TAKING COURTSHIP TO COURT
An adult woman, well-educated by Pakistani standards, left her parents declaring that she wished to live with the man she had quietly married. For reasons of security, the woman, 22-year-old Saima Waheed took refuge in a half-way house for women in distress.
Her father filed a habeas corpus petition in the Lahore High Court. Pakistani law and practice required the court only to ascertain whether the woman had attained the age when she could have decided on her future by herself and whether she had acted of her free will. The matter appeared to have been settled when Ms Waheed was found to be sui juris (legally competent to manage one´s own affairs) and when she declared in court that she had voluntarily entered into matrimony.
A criminal case was then instituted against her husband on charges of tampering with a marriage record, but this was a different matter that had no bearing on Ms Waheed´s freedom of choice. Yet the issue developed into a long-drawn out legal battle, the one-member High Court bench was enlarged to three judges, while Ms Waheed´s counsel, the widely respected human rights campaigner Asma Jahangir became the target of harassment and calumny. Instead of being treated as a habeas corpus matter, the case revolved around the question of whether a nikah (marriage contract) undertaken without the consent of parents, even if the girl was sui juris, could be considered valid, and whether such a marriage could be invalidated by the court.
While this case was pending, a single judge of the Lahore High Court gave a judgement on petitions filed by two women who had married of their own accord and pleaded for the annulment of criminal cases filed against them and their husbands by their parents. The court held that the marriages were void and that no Muslim woman could marry without the consent of her wali (guardian). The ruling was stayed by the Supreme Court where the case is currently pending and where Ms Waheed´s case will also be heard.
The cases have attracted attention because of the challenge they put to the belief held by most Muslims, if not all, that Islam allows adult women the freedom to choose their own spouses. In a split two-one judgement in the Saima Waheed case, the Lahore High Court conceded her right to freedom of movement and residence, and also allowed her to go with her husband—but on the grounds that it did not find the sanction to declare her marriage invalid. That was the part that gave relief. But at the same time, the court not only disapproved of women marrying without their parents´ concurrence, it appeared to be laying down a new law, pending fresh legislation, to empower the courts to determine the validity of such marriages. This cannot but cause anxiety.
The settled law, inspired by respect for women´s rights as well as the considerations of a happy family life, allows women the freedom to choose their husbands; it holds that girls cannot be married before they are able to make sound choices, and that if given in marriage at a small age, a girl has the right to get the contract annulled on reaching puberty; lastly, women also have as much right to seek divorce as men have the freedom to pronounce it. Why is it considered necessary to deviate from this law? The reason given is that Pakistani Muslim women should not be allowed to deviate from the injunctions of common belief (not necessarily theirs) and social morality. Both assumptions may not be valid. Regarding the notion of belief, women are being subjected to a code which is not unanimously accepted and whose re-interpretation in today´s context is denied only by obscurantists. Pleas for social morality proceed from the erroneous assumption that social mores do not change.
The crucial issue that needs to be debated is whether Pakistani society will be better off by adapting itself to the call of the age of human rights and freedom—or whether it is necessary and at all possible to legislate the maintenance of social attitudes that the current intellectual climate and scale of economic activity have rendered untenable. This matter does not concern one woman, or even just a few women. Nor does it concern Pakistani women alone. It is an issue that will determine the future of Pakistani society itself.