August 11, 2020
By Ayesha Mir
RAWALPINDI
On the morning of Friday, August 7, Justice Chaudhry Abdul Aziz’s courtroom at the Rawalpindi Branch of the Lahore High Court, brimmed with curious spectators who had gathered to hear what would happen in the proceedings. It was the case of the “same-sex marriage”, and in the last few days it had received a lot of media coverage.
In the courtroom, there are whispers floating around.
“There is no way they’re going to get away with this…”
“I heard that the woman is in hiding!”
“The judge will make sure she appears before court. And he’s going to sentence her to death…that’s what she deserves”.
It is a rigid, claustrophobic atmosphere inside and everyone sits waiting silently as Justice Aziz sifts through some routine cases. But tension flares high as a huge crowd of journalists suddenly flock around the rostrum.
It is time to hear the much awaited case of ‘Ali Akash’ formerly known as Asma Bibi, a transgender man accused of marrying a 17 year old girl called Neha, who was trying to flee her oppressive family.
A fuming Justice Aziz loudly calls for Akash to be presented before him; the concerned police officials nervously inform him that Akash was nowhere to be found.
The judge reprimands the police officials, Akash’s counsel and the Additional Sessions Judge of Taxila for giving a verdict in favour of the ‘same-sex’ marriage in an earlier hearing (30th June). Then Justice Aziz turns to Neha, a petite, panic-stricken young girl who has remained hidden behind her mask and chaddar.
In her weak brittle voice, she tries to answer the judge’s queries, but is too intimidated to speak up. All her answers are a mere “yes” or “no”.
Gently, her counsel, Advocate Asad Jamal proceeded to explain that Neha had eloped with Akash because her parents wanted to marry her off to an older man for money. But because of constant harassment by the police, her family and the media, the two decided to file for divorce. He further explained that Neha wished to seek higher education and had dreams of becoming a pilot.
In light of the divorce, Advocate Asad Jamal requested that the petition by Neha’s father be disposed of and that she be granted the liberty to seek refuge at Dastak (a women’s shelter home in Lahore) where she had already been lodging since the past week.
But before Advocate Jamal could finish, the judge abruptly silenced him, remarking that the “NGO sector had already corrupted the social structure” of Pakistani society and that he would no longer tolerate this. When Jamal pleaded that Neha feels threatened by her family, Justice Aziz yet again reprimanded him for using “faulty rhetoric” against Pakistani “family traditions”.
Additional Advocate General Mujib ur Rehman Kiani took center stage. While passionately agreeing with the judge’s remarks, he suggested that Neha should be sent to the Darul Aman.
Justice Aziz seemed to take a liking to this idea.
“As a judge, I am not bound by any religion, sect or ethnicity, my purpose is to give a decision in accordance with the constitution of Pakistan and I will make sure that this girl’s future remains secure”. He went on to criticize Akash Ali, accusing him of “single-handedly ruining a young girl’s life”.
As a result of the heated debate, Justice Aziz ordered for Akash’s national identity card to be blocked and his name to be placed on the Exit Control List. He ended the session by announcing that if this was a ploy by Akash to seek asylum in a “European” country, he would not succeed.
He rebuked Akash’s counsel, Anthony, for taking up this case and threatened to have his license cancelled. A representative of Darul Aman was summoned to take responsibility for taking care of Neha and ensuring that she remains under strict supervision.
And when Jamal asked for permission to visit Neha at the Darul Aman, the judge chided him yet again adding, “I think I should get you lodged in there too.”
Background
The matter began when 16 year old Neha decided to elope with 29 year old Akash Ali, previously known as Asma Bibi, who now self identifies as a man after a surgical reassignment of sex. The marriage took place on the basis of his CNIC, which states his gender as male. As a result, Neha’s family filed a habeus corpus petition against the two for engaging in the un-Islamic act of ‘same-sex marriage’.
According to the petition, Akash Ali/Asma Bibi had been residing at Neha’s family home for three years “due to cordial family relations” which is when he grew close to Neha. Even upon moving out, Akash remained in touch with Neha who by that time had gotten admission at the same school where Akash taught as a computer science teacher. Neha’s father claims in his petition that upon finding out about her “illicit” relations with Akash, he withdrew her from the school.
The petition also claims that Akash fraudulently changed his name and gender to fulfill the legal obligations of the nikah nama, which took place on 26th Feb 2020.
