Living under the sword --- Violence against Women in South Asia Professor Dr. Shahnaz Huda
Department of Law
University of Dhaka, Bangladesh
Despite universal concern and a variety of interventions, gender based violence continues unabated in all parts of the world. The words violence and women have become intrinsically connected to each other and this is an undeniable truism affecting all countries and communities, from the most developed to the least. The issue of violence against women, which is a cross-cultural issue, continues to be of acute concern in South Asian countries. A vast majority of the women of all three countries of the Indian Sub- continent live endangered lives enhanced by poverty, lack of empowerment and decision making powers, as well as social and cultural factors. This paper focuses on gender based violence with respect to the three countries of the Sub-continent-- Bangladesh, India and Pakistan. Women and girl children in these three countries are frequently and regularly subjected to numerous kinds of violence. Whether outside in the public arena or inside their homes, they are very often vulnerable and insecure. Although in these countries, on one hand, there are many similarities in the types and causes of violence; on the other, there are also many offences against women which are local culture specific and unique to a particular country. Again all three countries have attempted through legislation and other means to address the issue of such violence. The paper also discusses in some details and analyses these interventions. Apart from the law, the social and cultural factors which impact upon the law and the enforcement of law and thus on the criminal justice system will also be discussed to a certain extent.
Violence against women is defined as ‘(a)ny act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”1 Patriarchal, cultural and social practices contribute to the violence committed against women and girls. Violence may be divided into private and public, as can be seen from the above definition. The former includes sexual harassment, trafficking for various abusive purposes, rape, acid violence, murder and so forth. Within private violence falls domestic violence including spousal abuse, wife battering, dowry related violence, torture by in-laws, polygamy, marital rape, unsafe pregnancy, forced abortions, incest and other sexual offences, different types of torture by family members and in some contexts, honor2 crimes. Although referred to as ‘private’ meaning within the home or related to the family, it is increasingly becoming important to ensure that such types of violence are also considered to be offences not outside the cognizance of the State. In the Asian context, the cultural propensity to treat such violence as private and thus not within the sphere of controllable or punishable behavior is by itself a risky contention which precipitates and enhances such abuse. In 1860, the British colonial powers enacted the Penal Code to deal with a variety of penal offences and this law continues to be operational in to all three countries of the Sub-continent, albeit with certain amendments and changes. The Penal Code deals with a gamut of offences against both women and men, as well as offences against the State, religion and so forth. Some sections specifically deal with the definition and punishment of offences related to females, for example Sec.312-314 deals with the causing of miscarriage; Sec.375-376 with the offence of rape; Sections 354 is related to criminal force and assault on woman with intent to outrage her modesty and so forth. Under the British, procedural laws in the form of the Criminal Procedure Code, 1898 and the Evidence Act, 1872 were also legislated. Initially, when the Sub-continent was partitioned into India and Pakistan, these laws continued in operation. However, changes were later made, either by the enactment of new laws or amendments in the existing laws, in both India and Pakistan as well as in the newly independent State of Bangladesh 1Article 1 of the United Nations Declaration on the Elimination of Violence against Women (DEVAW), General Assembly Resolution 48/104 of 20 December 1993.
