Judicial
From the Blog PkColumnist.com: Judicial - Law and social change: Humaira's case got a lot of public attention both in the county and abroad. I heard the case and authored the judgment. A brief overview of the socio-cultural milieu in which the judgment was delivered and the causational factors which influenced the verdict may be of some interest in jurisdictions where similar issues are brought to the court for resolution. Broadly speaking, there were three factors which influenced the opinion. First, Humaira was the daughter of a sitting member of the Legislative Assembly and there was strong circumstantial evidence to suggest that her life was in danger. Not only from her own kith and kin but also from state functionaries, who were neither providing her adequate security nor were honestly investigating the false criminal case registered by her father against her on the basis of her fake marriage to a cousin, to erode the validity of her marriage of choice. It was not merely the case of a single woman facing persecution. There were several others in society who either had suffered the fate which she apprehended or were undergoing similar agony. Unless the court had given a declaration that the earlier marriage was not valid in the eyes of the law, she would not only have faced criminal prosecution for adultery but her marriage of choice would have been voided. Creating fake documents of a prior marriage is a practice typically followed to frustrate marriages of choice. The court, while holding that the marriage without the consent of the bride was not legal, declared that: "Marriage with a woman during the subsistence of an earlier marriage with some other man is illegal and void." The court also dilated on the emotional, social and moral dilemma of the girl and her father when it observed: "At a socio-moral plane the case had certain disconcerting overtones. Humaira was to be given in marriage to Moazzam in exchange for the latter's sister, who was married to Humaira's brother. On the one hand, there was the anguish and pain of a father whose daughter had rebelled and refused to marry a person of his choice and had left her hearth and home to join someone with whom she had contracted a marriage. The father called it a sinful act and was not prepared to accept her under any circumstances. On the other hand, there was a girl in distress, who lost the prime of her youth waiting for parental permission to join a husband of her choice. She was in a critical dilemma – i.e., of facing the social consequence of going back to a family where she stood eternally stigmatised or to go back with Mehmood whom she was married to. The former course was full of tension and uncertainty and carried a death threat, whereas in the latter course, although there was still a death threat, it meant the fulfilment of her desire, where she dreamt of security and, if she survived the death threat, she hoped for ultimate release from the high walls of feudal bondage. She chose the latter course and wanted society to accept it. Perhaps she was not asking for too much, but she was refused. On the disclosure of her marriage she was beaten up, taken to the surgical theatre of a governmental-run hospital where her entire body was bandaged and she was detained there for a month. But she persevered. A mock drama of her marriage with Moazzam was staged, where she cried and sobbed but the parents could not persuade her to join him." Second, it was a case in which two major issues concerning women's rights were intertwined – i.e., the issue of a forced and fake marriage and an adult woman's right to marry a person of her own free will. Torn between medieval and modern mindsets, Humaira brought the generational conflict into public focus and wanted the court to resolve it. It reflected a poignant conflict of values between the right to marry and family honour, between gender equality and a patriarch's insistence on having his own way, between the force of custom and the constitutional mandate, betweens a conventional and retrogressive interpretation and a liberal view of a woman's right to marry in Islam. Norms sanctified by custom and tradition were being perceived as religious commands. The court was called upon to comment on such issues, as well as to interpret the law. In such situations, the court had to act as a catalyst and make the law responsive to societal change. "Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. A thousand years of common law are a thousand years of changes in the law in order to adapt it to the needs of a changing reality. The judge is the primary actor in effecting this change." The individual grievance of a damsel in distress was enlarged to a constitutional debate on human rights. The court held that in Islam women have equal rights in the choice of partners and marriage; that those rights are compatible with the fundamental rights guaranteed under the Constitution and that the issue raised primarily related to enforcement of those rights, rather than any theological controversy. To be continued . Read Full Post
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