If women’s rights are to be protected, they must become a respected part of the culture and traditions of our society
IT is said that the institution of marriage was introduced so that man and woman could live together in a social, legal and religious bond. However, it is never as simple as it sounds, because married women, particularly young girls, often do not turn out to be cognizant of their rights as wives.
Despite the fact that slavery is illegal in Pakistan, girls and women are regularly traded to settle debts and conflicts. Forced marriages of young girls continue to be reported despite a legal minimum age of 16. In Sukkur, in 2000, a six-year-old girl was married to a 60-year-old man when her family was unable to repay a debt. According to newspaper reports the marriage was consummated as a result of which the little girl sustained injuries.
Last year, the decision of an unauthorized forum in Mianwali to give away eight girls in marriage to settle a murder case between rival families revealed an accelerated process of descent into barbarism. In a statement, the Human Rights Commission of Pakistan said that such decisions violated the laws of the land, the laws of all religions, including Islam, and indeed the norms of civilized behaviour anywhere in the world. “It is still more shocking that the authorities appear to have stood by and permitted the terms contained in the settlement to be carried out without intervention until orders were issued following the publicizing of the terrible sequence of events.”
Several years ago, it was reported by the international press that a woman, Shehnaz Akhtar, did not want to get married to her cousin. But a 25-year-old woman from a poor family living deep in the Punjab farmlands of Pakistan is seldom allowed to choose her husband. Her parents decided she must marry Tajammul, a relative she knew but did not like, and who was willing to pay Rs20,000 for their daughter. Shehnaz was forced to sign the marriage certificate, but she secretly wrote a letter to the Lahore High Court, begging for help. “In the days before Islam girls were buried alive, now they are sold like sheep and goats,” she wrote. “I have been sold to a man I never wanted to live with. What kind of Islam is this? I am a very unlucky woman who has been thrown to the wolves. My marriage was cruel and arbitrary.”
Remarkably, Judge Khawaja Sharif agreed and ordered armed police to take Shehnaz from her family home to a refuge for women. “Marriage cannot be imposed on an adult woman against her free will,” he said. In many parts of Pakistan, marriage is imposed on women against their will. Those brave enough to complain to the courts or run from their homes are hunted down by their families and forced to return, or, all too frequently, murdered to restore a distorted sense of honour. The police usually turn a blind eye to such events.
All over the world, early and forced marriage probably represents the most prevalent form of sexual abuse and exploitation of girls. The fact that the arrangement is socially acceptable does not diminish the reality that a girl is deliberately exposed to sexual abuse and exploitation, usually by her parents and family. According to the UN Convention on the Rights of the Child (CRC), if she is under the age of 18, she is a minor and is not in a position to give informed consent.
Such a marriage involves a breach of a number of international human rights norms. Most central of these is the right to marry. Pakistan is party to the CEDAW, the CRC and the supplementary Convention on Slavery, the Slave Trade and Institutions and Practices similar to Slavery. With respect to minors, forced and early marriage has been found to include the practice of child marriage, as children do not have the capacity to give their consent. CEDAW general recommendation No. 21 , para 3 (1994) states that “the betrothal of girls or undertakings by family members on their behalf ...contravene not only the Convention, but also a woman’s right to freely choose her partner”. It also implicates the right to personal liberty and security, and the right to freedom from arbitrary detention.
Approaching the problem of forced and early marriage from a human rights perspective is essential to incorporate adequate responses and provide effective redress to survivors. First, it makes it possible to argue that state responsibility is incurred for the failure to prevent internationally recognized human rights from being violated by private, non-state, actors. Secondly, it creates a compulsion on state parties to undertake positive acts to protect the human rights of their citizens. In addition, they may be required to ensure effective access to justice for potential and actual victims of forced marriage, for instance, through public education, dissemination of information on rights and remedies to authorities concerned or individuals, or the provision of legal aid or of emergency shelters. Further, international human rights law creates a duty to modify or abolish existing customs or practices, which constitute discrimination against women, and insofar as forced marriages clearly discriminate against women, there is an obligation to end the practice.
Forced marriages clearly violate a range of fundamental rights guaranteed by the Constitution of Pakistan. Although the right to marry is not explicitly protected by legislation in Pakistan, it has been recognized by the courts in numerous cases. In the clearest enunciation of forced marriages as a harmful traditional practice that cannot be justified in the name of religion or culture, a Pakistan court observed: “In matters of marriage a woman was given equal right [by Islam] to choose her life partner ... Unfortunately, in our practical laws, we are influenced by a host of other prejudices bequeathed by history, tradition and feudalism ... it is that culture that needs to be tamed by law and an objective understanding of Islamic values”.
The Child Marriage Restraint Act of 1929, specifies a child as meaning “a person who, if a female, is under 16 years of age, and a minor person who is under 18 years of age”. These prescribed minimums must be strictly enforced. The offence should be non-cognizable and the person responsible for such a marriage liable to severe punishment. The Constitution also guarantees fundamental rights, including the rights to life and personal liberty, safeguards on arrest and detention and a prohibition on slavery. It also secures the rights to equality before the law, equal protection of the law, and the prohibition of discrimination on the grounds of sex or religion.
The Holy Quran gives women a substantial role in choosing their own life partners. It lays down: “Do not prevent them from marrying their husbands when they agree between themselves in a lawful manner.” (2: 232)
The use of habeas corpus petitions in forced marriage cases is a well-established practice in Pakistani courts. In such cases, the court may issue orders upon the respondents, usually the woman’s parents or family members, to produce her before the court so that it may satisfy itself that she is not held in unlawful custody. Such petitions need not be prompted by the woman concerned, but by any person, either a friend or relative, or a person or organization acting in public interest. Moreover, such actions, while not punitive in nature, are aimed at the production of the woman concerned and inquiring the circumstances of the alleged detention, and her release.
It is apparent that until unwavering action is not taken by the authorities to prevent the meeting of such extra judicial forums as in Mianwali and the meting out of sentences by them, there can be no improvement in the prevailing situation. “The action by the provincial government in a case can serve no useful purpose. It is crucial that wider ranging measures to bar the meting out of such verdicts by tribal gatherings be taken and all those involved in arranging such forums or permitting them to take place be penalized under the law.”
Although international instruments should cover children’s rights, when they are married the acknowledgement of children’s rights seems to fall through the international legislation net. Furthermore, they are almost ignored under national legislation, since they are considered as married women despite being children. It has been argued that if and as international instruments are applied in the domestic context, common law and practice will adjust. This is not proving to be the case with early and forced marriages.
It is important to note that any measure to eliminate such marriages will need to address the deep-seated cultural beliefs that underlie this practice. To approach this concern solely as a human rights issue, maybe perceived by the community’s concerned as the imposition of outsiders’ cultural values. If however, the link is made between such marriage and health, both of the child and her future children, the matter may receive greater consideration. Improving national legislation by incorporating international laws does not guarantee implementation on the ground. If women’s human rights are to be protected, they must become a respected part of the culture and traditions of our society.
If women’s rights are to be protected, they must become a respected part of the culture and traditions of our society 