2 For this word both spellings-- ‘honor’ and ‘honour’ is used in the article. which came into existence in 1971. Below the situation of the three countries, as they relate to gender violence, is discussed at some length. 2.1.1: Nari O Shishu Nirjaton Daman Ain, 2000 (Women and Children Repression Since the 1980’s, several laws have been enacted designated to specifically combat the escalating incidences of gender based violence in Bangladesh. It began with the enactment of the Cruelty to Women (Deterrent Punishment Ordinance) in 1985 which was replaced in 1995 with the Nari O Shishu Nirjaton (Bishesh Bidhan) Ain [Women and Children Repression Prevention (Special Provision) Act]. The latter was again repealed and in 2000 the Nari O Shishu Nirjaton Daman Ain (Women and Children Repression Prevention Act, hereafter referred to also as Act of 2000) was enacted. The law of 2000, with certain amendments in 2003 is the applicable law in Bangladesh at present. The special features of the Act are discussed below. For the trial of offences under the Act, every district town will have a Tribunal which shall be known as the Nari O Shishu Nirjaton Daman Tribunal (hereafter referred to as the Women and Children Repression Prevention Tribunal or Tribunal). All offences committed under the Act of 2000 are to be tried by these Tribunals (Section 26 of the Act As a new innovation, the concept of compensation for the victims of violence was introduced in 2000. Amongst other offences, the Act deals with the offence of rape (the definition of which is according to Section 375 of the Penal Code of 1860), acid violence, dowry related violence and so forth. Section 9 lays down the punishments for rape, gang rape as well the offence of injury or death caused as a result of rape. For death caused by rape or incidental to rape, the accused may be sentenced to death or rigorous life imprisonment and will be required to pay fine up to the limit of one lakh taka (Section 9). Another novelty is the provision for maintenance of children born as a consequence of rape which to be paid by the State and realized from the rapist (Section 13). The 2000 Act delineates the age of the child at 16 and clarifies that sexual relationship with a female below 16, even with her consent, will be considered as statutory rape unless such female is married to him. Thus the concept of marital rape Due to the fact that various abuses have been reported to have been committed against women whilst in police custody, the law in Section 9(5) also deals with the punishment of rape committed within police custody. Related to the above to a certain extent, the concept of safe custody outside of police custody has also been made a requirement with the additional requirement imposed by an amendment in 2003 for the consent of the concerned female or child (Section 31). In 2003, a new Section 9A dealing with forced suicide was added and states that the punishment for inducing or instigating women to commit suicide shall be rigorous imprisonment for a term not exceeding ten years but minimum five years with additional fine. All offences under the 2000 Act are cognizable, The Sub-continental countries, especially Bangladesh, have the dubious distinction of having seen the introduction of acid related crimes and each country has had to take measures to deal with such offences. The causes for acid violence are manifold---family problems; denying permission to the husband to enter into a polygamous marriage ; spurning offers of love or marriage ; refusing to engage in sexual relations; related to property, political or communal disputes ; enmity and other causes. As varied as the types of causes are the ages and sex of the victims who may be as young as 1-3 years of In 1984 a new Section 326A was introduced into the Penal Code of Bangladesh to deal with acid violence. The Act of 2000, in Section 4 introduced severe penalties for acid offences including the death penalty/rigorous life imprisonment for death or attempt to cause death or grievous hurt caused by acid. Even if no harm is caused whatsoever, the throwing of acid itself attracts punishment of imprisonment for a certain term. In 2002, two laws were passed by Parliament specifically dealing with acid related offences --- Acid Niontron Ain, 2002 and Acid Oporad Daman Ain, 2002 (Acid Control Act, 2002 and Acid Offences Prevention Act, 2002). The latter law punishes such offences committed not only against women and children but also males. Provision for payment of compensation for victims or families is also contained in this Act; offences under the law are to be tried by special Acid Offences Tribunals, established for the purpose.
Although acid related offences still occur, their numbers have noticeable reduced after the enactment of the abovementioned strict laws.
Violence within the domestic sphere is an everyday reality for many Bangladeshi women. Such violence may be committed on a variety of grounds and is an offence which is even more perilous due to the secrecy and power play involved as well as the possibility of frequent repetition. The scars and trauma of the victims remain for the rest of their lives. The causes of violence within the home, especially wife battering, range from the most trivial --- serving cold or unappetizing meals, visiting her parents without his permission or some supposed transgression of the wife --- to no cause at all. There may be more serious reasons such as abuse connected to dowry demands or the wife withholding her consent to the husband’s polygamy. In one pathetic case, where the wife was murdered, it was proved before the Court that the accused ‘husband wanted to sell 4 ducks belonging to the wife which she kept at her paternal house and on her refusal, there was a quarrel between them and the husband assaulted her and also throttled her to death.’3 Dowry demands are of course a major cause for violence by the husband and his family. Although prohibited by law and not condoned by the religion of the majority of the population, dowry demands have become part and parcel of most marriages in Bangladesh. The Women and Children Repression Prevention Act of 2000, deals with violence caused by the husband and/or his family only if it is related to dowry demands and not otherwise. The Dowry Prohibition Act of 1980 applicable to Bangladesh, prohibits the taking or giving of dowry but the Act of 2000 deals with dowry related violence including causing of death, attempt to cause death as well as simple and grievous hurt. Thus, if the violence is due to any other reason, and the woman is grievously injured or even killed, the stringent Act of 2000 will not be attracted. The consequence of this is that there is a tendency to institute false cases in order to attract the strict law of 2000 which eventually leads to a great number of cases being thrown out 3 Fazer Pk.(Md) alias Fazer Ali vs. State 5 BCL 542.
of Court. For instance, in the case of Osena Begum alias Babuler Ma and another vs. ‘that the moment the Adalat (Court) finds no proof of existence of motive of dowry for any offence within the mischief of the Ain’ (Act) it must take its hands off the case. In such situation the only course remains open for the Adalat would be to send the case record to the Sessions Judge for trial.
