ISLAMABAD, Nov 4: The special committee of the National Commission on the Status of Women (SCSW) on Hudood Ordinance in its deliberations has agreed that the word “adult” should be added before women as in the case of men in section 5 (1) (a) of the Offence of Zina Ordinance.
During its discussions, the issue was raised that in section 5 (1) (a), where reference has been made to an “adult” man, the reference to woman is without any such adjective.
As section 5 (1)(a) reads: “Zina is liable to Hadd if it is committed by a man who is an adult and is not insane with a woman to whom he is not and does not suspect himself to be married”.
Justice Shaiq Usmani, one of the committee members, was of the view that as the term “adult” had been used for a man, it should also had been used for a woman.
Hina Jilani, another member, while endorsing the point raised by Justice Usmani stated that the consent of the woman was of prime importance and unless she was an “adult” how could her consent be admissible under the law?
Dr Farooq Khan and Allama Aqeel Turabi also supported both the views. The majority of the members observed that the absence of the term “adult” with the word “woman” would mean that if a sexual act was committed with a minor woman it would be termed as Zina and not Zina-bil-Jabr, which would not be just and fair.
Whereas, Dr S.M. Zaman was of the view that there was nothing wrong in this section and, therefore, it should remain the way it was. Likewise, Dr Farida Ahmad was of the view that whether this act is done with an adult woman or a minor, it would remain an act of Zina.
She, however, suggested that the word “puberty” may be included in the section so that the act of Zina could only be considered with a woman who has attained puberty.
A general consensus amongst the committee members was, however, developed that addition of the term “adult” before the word “woman” was necessary and that sexual intercourse committed with a minor must go under Zina-bil-Jabr. Subsequently, it was agreed by the majority of the members that section 5 (1)(a) needs to be redrafted.
Similarly, definition of Zina as given in section 4 of the ordinance was reviewed and discussed. The definition reads: A man and a woman are said to commit “Zina” if they wilfully have sexual intercourse without being validly married to each other.
Justice Usmani was of the view that the use of word “wilfully” needed to be replaced by the word “consensually”. His contention was based on the fact that women in society, particularly in the rural and tribal areas, are so much subjugated to the male domination that they may act “willingly” but not “consensually”.
Thus, a wilful act may not necessarily be consensual. Most members of the committee endorsed the view point of Justice Usmani. Syed Afzal Haider pointed out that the law defines the term “voluntary” and not the word “wilful”. The sexual act, therefore, is said to be performed as a voluntary act where the two people are governed by desire.
