The Peshawar High Court recently expressed dissatisfaction over a provision in the Pakistan Penal Code (PPC) for checking the inhuman customary practice of giving minor and young girls in marriages to rival group for settling disputes. This custom, known by names like swara and vani, are in vogue in different parts of the country.

Hearing an application filed by a man from Upper Dir district, Peshawar High Court Chief Justice Dost Mohammad Khan on March 19 directed the federal and Khyber Pakhtunkhwa governments to enact a special law for dealing with this issue. The chief justice observed that there were loopholes in the existing provision of PPC.

The applicant, Hafeezur Rehman, whose father and brother were killed allegedly for declining to give his minor sister under swara for settling a dispute, had requested the court to transfer their cases to Peshawar. The court transferred the two cases – one pertaining to attempted swara and another to the two killings – to Peshawar directing the district and sessions judge to conduct trials himself or entrust it to a senior additional district and sessions judge.

The same day a bench of the Supreme Court, headed by Chief Justice Iftikhar Mohammad Chaudhry, took up for hearing two writ petitions – one filed by Ms Samar Minallah seeking implementation of law to curb swara and another by chairperson of National Commission on the Status of Women Ms Anees Haroon requesting to declare that the jirga system in the country is inhuman and against fundamental rights of citizens.

The bench issued notices to Attorney General Maulvi Anwarul Haq as well as respondents, including secretaries of law and interior and chief secretaries of the four provinces and Gilgit-Baltistan. It decided to club the two petitions and next date of hearing would be fixed later on.

Ms Haroon has claimed that only in Sindh province around 87 jirgas were held last year in which 26 girls and women had been exchanged for settling disputes. She sought court directives for the respondents to frame, amend and implement constitutional provisions and penal laws relating to illegal jirgas.

Ms Minallah had filed a petition over seven years ago and while it remained pending several girls were saved from falling prey to this custom when she informed the court about those cases. The SC chief justice had also taken suo motu notices of several cases on the basis of news reports.

Once considered sacrosanct, voices against this customary practice have been coming up now. A documentary made by Ms Minallah “Swara: a bridge over troubled water” helped in highlighting the issue on national and international level.

For the first time the practice of giving females in badal-i-sulah (as exchange of peace) was declared a crime through Criminal Law (Amendment) Act, 2004, which appeared in official gazette on Jan 11, 2005.

The Section 310A was inserted in the PPC and this custom was made an offence punishable with imprisonment of up to 10 years, but not less than three years.

Last year, the Section 310A was replaced through the Prevention of Anti-Women Practices (Criminal law Amendment) Act 2011, which states: “whoever gives a female in marriage or otherwise compels her to enter into marriage, as badal-e-sulh, vani or swara or any other custom or practice under any name, in consideration of settling a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.”

Legal experts believe that in this provision no definition or meaning of the swara and vani has been given. They say that in the Section 310A a little improvement was made compared to the previous sections and unlike past compelling someone to follow this custom had also been made a crime now.

However, this offence has now been made non-cognizable, which goes in favour of the accused. In the 2004 law this practice was a cognizable offence. But now the police could not arrest a person without a warrant issued by the concerned court.

Furthermore, in the previous section the maximum sentence for committing this offence was up to 10 years, but the same had now been reduced to seven years, which helps the accused to get bail.