Again in the case of State vs. Md Abu Taher,5 the Court opined that if the prosecution failed to prove that the accused killed the victim on account of dowry, the trial of the accused by the Bishesh Adalat6 would be without jurisdiction and the proper course would be to send the case back on remand for fresh trial under the general law. Under the Nari O Shishu Nirjatan Daman Ain, 2000 the penalty for causing death etc. for dowry is capital punishment and for the attempt to cause death, similar penalty or life imprisonment (Section11). With the exception of Section 303 of the Penal Code7, Section 11 of the Women and Children Repression Prevention Act is the only example of mandatory In 2010, as a consequence of consistent demands by women’s rights groups, the Paribarik Shohingshota (Protirodh O Shurokkha) Ain [Domestic Violence (Deterrent and Protection) Act, 2010; hereafter referred to as the Domestic Violence Act, 2010 or Act of 2010] was passed by the Parliament to deal with ‘any physical, psychological or sexual violence or economic harm committed against any woman or child family member by any person who has a family relationship with them’ (Section 3). The different types of harm envisaged by the Act of 2010 --- physical, psychological, sexual and economic are defined and explained in Chapter III. The law provides for a number of remedies such as protection, residence and compensation orders and imposes duties upon police officers, implementing officers, shelter homes and other service providers for proper implementation of the purposes of the Act. 4 55 DLR 299.
5 56 DLR 556.
6 Special Court. This particular case was under the Act of 1995, the provisions of which are almost the same as those of the Act of 2000. 7 Section 303 of the Penal Code of 1860 deals with ‘punishment for murder by life-convict’.
Apart from the above discussed laws, different Ministries have taken steps to tackle the issues of women’s violence. In 2001 the Government with the assistance of NGO’s and donors set up the first One-Stop Crisis Centers at the Medical College Hospital in the capital Dhaka and later such centers were replicated in other Divisional towns to render medical treatment, counselling, shelter, police and legal support to women and child victims of violence. 2.1.4: Fatwa violence: Fatwa in its classical sense refers to an opinion given by a religious expert, scholar, Mufti or other competent person, knowledgeable in Islam and the Shariah. However, in Bangladesh from the early 1990’s, it began to be used as a form of extra-judicial or parallel system of justice by powerful groups of individuals based on their interpretation of Islam. Women became the main targets of fatwa punishments for what these individuals considered as transgressions. From the 1990’s the rise in the practice of imposing punishments on women for their “irreligious”, “immoral” or “anti-Islamic” behaviour became a subject of acute concern since they constituted grave violations of human rights. It must be mentioned that in Bangladesh the criminal law system is a civil system, uniform for all and By 1995, hundreds of women had been tried in sham courts, run by village elders and their associates (mullas), for allegedly violating the Sharia law and Islamic codes of conduct.8 These extra-judicial punishments range from being ostracized to severe physical violence which may include caning, whipping and stoning and other medieval types of punishment which in many cases have led to the death of the victim. Horrific examples of violence committed against women in the name of fatwa come to light regularly. Women and very young girls have been whipped, stoned and killed for sexual misconduct and even for being raped. In 1993, thirteen year old Sapnahar was sentenced to public whipping after she was raped by a villager and later became pregnant; another thirteen year old, Juleka, was flogged 101 times for having an extra-marital affair.9 In August 2011, Ferdausi, 32, who was ostracized and whipped after being accused of having an extra-marital relationship, jumped with her four children under the wheels of a running train. She and two of her children were killed---the other two critically injured.10 8 Hashmi, Taj I. (2000). Women and Islam in Bangladesh ---Beyond Subjection and Tyranny; Macmillan Press Ltd., London at p. 97.
