20th February 2021

By Asra Haque


LAHORE

Voicepk.net’s special webinar on forced and illegal nikkah-namas is part of an ongoing social media campaign ‘Bohat Ho Gaya… Let’s Fight Rape!’ in collaboration with the Canada Fund for Local Initiatives.

Why does rape simply cease to be in the eyes of our law enforcement agencies and of our courts when a girl of a different faith is forced to sign a Muslim marriage certificate, or nikkah-nama? Is the sanctity of marriage far dearer to our laws than the violence experienced by women and children?

These questions and more were the crux of today’s webinar session, hosted by senior analyst and journalist Rashed Rahman. The panel consisted of Punjab Government Spokesperson and Member of the Punjab Assembly from the ruling Pakistan Tehreek-i-Insaf party Musarrat Jamshed Cheema, former Chair of the Punjab Commission on the Status of Women and noted social activist Fauzia Viqar, former Additional Inspector General (AIG) Gender Crimes Maria Mehmood, and Executive Director of the Asma Jahangir Legal Aid Cell Nida Aly.

THE CASES

The discussion was borne out of the lacunae in law and police negligence apparent in the cases of 18-year-old Maria* from Samundri and 13-year-old Farah Shaheen from Faisalabad.

Maria

Maria is a Christian girl who was abducted by four men, one of whom she identified as Talha Haider, in September 2020. She was repeatedly gang-raped for two days and on the third was taken to a madrassa. She was forcibly converted to Islam and was threatened into signing the nikkah-nama with Haider as her ‘husband’. Maria says that she was then presented to a magistrate and under duress gave a statement that she had married Haider willingly.

She continued to be assaulted by all four accused for the next two months, and she would eventually learn that her rapists were planning on selling her off. She managed to get a hold of an unattended phone and alerted her family. She was rescued and is now taking shelter with the aid of Christian activist.

Maria asserts that she never recited the kalima and neither accepted the nikkah. However, she had been turned away both by the police and the Lahore High Court, who refuse to entertain her pleas citing the forced marriage certificate as evidence that she had given her consent, and that she must file for divorce. She is baffled as to how her gang-rape has been conveniently swept aside in all this.

Farah Shaheen

Like Maria, Farah is also a victim of forced conversion and a rape survivor. The minor was abducted in June 2020, but an FIR was not filed until four months after the fact as her father, Asif Masih, stated that he had been tossed out of the police station and the police had refused to register his complaint. He had to eventually approach the courts for an order to lodge the case and begin proceedings. In those four months, Farah was forced to live with her abductor and rapist Khizar Hayat with whom she had ‘wed’ after forcibly being converted.

The courts had initially granted the prime accused custody of Farah, stating that as the nikkah-nama had been signed she was Khizar Hayat’s wife per Shariah. Moreover, as a marriage had been contracted, rape charges did not apply in the case. This was irrespective of section 375 of the Pakistan Penal Code, where intercourse with a minor, even with the minor’s consent, constitutes rape. After voicepk.net alerted the Senate Standing Committee on Human Rights on Farah’s situation, prompting the Committee’s intervention, proceedings against the investigating officer were formally initiated.

It was then proven that the marriage certificate was entirely fake, and Farah (who had been sent to a women’s shelter during proceedings) was finally allowed to return to her father. After nearly eight months, proceedings for rape will now commence against Khizar Hayat.

THE LAWS EXIST, BUT WHY ARE THEY NEVER IMPLEMENTED?

Despite the existence of several comprehensive legislatures on rape and sexual offenses, namely sections 375, 376 and 377 of the PPC and the recently promulgated rape ordinance of 2020, these laws are rarely ever implemented by the police and even the courts.

MNA Musarrat Jamshed Cheema, who was among the many women legislators in the Punjab Assembly who in January 2021 had proposed increasing the minimum age of marriage for both men and women in Punjab to 18. Currently, only Sindh has set its minimum marriageable age to 18. Although Pakistan is signatory to a number of international resolutions, including the UN Charter which stipulates that anyone under the age of 18 is minor, the country repeatedly fails to adhere to these global regulations due to vehement opposition from a vocal and powerful majority comprised of the Muslim clergy and conservative groups.

