Judicial response to gender-based violence - Justice Tassaduq Hussain Jillani - Thursday, November 04, 2010

Source : www.thenews.com.pk

The Human Rights Watch in their 1999 report explain how such customary practices sometimes even influenced the court's verdict: "The Court explained that the Quranic verse 34 of Sura Al-Nisa establishes men as the "custodian of women"; hence a man who kills another man for defiling the honour of his wife or daughter is protecting his property and acting in self-defence. Quoting Sura Al-Nisa, the judge concluded, "I am of the view that the appellant, as the custodian of honour of his wife, had the right to kill the deceased while he was engaged in [a] sex act with his wife and he had not earned liability of qisas or tazir or even diyat, and is hereby acquitted .""

The afore-referred opinion reflects a misinterpretation and not a correct understanding of the religious tenet on the issue. Because Islam does not stand for taking the law into one's hand. The practice of 'honour killing' is a form of murder without trial, which is contrary to Islam. Islam upholds the sanctity of human life, as the Holy Quran declares that killing one innocent human being is akin to killing the entire human race. "In reality, honour killings are a direct outcome of forced marriages and have nothing to do with Islam.

Indeed, one of the first acts of the Prophet Muhammad (PBUH) was to condemn and forbid such practices. In Islam, honour is connected with virtue, with righteous behaviour, obligations to one's parents and the elderly, good works and community development. It is all about human dignity and how that dignity should be upheld. For many Muslims, however, Islamic ideals are often subservient to tribal custom. Honour killings and forced marriages are tribal practices. Among certain tribes in Asia, honour is associated with women: izzat, as honour is called in Urdu, is quite literally located on the female body ."

The victim of honour-based crime is stigmatised and therefore isolated. This crime is distinct from other forms of violence because of its collective nature – actions are often condoned and kept secret by the family and community. Young people are particularly vulnerable ."

The right to marry – a vindication: The United Nations describes the practice of forced marriages as a "contemporary form of slavery". Forced Marriages and crimes in the name of honour cannot be separated from one another. Both practices are forms of violence which primarily affect girls and women and are grounded in a patriarchal image of family honour. Forced marriage is a complete negation of the Islamic concept of marriage. Instances are not lacking from Hadith (sayings and deeds of Holy Prophet Muhammad) where consent of a sui juris woman was held to be a sine qua non for a valid marriage in absence of which the marriage was declared void. Once a woman complained to the Holy Prophet that her marriage had been enacted against her consent. The Holy Prophet (PBUH) annulled the marriage.

There is yet another well-quoted incident. A woman by the name of Qaylah bil Makhramah had several daughters. After the death of her husband, the latter's brother-in-law seized all the daughters and declared that he would marry them to men of his choice. The widow, accompanied by her eldest daughter, went to Prophet Muhammad and reported her grievance. The Holy Prophet commanded, "Qaylah and daughters of Qaylah should not be oppressed or forced to marry. Every faithful Muslim should offer them help." As a consequence the widow's brother-in-law Althub had to let her daughters go and they ultimately married of their own free will.

In Pakistan tribal and feudal customs relating to women's rights particularly marital rights are undergoing a change through progressive legislation and liberal interpretation of the law. "The Muslim Family Law Ordinance (MFLO) is the main body of law regulating marriage in Pakistan. The MFLO mainly deals with the procedural aspects of marriage, meaning that the courts enjoy wide discretionary power to decide what the substantive, uncodified Muslim personal law says. It follows that unlike legislation in many other Muslim countries, Pakistani law is silent as to the right of an adult woman to marry a person of her choice and as to whether her consent to marriage is sufficient or even required as a prerequisite for its validity." This void is being filled by the Judge-made law.

One of the onerous functions of the courts established under the constitution, particularly the Supreme Court, has been to bridge the gap between the law and the dynamics of social change. In holding that a marriage in Islam is a consensual arrangement and a civil contract, the courts have made women equal partners in marriage. In the case of Mst Khurshid Bibi v Baboo Muhammad Amin, the Court declared, "As is well-settled, marriage in Muslims is not a sacrament, but in the nature of civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good. In this, Islam, the din-al-fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and a woman to what has been described as "holy deadlock".

In Hafiz Abdul Waheed v Asma Jehangir , the Court candidly held that an adult woman can enter into a marriage of her own choice without the consent of any guardian.

In Mst Humaira Mehmood v the State , the court unequivocally declared that a forced marriage is neither recognised in religion nor in law and that a woman's consent is imperative for a valid marriage.

The writer is a judge of the Supreme Court of Pakistan and co-chair of the Hague Conference mediation committee in family and international law. This article is an edited version of a part of his keynote address in the session on forced marriages and gender-based violence at the International Bar Association Conference in Vancouver, Canada, on November 4, 2010."

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