9 Ali, Riaz (2004). God Willing---The Politics of Islamization in Bangladesh; Rowman &Littlefield Publishers, Inc.; Lanham et al at pp.78-79.
10 The Star Magazine 9 Sept 2011 at p.18. Widespread concern and condemnation of these illegal acts of violence against women gained momentum. In 2000, the High Court Division of the Supreme Court of Bangladesh, in a landmark decision declared fatwas or such religious “verdicts” by themselves illegal and punishable holding that“(a)ny person who issues or executes such an extra-judicial penalty must be punished for committing a criminal offence.”11 11 years after the HCD decision, the Appellate Division of the Supreme Court, on an appeal by two religious scholars, Mufti Mohammad Toyeeb & Abul Kalam Azad held on 12 May 2011 that fatwa on “religious matters" are legal, but no such fatwa can be issued to punish women or anyone else. It was categorically pronounced that "[n]o punishment including physical violence and/or mental torture in any form can be imposed or inflicted on anybody As in other countries of the Sub-continent, and despite its growing influence in the world, in India, an unbelievable number of women live endangered and unsafe lives. Son preference, sanctioned by the Hindu religion, and the ever growing dowry practices which makes the birth of a daughter unwelcome and burdensome, have resulted in gender based abortions or female foeticide. Statistics show that every year more than a million female foetus are aborted. Amartya Sen, an Indian economist who later won the Nobel Prize, coined the term “missing women” to describe the women killed as infants in societies where male children were more desired-----he estimated that 100 million women were missing at the time.12 2.2.1: Dowry related violence: The Indian Penal Code of 1860 continues to apply to the Indian context. From dowry deaths to acid violence, the types of violence Indian women face appear never ending. Every six hours, somewhere in India, a young married woman is burned alive, beaten to death, or driven to commit suicide.13 It is estimated that more than 15,000 11 Editor, the Banglabazar Patrika vs. District Magistrate and Deputy Commissioner, Naogaon (Writ Petition no. 5897 of 2000).
12Jeffery, Paul. Indian women take a stand against violence; accessed on 3/7/2008 13 Op. cit. Oxfam (2004) at p.3.
women suffer from dowry-related violence ever year.14 The Prohibition of Dowry Act of 1961 provides for imprisonment and fine for the taking or giving of dowry. In view of the escalating incidents of gender based violence, several legislative changes were introduced. New sections have been appended or inserted in the Indian Penal Code of 1860 to specifically deal with certain offences against women. For example Section 304-B was inserted to deal with dowry deaths i.e. “the death of a woman caused by burns or bodily injury” on account of dowry. The term dowry death covers any death of a married woman, which satisfies the preceded by cruelty or harassment by the husband or any of his relatives in connection with demand for dowry (as defined under the Dowry Prohibition Act).
The Section provides for a presumption of ‘guilt’ against the above persons in case of the death of a woman in such circumstances and lays down a minimum punishment of seven In 1983 Section 498A was added to the Indian Penal Code. The Section deals with cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The explanation to the Section explains the term cruelty to mean- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether (b) harassment of the woman where harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such 14 Ibid.
15 Veer, Udai (2004). Crimes Against Women; Anmol Publishers, New Delhi; p.258. 16 Ibid.
Cruelty, as envisaged under the Section, may be mental or physical. In one case, the Court held that taking a child away from the mother amounted to cruelty17. The main difference between the two Sections mentioned above i.e. Sections 304B and 498A is that whilst in the case of the former seven years time limit is fixed, in the case of the latter there is no such time limit. Although the inclusion of Section 498A signifies recognition by the State of the reality of the violence faced by Indian women, the relief anticipated is often not forthcoming due to many constraints.18 Apart from changes to the Penal Code, several changes were also incorporated within the Indian Criminal Procedure Code, 197319 and the Indian Evidence Act, 1872. Section 174 of the Cr.P.C. 1973 was amended empowering a Magistrate to hold an inquiry and making post-mortem essential in the case of a woman dying in suspicious circumstances, within seven years of marriage.20 A new Section 113-A was also inserted in the Indian Evidence Act which reverses the presumption of innocence against the accused in 2.2.3: Domestic Violence: To deal with domestic violence, India in 2005 enacted the Protection of Women from Domestic Violence Act. Section 3 of the Act provides a holistic definition of such violence. Under the Act, domestic violence includes physical, sexual, verbal, emotional and economic abuse. The Act gives a wide definition of the term "aggrieved person" to include any person ‘who is, or has been, in a domestic relationship
with the respondent’. Domestic relationship is defined as ‘a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family’ [Section 2(f)]. Thus relationship as envisaged in the Act includes relationships other than a valid marriage such as a woman who is in a live-in relationship or one who is in a bigamous marriage not considered as legal etc. as well as others who are in a relationship with the respondent such as mothers, 17 Wazir Chand vs. The State of Haryana AIR 1989 SC 378.
