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28 February 2020

Appeal To Chief Justice: To Stop Anti Women Practices

Shamreeza Riaz
Shamreeza Riaz is a Ph.D Scholar (Law), teacher and Research Associate at International Islamic University, Islamabad

Two recent cases of Sawara, one published in Express Tribune on 4th April 2013, where a Jirga decided to hand over 12 years old girl to resolve family dispute and other published in Daily Jang Mardan on 9th April, where a Jirga decided to hand over 5 months girl in Sawara against love Marriage of her Uncle, are clear violation of the injunction of Islam, Constitution of Pakistan, National and in International laws. Chief Justice of Pakistan and Government is requested to take immediate notice of Sawara cases on these legal grounds.

Marriage and family institution occupy a very pivotal position in the legal system of Islam. It can be judged from the fact that Muslin jurist regarded the protection of marriage among the five fundamental objectives of Shariah. The Qur’ān describes marriage as mithaqan ghaliza. These child marriages are against Islam. Constitution of Pakistan provides legal guarantees to safeguard the rights of both genders without any discrimination under articles 4, 8, 14, 25, 26, 27, 34, 35, 37 and 38. In 2004, a new law was enacted with the name of Criminal Law Act. In this act, new provision of law was inserted in Pakistan Penal Code (PPC) to define such practices as crime. A new section 310A was inserted which prohibits Badla-e-Sulh. Under this section, girl/women cannot be given in marriage as compensation of someone’s crime or as financial honor. It directly deals with all form of ‘marriage as compensation’ which carried out in all Pakistan with different names such as Sawara, Wanni, sang chatt and irjaee. Under this Section punishment for giving a female in marriage or otherwise in Badal-i-Sulh.It states that “whoever gives a female in marriage or otherwise in Badal-i-Sulh shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than three years”. Moreover, a new act entitled “Prevention of Anti-Women Practices (Criminal Law Amendment) Act, 2011 outlines strong punishments for social practices like Wanni, Sawara or Badla-e-Sulh, wherein women are traded to settle personal, family or tribal disputes. A new section 498B was inserted in PPC. This section prohibits forced marriage and punish criminals for ten years or a prescribes term accordingly, which must not be less than three years. Moreover, he may be liable for fine of five hundred rupees. For the first time, the act proposes a minimum benchmark for penalizing those involved in “anti-women practices”. But this new act is even failed to penalize these criminals as the act does not propose a mechanism to ensure that such cases are reported and reach a court of law, which is a necessity as these crimes often go unchecked and unreported. It would be landmark legislation if it proves to prevent such practices after its practical application and it is only with proper implementation mechanism. It is also evident that in 2004, Sindh High Court Judge Rahmat Hussain Jafferi passed a historic verdict in Shazia case. He declared that “Jirga system is not a creation of the Constitution or law. Jirga therefore, is not a Parliament and they cannot declare a valid marriage contracted under the provisions of the relevant law as invalid or unlawful”.

Furthermore, these cases are in clear violation of the United Nation Convention on the Rights of the Child (UN CRC) under articles 19 and 37. According to these articles it is the state responsibility to protect children from all kind of abuse and exploitation and Pakistan has signed and ratified this Convention.