Forced Marriage: A Violation of Human Rights

Part – 11
By  Munazza Abbasi M.A LL.B  (Hons)
Analysis of the law on forced marriage in other jurisdictions

According to the Working Group on forced marriage, cross-border arrangements for forced marriages and child marriages highlight the fact that the issue of Forced Marriage is not contained within specific national borders but has international implications, especially where the implementation of laws to protect children and their rights varies from one country to another. The UK is not the only country to have implemented various measures in an attempt address the practice of forced marriages. In contrast to the UK, legislation has been introduced to criminalise the practice in Pakistan, Bangladesh, Norway and Belgium.

In Australia, Denmark and Germany, however, existing offences have been revised to criminalise activities associated with forced marriages. Australia brought in new tough laws in 2005 that could see people who traffic young girls overseas for forced marriages jailed for up to 25 years, distinguishing it from the two year sentence in the UK. The UK’s initiative of tightening immigration rules is also adopted in Denmark, and along with the UK, the minimum age of marriage has been raised in France, Gabon and Indonesia in order to successfully address the practice.

Nonetheless, the Home Office and FCO is of the opinion that “looking abroad legislation specific to forced marriage is rare” as until recently, only Norway had a specific offence of forcing someone into marriage, with India, Pakistan and Bangladesh exercising laws against child marriage and abducting someone for the purpose of marrying against their will. Top religious authorities and leaders in Saudi Arabia and Afghanistan have issued public statements condemning the practice. Saudi Arabia’s ex Justice Minister Mohammed Al-Issa expressed in ‘Al-Watan’ (a daily newspaper that requires Government permission to publish articles) that he plans to enact a law that will protect young women from being forced into marriage.

This announcement came amid uproar after a judge in a Saudi court recently upheld the marriage of an eight year old girl to a 47 year old man and blocked a divorce on two appeals on 12 April 2009, stating that she could petition for divorce once she reaches puberty. The appeals were made by the mother of the going against the wishes of her husband, the victim’s father, who arranged the marriage in order to settle his debts with the 47 year old senior. The case caused outrage within the country as well as internationally. Although the Kingdom’s top cleric,

Sheikh Abdul Aziz condemns child marriages and supports the move of banning the practice of forcing someone into marriage without their will, he states that: It is incorrect to say that it’s not permitted to marry off girls who are 15 and younger… a girl aged 10 or 12 can be married. Those who think she’s too young are wrong, and they are being unfair to her. (Remark made during a lecture about parents forcing their underage daughters to marry, according to Saudi’s regional newspaper Al-Hayat.)

The law governing the issue of forced marriage at an international level demands research mainly into the laws of Pakistan and Bangladesh, as they comprise the overwhelming majority of cases of forced marriages. Reported estimates suggest that at least 1000 women are abducted from the UK by their parents, and taken abroad for the purpose of marrying them off without their consent.

The majority of this figure comprises Muslim, Hindu and Sikh women from the Pakistani, Indian and Bangladeshi diasporic communities in Britain (Home Office). The nature, scope and extent of available remedies in Pakistan and Bangladesh after an abduction has taken place International human rights norms have been included in the Constitutions of both Pakistan and Bangladesh. The Constitution of Pakistan 1973 and the Constitution of Bangladesh 1972 uphold an individual’s right to life, personal liberty and freedom from arbitrary arrest and detention.

Discrimination is clearly prohibited on the basis of sex, religion or other status. Protection from gender discrimination is also guaranteed, as both states are signatories to the CEDAW (The Convention on the Elimination of All Forms of Discrimination against Women). Bangladesh’s reservation to this Convention is that Article 2 and Article 16 (l) (c) conflict with Sharia law based on the Holy Quran and the Sunnah of the Holy Prophet (pbuh). On the other hand, Pakistan’s declaration to CEDAW invokes the primacy of the Constitution of Pakistan. Nonetheless, both countries reservations are not directly applicable to the State’s obligations in respect of forced marriages.