18 See Nigam, Shalu (2005). Understanding Justice Delivery System from the Perspective of Women Litigants as Victims of Domestic Violence in India (Specifically in the Context of Section 498-A, IPC); Occasional Paper No. 39; Centre for Women’s Development Studies; New Delhi.
19 India replaced the Criminal Procedure Code of 1898 with a new Code in 1973. 20 Gupta, Nidhi (2003). “Women’s Rights and Dowry in India” in Journal of Legal Pluralism and Unofficial Law; No.48/2003; pp. 85-123 at p. 104.
2.2.4: Punishment for Rape: The definition of rape is contained in Section 375 of the Indian Penal Code of 1860 (as in the case of Bangladesh and Pakistan). In India, by the Criminal Law Amendment Act of 1983, several new sections were introduced which deals with the punishment of rape (Section 376). The new sections deal with the punishment of rape when it is committed by those who are in custody, care or protection of the victim. These include rape by Police Officers, Public servants, Superintendents of jails, remand houses, etc; or by member of the management or staff of a hospital [Section 376 (2) (a) (b) (c) (d)]. Section 376 (A) punishes sexual intercourse with wife without her consent by a judicially separated 2.2.5: Sati and Infanticide: India has had to take cognizance of certain offences against women which are unique to the Indian context, such as dowry related deaths by burning (discussed earlier), female foeticide and even sati. Sati is the practice of widow immolation at the pyre of her husband. The British took credit for ending such customs, practiced amongst some classes of Indian Hindus, by enacting the Sati Regulation Act, 1829. The British began their history of law making in India by this Act which put an end, at least on paper, to the practice of sati.21 However, even relatively recently incidents of sati in present India have come to light necessitating the enactment of a new law to address the issue. From the much discussed case of 18 year old Roop Kanwar of Rajasthan in 1987 to the case of 71 year old Lalmati from Chatisgarh in 2008, women still die in the funeral pyre of their husbands22and this is despite the enactment of a new piece of legislation --- Commission of Sati (Prevention) 2.2.6: The Medical Termination of Pregnancy Act, 1971 and the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994: These laws aimed to prevent abortion of female foetuses as a process of sex-selection. The former Act prohibits abortion except on certain qualified grounds while the latter provides for the prohibition of sex 21 For more see Huda, Shahnaz (2004). “Anglo Muhammadan and Anglo Hindu Law: Revisiting Colonial Codification” in Bangladesh Journal of Laws: Vol.8, Nos1&2, June and December 2004; Bangladesh Institute of Law and International Affairs, Dhaka. 22 See Nehaluddin Ahmad (2009). “Sati Tradition - Widow Burning in India: A Socio-legal Examination” in Web Journal of Current Legal Issues. selection and the use of pre-natal diagnostic techniques for the purpose of sex determination leading to female foeticide. Despite the above prohibitive laws, sex selection continues all over India—in the cities as well as in rural areas. Each year consistent statistical child sex ratios (CSR) show that the percentage of female children is declining as compared to the There are myriad types of violence committed with impunity against women in Pakistan. Many of these are connected with tribal and local customs, all of which are based on the prevalent patriarchal, cultural and paternalistic worldview and is in many cases based on the 2.3.1. Zina and Zina bil jabr: The Hudood Ordinances, 1979: Although Pakistan continues to follow the laws relating to penal and criminal offences enacted by the British, a series of new laws have impacted the issues of violence against women and some have deprived women of many of their basic fundamental rights. Several Sections of the Pakistan Penal Code of 1860 had been repealed and offences contained therein had been brought within the purview of new and Islamized laws. The most important of such laws is the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the enactment of which was considered ‘necessary to modify the existing law relating to zina so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah’. The latter law initially covered the crimes of fornication, adultery and rape and had been the cause of much hardship for women and was part of what is known as the Hudood Ordinances. The word hudood is derived from the root word ‘hadd’ and ‘means punishment ordained by the Holy Quran or Sunnah’ [Section 2(b) of the Hudood Ordinance]. After 1979, the crime of rape, previously defined and punishable under the Penal Code of 1860, was made the offence of zina bil jabr. It made not only the latter i.e. rape, which is generally regarded as a forcible and non-consensual act, but also fornication and adultery (referred to as zina) a serious offence. By Section 4, fornication, which is sexual relations between unmarried partners as well as adultery, which is sexual relations between persons, one or both of whom are married to other people, was criminalized and subjected to the harshest of punishments. These acts were categorized as zina and a man and a woman are said to commit 'zina' if they voluntarily have sexual intercourse without being married to each other which was not considered to be an offence earlier. Section 5 prescribed the punishment of zina which included stoning to death. These offences were also subjected to different standards of evidence. The Qanun-e-Shahadat Order of 1984, replaced the colonial Evidence Act of 1872. The evidentiary requirements of proof for the offence of zina-bil-jabr were made so strict that in a host of cases women were deprived of justice. Under Section 8(b) of the Ordinance, the form of proof of zina, (and previously zina-bil-jabr) liable to hadd, shall at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of The Law Reports are full of cases where victims who had brought charges of rape/ zina bil jabr had, due to the inability to fulfill the exacting criterion of proof required, found themselves incarcerated on charges of zina. Additionally, the pregnancy of a woman as the consequence of the alleged rape was for the Court sufficient proof of her being guilty of zina. In Mst. Jehan Mina vs. The State,24 for example, the Federal Shariat Court held that the fact that the woman alleging rape was pregnant was clear proof of her sexual intercourse with someone and that since she had not only kept the fact of her pregnancy quiet for a long time but had also not been able to ‘reasonably substantiate’ that she had been subjected to zina-bi– jabr, she was therefore guilty of zina. The Qisas and Diyat Ordinance of 1990: In 1990, the Qisas and Diyat Ordinance (which was made into an Act in 1997) was passed, introducing laws which made offences relating to the human body compoundable. In the event of murder, a victim’s legal heirs were given the right to agree to a compromise with the offender ---they could either pardon the offender without any monetary compensation or receive compensation through Diyat. Alternatively the law also gave them the right to retribution or Qisas. However in the case of murder such retribution is not an option “when any wali (heir) of the victim is a direct descendant, how 23 Section 8(a) deals with the less severe punishment of tazir. If the strict standard of proof for hadd is not available, the offender may be, on the basis of other proof, be liable to tazir. The tazir punishment for rape under the Act is twenty-five years' imprisonment and thirty lashes.
24 Jehan Mina vs. The State PLD 1983 FSC 183. low–so-ever, of the offender” under Section 306 (c) of the Pakistan Penal Code. Thus, in cases of domestic violence where a wife has been killed by the husband, the latter would not be liable for the Qisas punishment. The Law of Qisas and Diyat also discriminates against women by fixing compensation for physical injuries or murder of women as half of what was admissible for men; additionally the evidence of women were considered less valuable e.g. for proof of murder to be liable to Qisas, evidence of at least two males is essential. In 2001 Ali,25 wrote that a woman’s right to life in Pakistan has become hostage to the compound effects of the Zina and the Qisas and Diyat laws: According to the former, the transfer of the offence of adultery and fornication from the private ---where it rightly belonged--- to the public realm has meant that the state, in the name of zina, has become a party to the hounding of women who ‘overstep’ the boundaries defined by a patriarchal society and attempt to take control of their own lives. Thus men who use the accusation of zina as a cover to control or kill women do so with the sanction of the law. This sanction has been strengthened by the transformation of murder into a private matter when everywhere else in the civilized world it is deemed an offence against the state. Honor killings can now be conducted in plain view of the law, since the law for all intents and purposes is on the side of those members of the society who accuse their women of zina and murder them in the 2.3.2: Concept of honour, crimes against women and their consequence on women in As mentioned before, many crimes committed against women are based on tribal and cultural understandings of women’s subordinate position in society and often based on the misrepresentation of religion. 27 One such crime is what has become known as honor crimes or in Pakistan as Karo kari. The Human Rights Commission of Pakistan reported that in the 25 Ali, Rabia (2001). The Dark Side of ‘Honour’---Women Victims in Pakistan; Women Living Under Muslim Laws (WLUML) and Shirkat Gah, Lahore at pp. 36-37.
