PAKISTAN: Saima Wins Case; But Judgement Threatens Women’s Rights

By IPS Correspondents Reprint | | Print |

Beena Sarwar

LAHORE, Mar 17 1997 (IPS) - Women’s rights activists, while hailing a court ruling that upheld the validity of a 22-year-old Pakistani woman’s marriage without the consent of her guardian, are planning to appeal against the judgement in the Supreme Court.

The judgement in the much-publicised ‘Saima Love Marriage Case’, as some newspapers here dubbed it, has among other things called for changes in Pakistani laws to enforce parental authority and discourage courtships.

“Women may have won the battle,” said prominent lawyer Asma Jahangir, “but the war is not yet won.” Jahangir was the counsel of Saima Waheed, whose marriage last year was challenged by her father who said he had not given permission.

Under Pakistani laws an adult Muslim woman does not need the permission of her ‘wali’ or guardian for marriage, but Saima’s father said the conservative Ahle Hadees sect he adheres to makes him responsible for his daughter’s marriage.

The Lahore High Court last week ruled in favour of Saima, but the judgement itself has upset women’s rights activists. The independent Women’s Action Forum plans to appeal in the Supreme Court against what it says is “legislating by judges”.

The three-member bench was also not unanimous in its decision. “We are national judges and as such custodians of the morals of the citizens,” stated Justice Ihasanul Haq Choudhry in his dissenting judgement.

His colleagues who upheld the validity of Saima’s marriage have, however, called for basic amendments to family laws to enforce parental authority and discourage courtships, extra marital relationships and “secret” friendships and marriages.

While Justice Khalilur Rehman has recommended that “such like” relationships and marriages be made a penal offense, Justice Ramday has legislated that courts should hold in abeyance decisions on such matters till laws are changed.

“Justice Ramday has … expressed views and made recommendations which have added to the insecurity felt by Pakistani women, besides putting the legislature in a spot,” observed Jahangir, one of Pakistan’s best known human rights activists.

And Hina Jillani, who is also an advocate and rights campaigner said Justice Ramday has “legislated for an interim period although he has no power to do so.”

Justice Ramday stated that until such time as the legislature moves in the matter, the remedies that he has set down “in the larger public interest”‘ in para 58 of the judgement shall “lie before the family courts.”

Besides declaring that secret friendships and secret marriages are forbidden in Islam, para 58 denounces “husband shopping”, a “scheme”, the judgement says, in which a young person ventures out in search of a spouse.

The judge describes marriages arranged by family elders as the ideal way to choose marriage partners. In Pakistan’s segregated society, they are the most common as young people seldom have the opportunity to meet those of the opposite sex.

Justice Ramday has also stated that a child whose parents fail to arrange his or her marriage, “shall have a right to approach the competent Court” to complain, and the Court “shall grant a certificate to the effect whereafter no blame shall lie on such a person if he or she gets married, of his or her own accord”.

His judgement also condemned inter-faith or other marriages based on “sheer momentary impulses which … are patently not in their interest and which are also a cause for shame and disgrace to the whole family.”

In such cases, he said, “the aggrieved person shall have a right to initiate proceedings in the competent Court seeking annulment of such a marriage”.

The Court shall then have the power to annul a marriage if it is satisfied “that it shall be in the interest of all concerned”. The aggrieved persons, says the ruling, refer to the parents or in their absence, the brothers.

He also recommends that the legislature make extra-marital liaisons a penal offense, although laws already exist which make sex outside marriage a crime against the state, in the form of the controversial Hudood Ordinances, which have consistently been misused, mostly against women.

“He has brought in his own personal and moral judgement into the ruling and one is left with the sickening sense that moral and social norms will take the place of law. If courts judge on

morality, rather than on the basis of law, it will make justice relative to an individual’s point of view,” said Jillani.

“If the judiciary, custodians and upholders of the law, begins to give judgements based on personal moral opinions it will open a Pandora’s Box that we can do without,” she added.

Rights groups in the country are perturbed that the courts have chosen to ignore precedents which have established the right of adult Muslims to marry without the consent of guardians.

In a recent case in the Lahore High Court, Justice S.M. Zubair upheld the validity of the marriage of Najma Bibi with Mohammad Tariq Mahmood, saying that since both were legally adults, and had married of their own liking, they had committed no offense.

“Islam allows an adult Muslim woman to marry according to her own choice,” observed the judge. “A wali, or guardian, is bound by the will and consent of the woman; not the other way around.”

Noting that society is undergoing major socio-economic changes, the court held that it was the duty of jurists and superior courts judges to give progressive interpretations to Islamic law provisions in keeping with the spirit of law and the need of the times.

A Supreme Court ruling of 1972 states that if it is a question of a woman’s fundamental rights in a habeas corpus petition, the only power the court has is to set her at liberty, and the issue of who she goes with is not relevant.

“The opinion of the superior judiciary is bound to influence, if not public opinion, those who enforce the law,” commented Zohra Yusuf, secretary general of the independent Human Rights Commission of Pakistan.