Rights of women against forced marriages are, therefore, protected under the laws of each country, along with the right to equality and equal protection under the law. The Constitution of Pakistan further prohibits slavery, with the Constitution of Bangladesh prohibiting torture or cruel, degrading or inhuman treatment or punishment. The right to enforce these fundamental rights are secured through application to the High Court or the Supreme court. However, as Amnesty International explains,

Pakistan’s ratification Convention on 12 March 1996 has resulted in no effective steps being taken by the government to end discrimination against women. As the rationality of forced marriages is often based on the practice being imbedded in the cultural practices mainly found in South Asian countries, Pakistan has expressed that the harmful practice cannot be justified on grounds of religion or culture, and the courts have recently acknowledged that human rights cannot be undermined by cultural prejudices or practices:  …It was Islam which declared equality between men and women. In matters of matter a woman was given equal right to choose her life partner…

Unfortunately, in our practical lives, we are influenced by a host of other prejudices bequeathed by history, tradition and feudalism… [it] is that culture that needs to be tamed by law and an objective understanding of the Islamic values…. Male Chauvinism, feudal bias and compulsions of a conceited ego should not confused with Islamic values. An enlightened approach is called for. (Per Justice Jilani in Humaira Mahmood v Malik Moazzam Ghayas Khokhar 1999).

Therefore, although the right to marry is not explicitly protected through legislation in Pakistan and Bangladesh, the unacceptable nature of the practice has been recognized and condemned by the courts in numerous cases.

Remedies available under the laws of Pakistan and BangladeshConstitutional Law Remedies

Under the Constitutions of both Pakistan and Bangladesh, the High Court of both concerned countries may issue directions that “a person held in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner”. The Court will order the perpetrators or the detainees (often the parents) to bring the victim held in their custody before the court, in order to give them an opportunity to question the victim in open court to ascertain their wishes, especially in regard to their wishes to return back to the UK.

An example of this was seen in the landmark case of Dr Humeyra Abedin discussed in the previous chapter where the High Court in Dhaka demanded the victim’s parents to present her in. Once she was presented, they successfully managed her safe return to the UK. The petition may be brought before the High Courts of each country as a criminal petition under s.149 of the code of Criminal Procedure 1898 (CrPC) or the form of a writ petition filed under the relevant provision of the Constitution of either country.

Where the law has not been victorious in providing an effective remedy, the victim or an interested party may file a writ petition for further protection of their fundamental human rights. Under this petition, the High court of each country respectively, acting suo motu (meaning on its own motion), have the authority to make orders to refrain someone from doing anything they are not permitted to do, or to order them to do something that the law requires them to do. Furthermore, any act or proceeding that has been carried out without lawful authority can be declared as ineffective at law.

Although this may be an effective remedy, victims often find it easier to resort to habeas corpus petitions (a legal action or writ by which relief can be sought by the victim from their unlawful detention), especially where the forced marriage has already taken place. A nineteenth century jurist, A. V. Dicey proclaimed that habeas corpus petitions “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”, thus portraying the significant impact of the petition on providing effective remedies.

In Pakistan, women’s right to marry has been upheld in numerous cases. The landmark case is the Humaira Mahmood case, where a woman had been beaten by her father after she married a partner of her own free will, but without the consent of her parents. She was then detained in a government hospital in Lahore and forced to marry her cousin. At her attempt of eloping, the police (at her father’s request) held her, assaulted her and returned her to her father, who in turn filed a criminal case against her. She sought relief from the court, and a habeas corpus petition was filed by a women’s rights activist for her to be produced before the Court. The Court held in this case, that the marriage was forced and she had been unlawfully detained.

This case is of immense significance as it recognised a woman’s right to exercise her free will in her marriage under Muslim law, and demonstrated that “an adult woman [is] an independent entity rather than the chattel of the male members of her family”. This right was further acknowledged by Judge Khawaja Sharif in the case of Abdul Waheed v Asma Jahangir where he stated that “[m]arriage cannot be imposed on an adult woman against her free will.”

Nevertheless, although women’s rights to be set at liberty and return safely to the UK is upheld by the national courts of Pakistan and Bangladesh, the problem of criminal prosecution of those responsible of abducting the victim or carrying out acts of forced marriage remained to be unsolved under the Constitutional laws of either country.