26 Ibid.
27 See Huda, Shahnaz (2005). Conducting a feasibility study for developing a set of tools and techniques for engaging Muslim religious leaders to advance women’s rights informed by best practice models from South and South East Asia and other countries; Unpublished mimeo; The Asia Foundation; San Francisco. Copyright TAF.
first nine months of 2011, 675 girls and women were killed on the pretext of honour, 71 of them were under the age of 18.28 ‘Karo-kari’ is a compound word which means: ‘black male’ and ‘black female’, respectively, metaphoric terms for those who commit illicit premarital or extra-marital relations. A female is labelled a Kari because of the perceived dishonour that she had brought to her family through herillicit relationship with a man (other than her husband) who is subsequently labelled a karo. Once labelled a kari, male family members have the self-authorized justification to kill her and the co-accused karo in order to restore family honour.29 The causes of honor killings may not only be related to illicit sexual relations, although they most commonly are. Marrying against the wishes of her family or refusing to marry the man chosen by her family may also lead to a girl’s death. Even being raped may be considered as a threat to the honour of the family which must be avenged. In Pakistan honor is a multi- dimensional term which includes familial respect (izzat) and social prestige (ghariat).30 Nothing is considered to be more of a threat to the family honor than digressions by the females in the family, especially those related to sexual purity. Thus, when any perceived act of dishonour by a female family member threatens the family reputation, she has to pay dearly, usually with her life and such murder is most often considered perfectly justifiable and understandable by society and even in some cases, by the legal system. It has been observed that in many cases the commission of murder on the grounds of protecting the family honour have been considered to be justifiable. Although the Qisas and Diyat Ordinance deleted the Penal Code justification of ‘grave and sudden provocation’, in reality murders on the above grounds of honour are often considered to be justified and the offender awarded with more lenient punishment. As a result many murders, mainly of women, are deliberately classified as crimes of honour to avail of lesser penalties. However, contrary to this trend several Courts have looked beyond the justification of honour as motive for murder. “Legally and morally speaking”,31 held one judge, “nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of ‘ghariat’. Neither the law of the land nor religion permits so-called ‘honour killings’ and it 28 Gazdar, Aisha (2012). State as Complainant, perhaps; http:/ 29 Sujay, Patel and Gadit, Amin Muhammad (2008). “Karo-Kari: A Form of Honour Killing in Pakistan” in Transculture Psychiatry; Vol. 45(4) 2008 at pp.683–694 at p.684.
30 Knudsen, Are (2004). Licence to kill: Honor killings in Pakistan; Chr Michelson Institute at p.4. 31 Akram Khan vs. The State PLD 2001 SCC 96. amounts to intentional murder (qatl-i-amd). Such iniquitous and vile act is in violation of the fundamental rights.” guaranteed in the Constitution. Apart from karo kari there are a number of other offences committed against females in Pakistan, which are based on local customs.32 These include: Vani or Soowa (custom in which a female of a criminal’s family is given to the victims family as compensation for the crime) Horrendous crimes against women are constantly in the news. An Oxfam report narrated the tale of twelve-year-old Reshma, whose marriage was decided in a watta satta (reciprocal) arrangement. A dispute soon broke out between the two families, but her father could not call off the wedding, as the exchange wedding had been formalised. Reshma was forced into the marriage at gunpoint, and on her wedding night her husband shot her dead, claiming that she had admitted to an illicit relationship with a relative of hers. He said that it was her fate to 2.3.3: Protective legislation: From the above types of bizarre crimes, to acid and dowry related violence and domestic violence, there is no end to the types of offences committed against women in Pakistan. Apart from tribal and cultural practices, statutory laws have had an impact on women’s position in society. On one hand as a response to the increasing numbers of incidents of violence committed against women, protective legislation has been enacted for women’s benefit; on the other hand, several laws have impacted adversely upon women’s rights. As discussed earlier on, the laws relating to rape as dealt with under the Zina Ordinance became infamous both within Pakistan and also internationally. Eventually, reforms of such laws and enactment of new laws to protect women became inevitable. In 2004, during the tenure of President Pervaiz Musharraf, by the Criminal Laws (Amendment) Act, honor killings were declared illegal as was the practice of giving women in compensation (vani). Finally in 2006, despite opposition by fundamentalists, the Protection of Women (Criminal Laws Amendment) Act, 2006 was passed by the National Assembly 32 See Op. cit. Huda (2005).
