Wasn’t sure where to put this, but it is a positive op-ed column on a recent Court ruling.
Ishtiaq Ahmed
http://www.dailytimes.com.pk/default.asp?page=story_6-7-2003_pg3_3
One hopes that Justice Jilani’s verdict declaring forced nikah invalid will serve as an authoritative precedent that outlaws all kinds of forced marriages
Dispensing justice is undoubtedly the noblest public activity. An important measure of a society’s democratic achievements is the civil rights enjoyed by its members. Without civil liberties — freedom of religion and conscience, expression, association, choice of spouse and so on — other rights (political, social and economic) cannot be enjoyed meaningfully. The individual must have the freedom to choose his way of life within the bounds of law and public decency.
The so-called high cultures of Middle Eastern and South Asian origins uphold the male’s superior position and status over the female. The rate of female feticide in South Asia is the highest in East Punjab where increasing prosperity, modern clinics that determine the sex of the child and a reactionary culture privileging male children produce an efficient system of filicide directed against girls.
In the absence of statistics for West Punjab, one can’t be sure of percentages but there is a strong possibility that female foetuses are aborted in West Punjab; perhaps also other provinces of Pakistan. There is certainly a high incidence of the abominable practice of ‘honour killings’.
In the event, a landmark verdict given by Justice Tassaduq Hussain Jilani of the Lahore High Court, in which he upholds the right of a woman to choose her spouse, comes as a breath of fresh air. In PLD 1999 Lahore 494, the learned judge declares null and void a second nikah (Islamic marriage contract) forced upon Mst. Humaira Mehmood by her family. She had independently married a man, namely, Mahmood Butt, but her family was unwilling to accept that nikah and imposed a second nikah on her with a man of their choice.
Justice Jilani quashed the second nikah, justifying his decision on both religious and legal grounds. He quoted a hadith of Prophet Muhammad (PBUH), which rules that forced nikah is invalid and a woman can marry a person of her choice. The learned judge notes that Pakistan has ratified the UN Convention on the Elimination of all Forms of Discrimination Against Women, and the Constitution of Pakistan upholds the right of a woman to marry a Muslim man of her choice.
In a separate section ‘Gender Bias, Forced Marriage and the Role of Judiciary as a Catalyst of Social Change’ he reviews the history of gender bias in the Judaeo-Christian religious, cultural and legal traditions, bringing out unequivocally the historical oppression of women. Regarding the situation in Pakistan, he notes that although Islamic law declares marriage a civil matter to be determined freely by the spouses the prevalent customary practices tell a very different story.
Justice Jilani reviews a variety of gender-biased forced marriages. First of all, there are forced marriages in which the girl is coerced into marrying a man she does not like or approve of. She can be subjected to various types of physical and mental tortures. In some cases the punishment can be murder by the family members obsessed with ‘family honour’.
Then, there are marriages contracted between minors. It means that children, both boys and girls, are married to each other when they are minors. A variation of such marriages is a minor girl married to an old man, normally a wealthy man.
Another variation of forced marriage is exchange marriages known as ‘Shighaar’ or ‘Watta Satta’. In such a situation a brother and sister are married off to another pair of siblings. He notes that discord in one family tends to affect the other family.
Then there are so-called ‘Haq Bakhshi’ marriages. These are extremely bizarre. The main consideration in such a marriage is that the family property should remain within the family or clan. Therefore, if a cousin is not available for marriage the girl is ‘married’ to the Holy Quran. Justice Jilani observes that such a marriage is totally un-Islamic and notes that a report of the Pakistan Human Rights Commission gives a figure of some 5000 such marriages in Sindh.
Another type of forced marriage is ‘Vani’. A young girl of marriageable age or even younger is given as a compensation for settlement of a dispute. Most often such disputes refer to murder. The judge observes that since murder has been declared a compoundable offence the family of the deceased can accept compensation for their loss and capital punishment is not carried out. In such cases girls are sometimes presented as compensation. Finally, the judge notes that the incident of forced marriages of young girls living and educated in the UK is highest among Pakistanis.
One hopes that Justice Tassaduq Hussain Jilani’s verdict declaring forced nikah invalid will serve as an authoritative precedent that outlaws all kinds of forced marriages. One day we might even want the state to declare marriage a matter of free and voluntary choice between two human beings irrespective of their religion, sect, race or caste as the relevant UN conventions prescribe.
The author is an associate professor of Political Science at Stockholm University. He is the author of two books. His email address is [email protected]