Previously, the Additional Session Judge of Taxila had already heard the case on 30th June 2020 and declared Neha sui generis (independent to make her own decision). However, Neha’s father challenged this decision by arguing that the judge had wrongly entertained a “same-sex marriage” because according to him, Neha was a minor and incapable of making a well-informed decision.
When the case was heard again on July 15, 2020 at the Lahore High Court Rawalpindi Bench, Justice Sadaqat Ali Khan ordered: “With the consent of both the learned counsel for the parties as well as parties themselves, M.S.DHQ Hospital, Rawalpindi is directed to constitute a medical board to determine whether respondent No.1 Ali Akaash @ Asma Bibi, is male or female by conducting Chromosomal Sex/Gender Determination Test from any Govt. Laboratory…and submit report on 21.07.2020”.
But it is reported that although Akash agreed to the medical examination under pressure and under the counsel of his lawyer, he later realized that such an examination would be a breach of his dignity (protected under Article 14 of the constitution) and also a violation of the Transgender Persons (Protection of Rights) Act 2017 according to which “A transgender person shall have a right to be recognized as per his or her self-perceived gender identity”.
Ever since then Akash has remained in hiding and hasn’t shown up at any of the court hearings.
After constant harassment and life threats, Akash and Neha decided to end the matter by parting ways through a divorce. According to a petition reply presented in front of the court by Neha’s lawyer, she claims that she married Akash Ali of her own free will because she doesn’t want to live with her family because her father, uncle and aunt do not want her to continue her studies; they want to marry her off to an older, rich man in order to alleviate their poverty. She specifically mentions the role of her aunt, who wanted to get married to Akash Ali but he declined her proposal.
Apparently, it is upon her aunt’s instigation that Neha’s father was forced to file the petition against her.
According to Neha’s counsel, Neha felt terribly harassed in the environment her family had created for her, thus the only course of option available to her was to marry and get rid of them. She says she wants to continue her education and wishes to become a pilot. The fundamental reason to marry Akash was to be freed from the oppression of her family. The petition states “Mr Ali Akash is a transgender man (as recognized by law) and not a female or a woman. He married me to save me from the tyranny of my family. We could never live together in peace. I proposed a divorce to him and have since been divorced so that the harassment he and his family members have been subjected to by the police, my family and the media would come to an end.”
Transgender Rights
Although Pakistan won international applause for passing the Transgender Persons Act in 2017, the concept of transgender identity remains alien in a largely conservative and patriarchal society. Despite the protections and liberties offered in the bill, implementation remains weak; there are still countless stories of transgender men and women being abducted, raped and even set on fire for allegedly refusing sexual favours.
Many Pakistanis are unaware of the fact that “transgender” is a person whose gender identity is different from the one assigned to them at birth. People often tend to place all queer identities under the umbrella term Khawaja Sira, but many of the younger Pakistanis prefer identifying as transgender over Khwaja Sira.
Nevertheless, while the acceptance of Khwaja Sira offers some protection to transgender women, the concept of a transgender man – a female at birth who identifies as a man – is entirely unusual in Pakistan.
In June 2016, a group of 50 clerics in Pakistan, signed a document which gave permission for transgender marriage.
“It is permissible for a transgender person with male indications on his body to marry a transgender person with female indications on her body,” said the document. “Also, normal men and women can also marry such transgender people as have clear indications on their body.” But it did not detail how such indications are defined. Pakistani marriage law remains unclear as it denies homosexual couples permission to marry, with male homosexuals having been charged under anti-sodomy laws in the past. This declaration also declares marriage with any individual possessing both male and female “indications” to be against Islamic principles.
In May 2007, same sex couple from Faisalabad, Shumail Raj and Shazina Tariq were both sent to jail by the Lahore High Court. Shumail Raj, 31, and Shazina Tariq, 26, two cousins who were close to each other, became focus of attention after the bride’s father Tariq Husain informed the court that the ‘husband’ was born a woman and was still so despite having gone through two sex change operations. A panel of doctors appointed by the court also confirmed that Shumail was a woman.
“Ours is a love marriage,” Shumail had said in response to questions by the media outside court. “We want to live together. We will appeal if the court decides against us
The only thing Shazina said was that she had proposed to Shumail and had not committed any crime, except by helping her out.
In the Faisalabad police custody Shazina said that she had approached Shumail with the proposal for the sake of her protection because one of her uncles had wanted to force her into marriage to settle his gambling debts.
However the two were jailed in different districts separating them from each other.
In the same context it comes as no surprise that not only was Akash Ali and Neha’s case negatively sensationalized by many media outlets, but people were quick to pass judgements about Akash’s character and even wish death upon him.
