Enacting consent

Published November 21, 2020
The writer is author of Faith and Feminism in Pakistan.
The writer is author of Faith and Feminism in Pakistan.

EVEN when Arzoo Raja’s case is decided, due to the contradictions in our colonial-Islamic hybrid legal regime, it is likely that the ambiguities affecting underage/interfaith marriages will remain. Since sexual relations are only permissible in marriage, there is no concept of ‘consent’ in our legal regime — only an age of marriage which is lower than the age of majority and which many do not consider binding. Neither is there a stable legal exit strategy from such marriages.

Anti-colonial sentiment in Pakistan borrows from a patchwork of reformist Islamic traditions, orientalism, and Indian (male) postcolonial studies. It ignores the indigenous patriarchy of Indian male nationalism, denies the agency of the rebellious woman-subject, while glorifying orthodox resistance to colonial values.

The myth that religio-nationalism was a reflex action or born of insecurity is debunked by positive campaigns initiated by Indian male reformers for liberal rights, and collusion of conservative men with colonial legal practices. It downplays how women often benefited from a more level playing field that relied on text, not custom, when defying community and class injustice.

Courts often align with majoritarian religious sentiments.

Indian feminists have argued that no ideal British womanhood was imposed on India since Victorian feminism was challenging patriarchy in Britain. Historians note how English judges concurred with Indian legal and nationalist opinion that patriarchal customs should influence law and exempted local marriage systems and husbands from blame. Disputes in Muslim marriages were considered private matters while restitution of conjugal rights was granted to men. When women found inventive ways to inherit property, the laws of inheritance were amended to dispossess them of such rights.

Efforts to raise the age of consent (and for civil marriage) were initiated by Indian, not colonial, reformers and opposed by religious nationalists. Despite numerous deaths of underage married girls, it was only after 11-year-old Phulmonee died in agony due to marital rape that the colonial rulers reluctantly passed the Age of Consent Act, 1891. (Bengali) Brahmins protested this as intrusive since they considered infant marriage sacrosanct. Inspired by this, women of all religious communities temporarily bonded to campaign for the Child Marriage Restraint Act of 1929.

Even if child marriage cases did reach the courts and girls testified non-consent, British judges feared convictions would offend custom. Moreover, consent was biologically determined, not on the basis of freedom of choice.

These legacies are recycled here. In 1997, Asma Jahangir successfully defended Saima Waheed’s right as a Muslim woman to marry without the approval of a wali, but objected to the grudging judgement of the Lahore High Court which referred to a protective Sharia and invoked the role of judges as “custodians of the morals of Pakistan’s citizens”, while ranking cultural and communal values above Western individualism. While some applauded this as an example of Islamic egalitarianism, the LHC continued to deny nearly 250 couples the freedom to marry by consent, through pendency of appeals, until Asma Jahangir appealed to the Supreme Court which ruled against this conduct in 2003.

In cases of inter-faith or underage marriages, courts often align with majoritarian religious sentiments that privilege puberty over a secular determined age of marriage, reflected in the decision to solicit medical evidence to prove Arzoo’s age instead of relying on Nadra documents. Consent should be determined by the woman’s claim and documented age and not by invasive tactics or at the discretion of courts.

History reveals how Indian men recuperated power on the pretext of anti-colonial politics. Prior to 1938, an Indian Muslim woman’s only recourse to divorce was through renouncing her faith because of the limitations imposed by religious laws and non-Muslim rule. The 1939 Dissolution of Muslim Marriage Act was drafted by Maulana Thanawi to prevent this crisis of women leaving the faith and not for conferring rights. Today, Muslim women converts are threatened with charges of apostasy if their marriages are annulled by courts, or if they later divorce and want to revert to their original faith.

Virtue-signallers support select liberal causes against the death penalty, blasphemy laws and child marriage but evade and rebuke any criticism of the drivers of majoritarianism as, ‘liberal-secular-enlightenment’ excess. The insistence that underage/coerced marriages should be automatically annulled does not advise how to separate religious from secular legal reasoning.

Court marriages can be a relief but unless a civil marriage law is enacted, women’s independent religious freedoms remain under threat. Consent should not be a biological concern exploited by minority and majority communities or dependent on judicial discretion but about women’s informed choices.

The writer is author of Faith and Feminism in Pakistan.

Published in Dawn, November 21st, 2020


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