Jamshed stated that she and other women MPAs had drafted a policy where the marrying persons’ Computerized National Identity Card (CNIC) number be noted on the nikkah-nama to prevent child marriages and statutory rape.

“When I first came in as a legislator, I was excited to work on policy as I was especially concerned with the rights of women and children,” she said. “But the truth is that we are over-legislated. The real crux of the matter is whether these laws are implemented.”

Even in the assemblies women are in the minority. And when they women-friendly policies are brought to the table, they are ridiculed and immediately discarded.

“When the previous government proposed a domestic violence bill which would have abusers wear an electronic tagging band, educated parliamentarians openly mocked the idea.”

The implementation of rape laws is hampered at the first stage when the police refuse to register the case, either because they are unaware as to the existence of these laws or are apathetic to women’s concerns due to a misogynist mindset propagated by Pakistan’s patriarchal society. Women and children of religious minority communities who have been subjected to rape though forced conversion and marriage face not only misogyny but religious contempt from the very agencies that are expected to protect its citizen regardless of sex, age or creed.

“We did a study of sorts during a class which involved 20 or so senior officers, where we informally asked for their opinions on a then-recent case of forced conversion in Sindh,” related Maria Mehmood. She was referring to Arzoo Raja, a 13-year-old Christian girl who ‘accepted Islam’ and ‘married’ her 44-year-old abductor Syed Ali Azhar. Arzoo is currently residing in a women’s shelter until she turns 18, while her rapist is in judicial remand. “We did the exercise because we felt that male and female officers in leadership positions do not attach a certain level of priority to these cases.”

Mehmood found a prevailing mindset that particularly offsets in redressal of the concerns of vulnerable groups and victims of gender-based violence. In the exercise, the participating officers were given a list of tricky priority areas, and many of them were unable to identify that they had put vulnerable groups at the very bottom of the list. Moreover, senior officers from Sindh had vocalised that forced conversions were just propaganda.

It may have been a disheartening development, but Mehmood was at least able to identify the core issues of the police department that hamper justice to rape survivors and their families.

“I will not deny it: in ninety-nine percent of the cases there is police apathy, victim shaming, victim blaming, slut shaming… We have identified the illness here, but we are leaving it untreated,” she said. “But I do not want to say that we do not have any hope, we have at least identified the key issues here. If we kept making the effort but nothing was coming out of it, then it is obvious that we are exerting that effort on the wrong things.”

PATRIARCHY AND THE NEED FOR SUPPORTIVE INSTITUTIONS

This mindset, which Rashed Rahman pointed out was patriarchy, also runs in the courts and justice system of Pakistan and adversely affects the mechanisms of the delivery of rape laws. In order to render efforts to the benefit of women and children in Pakistan, there is a need to trace and dig out the roots of patriarchy itself. Such a course-correction is indeed daunting and difficult, but is it even possible?

“The absence of strong institutions and platforms to raise one’s voice contribute to this failure to implement laws,” stated Fauzia Viqar. She explained how the constitution of gender-based violence cells in the Punjab Police and the appointment of women officers, and the establishment of gender-based violence courts saw the conviction rate in rape cases go up from less than three percent to twelve percent. “Supportive institutions can render such change, and there is a need to strengthen these very institution.”

Political will is also another need of the hour.

“We desperately need political will so that the issue can be made a priority in the assemblies and when making decisions. This is what women’s rights activists and organizations have been calling for over and over again: make our institutions better, and enforce what already exists.”

STATUTORY RAPE AND FORCED CONVERSION MARRIAGES

However, Nida Aly expressed her dissatisfaction with existing laws, especially the Child Marriage Restraint Act which is only concerned with preventing marriage with underage victims and the punishments prescribed to those involved once a marriage with a minor is contracted. The law is utterly silent on what recourse to take when a nikkah-nama is signed.

