped to Pakistan, but were lured back to Kunduz with the false promise that they would not be harmed.
This means that the couple wanted to get married. In fact, they may well have got married in secret. According to Hanafi jurisprudence, which is supposed to be followed in Afghanistan, this is their right, even if it is not the preferred course of action. The correct course of action for a young couple is that they should be married with the approval of their parents. However, if a young couple wish to marry, and their parents do not approve, no one is allowed to stand in their way.
I remember Sheikh Hasan Jan, formerly Sheikh-ul-Hadith in Imdad-ul-Uloom madrassah in Peshawar, being asked this very question: what if a young couple elope together and marry without the approval of their parents - in the case of a woman, without the approval of her guardian (ولي)? It is wrong for them to do this, the Sheikh replied, but if they do it, there is nothing that can be done about it. Their marriage is valid. In fact, Sheikh Hasan Jan was articulating the consensus of Sunni scholars of the Hanafi school:
تجوز مباشرة العاقلة البالغة عقد نكاحها…... مطلقا إلا أنه خلاف المستحب وهو ظاهر المذهب
(مرقاة المفاتيح شرح مشكاة المصابيح، كتاب النكاح، باب الولي فى النكاح و استئذان المرأة)
"An adult woman of sound mind is allowed to tie her own marriage-bond……… but this is not the preferred course."Along with the story of this young couple on the BBC web-site, there is a statement of a spokesman of an armed opposition group in Afghanistan. Speaking to the BBC, he asserted: "Anyone who knows about Islam knows that stoning is in the Koran, and that it is Islamic law”.
This contrasts sharply with the position of the erstwhile Taliban government. I personally know of cases in which a young man and young woman eloped during the time of the Taliban government in Afghanistan. When one case came to the attention of the authorities, the authorities sanctioned the marriage, while at the same time detaining the man in question. In the meantime they arranged negotiations and discussions - known among Afghans as jirgas - between the family of the bride and the groom. Once a settlement had been reached, the groom was released from custody and the marriage was allowed to stand. The reason for the detention order in the case of the groom, as I was told by a local Islamic scholar, was "so that others should not be encouraged to do the same thing. Since this is not the preferred course of action in Islam, a detention is in order. But the marriage should be allowed to stand."
To come back to the recent statement of the spokesman of an armed opposition group in Afghanistan, we should be clear that there is no mention in the Quran about stoning being the punishment for fornication of any kind. At the same time, Islam seeks to build a highly moral society. Islam - as does Christianity and other religions - does not condone sexual relationships outside marriage. Islam has even sanctioned various forms of corporal and even capital punishment for adultery. The justification for adultery being a capital offence comes from Hadith - Traditions of the Holy Prophet - not from the Quran. Furthermore, in accordance with Islamic jurisprudence, a death sentence can only be administered in the case of two people who are already married, and have a relationship with each other outside wedlock. In the case of two people who are not married, there is no justification, anywhere in Islamic scriptures or jurisprudence, for administering a death sentence. The most serious punishment that can be administered in the case of such a misdemeanour is corporal punishment, but even this does not apply in the case of the couple from Kunduz, who had eloped with each other - in effect they had married in secret. As explained above, the marriage of such couples should be allowed to stand.
Instead of punishing young couples who wish to live a married life together, the religious lobby would be doing more justice to their status and religion if they they were to insist on parents not forcing their children to get married to people that they do not want to marry:
قال: الثيب أحق بنفسها من وليها والبكر يستأذنها أبوها في نفسها وإذنها صماتها . رواه مسلم .
"A widow has more right over herself than her guardian, while a father should ask his unmarried daughter's consent before marrying her, and her consent is that she should remain silent."
(Tradition of the Holy Prophet as reported by Imam Muslim)
Instead of giving their tribalism an Islamic form, may Allah give religious-minded elements in Afghanistan the strength and wisdom to reform their society, in accordance with the teachings of Islam.و لله التوفيق