Forced Marriage: A Violation of Human Rights

By Munazza Abbasi M.A LL. B (Hons)

Part – 12

Gaps in the Remedies for Forced Marriages

Criminal Law Remedies for Forced Marriages

Despite the number of cases and the abhorrent culture of forced marriages that is prevalent in Pakistan and Bangladesh, it is a crime to kidnap or abduct someone for the purposes of forced marriage. This is defined in the Penal Code 1860 in Bangladesh, and in the Zina (Enforcement of Hudood) Ordinance 1979 in respect of Pakistan. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will… shall be punished (with imprisonment and, in Pakistan, whipping and a fine). Kidnapping from lawful guardianship is further an offence under the Penal Code of Bangladesh. This however, is not relevant to forced marriages taking place with the lawful guardian, the parents themselves or anyone acting on their behalf, taking the child with the intention of forcing them into marriage. This is addressed by filing a petition or a habeas corpus petition before the High Court, which results in recovery of the child or prevention of the marriage. Furthermore, the offence of wrongful confinement is also defined in the Penal Code, whereby it is an offence to kidnap or abduct any person with intent to secretly or wrongfully confine them, or to conceal their confinement. An act of such a nature is punishable with imprisonment and a fine. This is relevant for those who are not directly involved in the kidnapping or abduction, but are concealing the victim’s whereabouts. This is comparable to s.63B (2) and (3) of the Forced Marriage Act 2007 under which orders can be directed against a third party who assists the principal offender in the acts comprised in a forced marriage. Moreover, a magistrate can provide a search warrant where there is reason to believe that the confinement constitutes an offence. However, these orders are limited to the Magistrate’s territorial jurisdiction, and therefore, these orders are not so successful in practice.

Civil/FamiIy Law Remedies

Under Muslim laws, which are applicable to Pakistan and Bangladesh, the consent of both parties to a marriage is an essential element. The consent must be expressed in public, in front of witnesses. Otherwise, the marriage will have the effect of being declared void. Although the consent of the parents must also be expressed (often from the vali, the father), some reported cases demonstrate that an adult woman can enter into a marriage without the consent of her vali. Civil remedies in both countries offer a judicial divorce where the marriage is forced under the Muslim Family Law Ordinance 1961 or the Dissolution of Muslim Marriages Act 1939, through application to the family courts that the marriage was not voluntarily consummated.

Gaps and practical obstacles in the remedies

Although on the surface these laws seem to be sufficient remedies that meet both Pakistan and Bangladesh’s international obligations to provide effective redress to the practice of forced marriages, in practice they fail to provide efficacious remedies to victims of the practice. The rationale suggested behind this is that the practice is so embedded in the culture of these countries that it is very common to occur, and the laws are not sufficient in addressing the issues. In fact, the law can be viewed as impeding those social beliefs and traditions. It has further been suggested that the lack of implementation, rather than any existing lacunae in the law, is the major obstacle to effective redress in forced marriage cases. In actual fact, the remedies discussed above, with the exception of habeas corpus applications, are very infrequently invoked in forced marriage cases.  Even with habeas corpus petitions, a further problem is posed. The requirement that the victim be brought before the court and give evidence may not be the best solution on the part of the victim. It can be imagined the immense pressure she may be placed under, with the family members whom she is giving evidence against present in front of her. Under such circumstances, the victim may restrain herself from explaining fully her detention and the conditions she was placed under for fear of further violence being applied by her family members to her once she is released. Furthermore, the expense of carrying out divorce proceedings may be a barrier for a victim’s access to justice, can also be difficult for the victim to afford legal aid and representation. Under the civil remedies of both states obligations, a woman’s capacity to negotiate due to prevailing gender biased discrimination in these countries, may result in her often suffering with tha marriage throughout her life, or in some circumstances, elope from her family home and then further suffer emotional and financial turmoil, not forgetting the stigma of divorce being ceaselessly attached to her.

Plans introduced to criminalise forced marriage in Pakistan

Although the problem of criminal prosecution of those responsible of abducting the victim or carrying out acts of forced marriage was addressed by the Penal Code and Zina (Hudood) Ordinance, it failed to recognise the actual act of forcing someone into marriage as a crime. However, this problem was addressed by a lawmaker and the head of the Pakistan Muslim League Q-Party, Chaudhry Shujaat Hussain, who introduced. The Prevention of Anti-Women Practices Bill on 13 February 2007 in the National Assembly, which seeks to ban various customs that deny women the right to marry or subject them to forced marriages. This Bill was introduced as a result of intense national security being placed on the position of women in Pakistan. consequently, Pervez Musharraf, the former President of Pakistan suggests that the Bill is a key part of plans to empower women in Pakistan as part of his vision of ‘enlightened moderation’ for the predominantly Muslim country of 160 million people where women, particularly in poor, rural areas, face widespread discrimination violence. Under the Bill, “Whoever coerces, or in any manner whatsoever compels a woman to enter into marriage shall be punished with imprisonment [for up to three years, and a fine.]” It also foresees the same punishment to discourage ‘wanni’ or ‘swara’, a custom in which a woman is forced into marriage to settle a dispute between two families, which is a common cause for forced marriage in many rural areas in Pakistan. Although the Bill is intended to end the decades old subjugation of women, with the credit going to “President Musharraf for taking this bold step for the first time in the country’s history,” it is sufficient to suggest that it may be meandered away from the Government’s agenda under the new presidency of Asif Ali Zardari who recently took over Musharraf’s presidency. The law may fail to be implemented.

Conclusively, the difficulties of implementing the law through case judgments leads to limited recourse to legal remedies in the cases involving forced marriages. This lack of implementation is a consequence of the fact that “the failure of key actors within the criminal justice system to view forced marriage as a crime, let alone a violation of fundamental human rights, and their consequential indifference to victims in such cases” (Musharraf), thus ensuring that the system is unable to deliver justice. In addition to this, the lengthy delays in proceedings and the lack of effective protection for victims of forced marriages coupled with the unsuccessful implementation of judgements plague the entire legal system. It is submitted, therefore, that given the nature of the issues consisted in the abduction and kidnapping of forced marriages, effective protection of human rights could only be possible through active co-operation and collaboration between the states concerned [UK, Pakistan and Bangladesh], along with dissemination of guidelines and training for all authorities dealing with such cases, and events that will convey to victims that will convey to victims that effective remedies are indeed available for them, and to families that the practice is unacceptable not merely under the criminal laws of their country but also under their civil laws and those responsible will be liable to prosecution.