“This discretion is left to the judges,” she explained. “Per the law, when a nikkah-nama is produced and it involves a minor girl, it is considered statutory rape. Even when consent is involved, a minor does not have the power to make such a decision, it is still rape.”

However, instead of invoking rape laws in forced conversion marriages, judges instead give precedence to the nikkah-nama that, when contracted, cannot be dissolved. Moreover, when the convert is a minor, the courts reason that since the child has accepted the fold of Islam and now has a Muslim ‘husband’, custody should be awarded to the abductor.

“The courts are not gender-responsive, they are not gender-sensitive. Young girls like Farah Shaheen and Maria are presented in court with their much older ‘husbands’ and are pressured into stating that they had married of their free-will.”

Terming this the most glaring lacuna in the law, she urged that protection should be extended to underage girls first, and then focus on raising the minimum age of marriage to 18.

“There needs to be a single provision which stipulates that when marriage with 12-year-old, a 14-year-old is solemnized, it is automatically made null-and-void. It should not have any legal precedent, and considered statutory rape,” she said, further adding that such protective amendments be made to include girls aged 18 and above who have been forced to convert and married to their abductors.

Musarrat Jamshed Cheema expressed her shock upon learning that there existed no legislation which addressed the issue of forced conversion marriages on the federal, nor the provincial level, and stated her commitment to correct this at least in Punjab.

“I would also like to request Prime Minister Imran Khan to look on this and bring laws on forced conversion marriages on the federal level,” she iterated. “It should be enough for woman or girl to say she had been forced against her to void the nikkah-nama. In these cases, the girl is the victim and her statement is all the proof that is needed to dispose of the marriage and conversion certificate.”

Although no law on forced conversions exist, Fauzia Viqar pointed out that all sexes, races, creeds and faiths are equal in the purview of the Constitution of Pakistan, specifically Article 25. In effect, there is nothing that is stopping the State from taking special measures to promote the welfare of women and children, as well as those of belonging to religious minority communities.

“Pakistan is party to a number of international conventions that disallow forced conversion and child marriages. In the PPC, there are specific provisions against forced marriage. We can use all of those. So why are we not using them?” she posited, recalling how Sindh attempted to table a law on forced conversions but could not go through as it involved religion.

She insisted that the existing laws must be invoked to protect women and girls who are victims of forced conversion marriages.

WOMEN MUST WORK TWICE AS HARD

As a female legislator, Jamshed is all too aware of the obstacles to introducing women-friendly laws. Policies that protect and ensure the rights of minority women and children however are an even steeper climb.

“I was empowered by my husband, I come from a blessed family, but even then I am not spared any of the battles that women must fight in this society,” she said. “Women have to work harder, it’s our reality.”

It is the responsibility of the State to extend protection to women and children, to inculcate a society and system where they do not have to work twice as hard as men to succeed. And it is the State that should entertain the issues raised by civil society and deliberate on how to correct them, observed Fauzia Viqar.

“Perhaps one of the greatest services civil society organizations such as the Women’s Action Forum and activists like Asma Jahangir rendered was push back against the Zina Ordinance of the Zia-ul-Haq regime, which conflated rape with consensual sex or adultery. It took years of this constant push back and in 2006, the law was finally overturned.”

A RAY OF HOPE?

Something did come of the women’s rights movement in Pakistan. Our predecessors had cleared the first of many difficult hurdles – the starting line for the women of today is just a little further ahead in the race, but it is still a very long one.

“I would say this: our parties, our bureaucrats, our judiciary and the establish are all on the same page when it comes to extending ideal protection to our minorities,” offered Musarrat Jamshed Cheema.

“While it is heartening to hear that all our institutions are working together to redress religious intolerance and promote inter-faith harmony, I would once again reiterate that there is a need to focus on forced conversions,” Nida Aly implored of Jamshed. “We only have informal statistics, since there exists no government database on this, but there were 162 forced conversion cases in 2020. All of them were young girls. If you are all on the same page, then you must legislate on forced conversions.”

Expressing her gratitude for civil society’s concern for victims of forced conversion marriages, Jamshed assured that the matter will be taken up with the same urgency as other acts of relgious intolerance.

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