By Zubeida Mustafa
The role of legislation in the emancipation and empowerment of women has been the subject of much debate in discourses on women’s rights. Can laws reform the status of women when society is not prepared to introduce changes? In other words can transformation in the condition of women in a society be brought about through law making rather than the social process?
This controversy has marked the process of legislation affecting women since the days the British ruled over India. For instance, three major laws relating to women, which were enacted in pre-1947 India, provoked heated debate when they were in the process of being enacted. These were the Child Marriage Restraint Act of 1929, the Muslim Shariat Application Act of 1937 and the Dissolution of Muslim Marriage Act of 1939. The thrust of the argument of those who opposed these enactments was that legislation was not the real remedy for the social problems addressed by these laws. Some even claimed that many of these questions were of such a personal and intimate nature that they could not be legally enforced. The British nevertheless proceeded to have these laws passed and implemented.
In this context, the women of the pre-Independence period had a major role to play. They mobilized themselves to extend support to the Bill while it was being debated and demanded social rights for themselves. A large number of them who turned up to give testimony before the Age of Consent Committee, which had been set up to examine the bill, made it clear that they wanted reforms and “were no longer willing to remain mute victims of laws that clearly and heavily discriminated against them”, to quote Azra Asghar Ali (The emergence of feminism among Indian Muslim women, 1920-1947). One of them spoke with anguish against the “sufferings of the girl-wives” who were “victims of blind custom and usage”.
What has the situation been in respect of legislation and women’s rights since 1947? Soon after Independence, the women who had been mobilized and conscientized by the freedom struggle in which many of them had participated with equal commitment and enthusiasm as the men focused their energies towards getting the laws changed to improve the status of women. For instance, the Muslim Personal Law (Shariat) Application Act, 1937, had been superseded in practice by customary laws, many of which were retrogressive and demeaning. In 1948 the West Punjab Muslim Personal Law (Shariat) Application Act and in 1950 the Muslim Personal Law Shariat Application (Sindh Amendment) were enacted to strengthen the earlier law which sought to give women the status assured to them by religion. Although this may not have been the perfect solution to the problems women faced in the country in issues of marriage, divorce, maintenance, guardianship and custody, family relations and responsibilities, the earlier moves at least set the direction in which the country was to move. The Muslim Family Laws Ordinance, 1961 was, in that respect, a big leap towards reforming the system, which had until then worked against the interest of women.
It provided protection to women by requiring the registration of marriages and laid down a procedure for it. The Ordinance gave a woman a statutory right to maintenance from her husband. It laid down conditions for a man’s second marriage, which included the written permission of the first wife. It also gave a woman the right to divorce and regulated the procedure of the annulment of a marriage. Some changes were also introduced in the law of inheritance, which rationalized it. The establishment of family law courts under another Act of 1964 was designed to expedite the disposal of family cases and save the affected parties from devastation.
After Pakistani society had moved forward on the road to progress, came the strange phenomenon of the great retreat. Some of the laws enacted under the British began to be willfully ignored or declared un-Islamic. The fate of the Child Marriage Restraint Act of 1929, which laid down the minimum age of marriage of a girl at 16, and that of a boy at 18 is testimony to the regression that has taken place. According to Rashida Patel, the founder of the Pakistan Association of Women Lawyers who is the author of three books, Women and Law in Pakistan, Islamization of Laws in Pakistan and Socio-Economic, Political Status and Women & Law in Pakistan, the courts have taken the stand that a marriage contracted after the parties have attained puberty, even though they are less than the prescribed age, is valid under Muslim law as applied in Pakistan.
More devastating than the process of undermining and weakening old laws, was the thrust towards enacting new laws, which seek to destroy the small measure of independence, and empowerment women have achieved.
The most important of these are the Hudood laws, which include the Zina Ordinance, the Law of Evidence and the Qisas and Diyat laws. They blatantly rejected the principle of gender equality laid down in the constitution and provided an opening for penalizing women for acts of which they were not guilty Thus under the law of evidence the woman’s evidence was not considered equal to a man’s in specified cases. The Hudood Ordinance actually provided for the punishment of a woman who had been raped but could not prove the crime and the identity of the rapists.
Another deplorable fall-out of these laws was that they opened the floodgates for their abuse. A large number of women were thrown into prisons in a few years under the Hudood Ordinance. (It is even said that 70 per cent of women prisoners have been charged under the Hudood Ordinance). This trend has created a climate of obscurantism which has made women vulnerable. This has impacted on the women’s situation in two adverse ways. First the old laws which were somewhat favourable to women, even though not perfect in every way, are now under attack. Thus in January 2000 the Federal Shariat Court even gave a judgment declaring two subsections of the Family Laws Ordinance pertaining to divorce un-Islamic. Under the verdict the section providing for a period of 90 days before talaq could become effective was to lapse in March 2000.
The second negative effect has been the reinforcement of unhealthy and anti-women sentiments in society as a whole. The rising incidence of honour killings (nearly 300 a year), the failure of the law enforcement agencies to arrest the murderers and bring them to book and the blatant attacks on women are a direct consequence of the retrogressive trend that has set in. Even if the laws that are there on the statute book might not directly affect every woman in the country, the situation has a gravity of its own. The enactment of such laws and the revision of earlier pro-women laws carry a retrograde message: women can be dispensed with easily without any qualms of conscience. This is something, which cannot be allowed. Fifty four years after Pakistan came into existence and it was believed that the country would progress towards a better life and status for women, we seem to be back to square one.
It is getting on to nearly a century when that courageous writer and activist from Bengal, Rokiya Sakhawat Husain, wrote in her story Sultana’s dream about how women’s true potential was released when they got control of the land by demonstrating their wisdom and sending the men to the Mardana. That may not be the perfect answer to the problems women have faced in this country founded for the Muslims of the subcontinent. But confining women to the zenana is no answer either.
Source: Dawn, 14 Aug 2001