33 Oxfam (2004). Towards Ending Violence Against Women in South Asia; Oxfam Briefing Paper 66; Oxford International at p.8. with a view to ‘provide relief and protection to women against misuse and abuse of law and to prevent their exploitation’. Rape under the Hudood Ordinance was once again made into an offence prosecutable under the Penal Code and no longer a part of the Zina Ordinance.
However, the ‘evidentiary requirement of four witnesses remaining intact is still the biggest hurdle for women to pursue rape cases.34 Violence in the home is common in Pakistan where it was reported in 2004 that 80 per cent of women experience violence within their homes35. In 2009, the Domestic Violence (Prevention and Protection) Act was passed with the purpose of taking institutional measures to protect persons and prevent such violence. Under the Act, domestic violence ‘includes but is not limited to, all intentional acts of gender based or other physical or psychological abuse committed by an accused against women, children or other vulnerable persons, with whom the accused is or has been in a domestic relationship….( Section 4). Given the conservative Pakistani society, the passing of this Act is a major step towards criminalizing violence within the family. It provides for a variety of protective measures such as protection and residence orders, monetary relief as well as punishment for breach of protection orders. In addition to the above law, in 2010 the Protection Against Harassment of Women at To deal with offences of violence committed by the use of any corrosive substance including acid, in 2011 the Criminal Law (Amendment) Act was passed which deals with acid related violence through changes made to the definition of hurt given in Section 332 of the Pakistan Prevention of Anti-Women Practices (Criminal Law Amendment) Act was enacted which provides for punishment for many of the more unusual and bizarre offences committed against women, for example, depriving women of their share of hereditary property; imposing forced marriage on a woman; and arranging marriage of a woman with the Quran. The amending Act of 2011 introduces a new Chapter XXA into the Pakistan Penal Code. According to the amended law, anyone convicted of coercing a woman into marriage for the purpose of dispute settlement, will be sentenced to imprisonment for 3-7 34 SAHR (2010). Religion--A Tool for Discrimination in South Asia; South Asians for Human Rights (SAHR); Colombo at p. 171.
35 Op. cit. Oxfam 2004 at p.3. years with a fine of five hundred thousand rupees.36 Those who compel a woman to marry the Qur’an, which is intended to prevent family property being taken outside of the family through women’s inheritance, may be punishable by imprisonment for 3-7 years as well as fine of five hundred thousand rupees.37 The section also explains what constitutes marriage Oath by a women (sic) on Holy Quran to remain un-married for the rest of her life or, not to claim her share of inheritance shall be deemed to be marriage with the Holy The newly inserted Section 498A also imposes punishment on anyone depriving a woman of her inheritance. Even though, as can be seen from the above discussion, several pieces of beneficial legislation have been enacted for the purpose of safeguarding women’s rights in Pakistan, in reality women continue to suffer.
Gender based violence takes on special characteristics in the South Asian context. Although all three countries of the Sub-Continent have passed laws against gender violence including domestic violence, in reality violence against women continues unabated and is often justified on grounds of religion and culture. In South Asia as ‘in most societies it is women who carry the main responsibility of protecting, perpetuating and transmitting culture and values from generation to generation. Usually any challenge to traditional practices, even those which manifestly violate the basic right to life, is perceived as an attack on culture and values.38 Such challenges are perceived as ubiquitous in women’s everyday lives, in the most natural of their actions as human beings. Despite the laws in place, patriarchal society feels obliged to hold on to its power through the control of women’s behaviour. And this control appears to manifest itself mostly through violence and deprivation of rights. Only through social awareness and acceptance of violence against women as a human rights issue, can laws be implemented to achieve the goals they were enacted for.
36 Section 310-A.
37 Section 498C.
38Gupta, Nidhi (2003). “Women’s Rights and Dowry in India” in Journal of Legal Pluralism and Unofficial Law; No.48/2003; pp. 85-123 at p. 102.


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