Punjab Protection of Women Law: An Appraisal

the bill

Punjab Protection of Women Law: An Appraisal

The Punjab Protection of Women Against Violence Act, 2016, has caused quite a stir that has led to heated discussions on TV channels without the discussants knowing what the law really means. Those who have promoted the law are reluctant to go into details or at least do not have satisfactory explanations. Those who are against it are focusing, emotionally, on the husband, who may have to wear a GPS tracker in the shape of an ankle or wrist bracelet after being turned out of the house for a few days. They argue that on his return, he will divorce his wife in retaliation. The new law will, thus, rip the family apart. The lady, who probably supported the law in the legislature, argued that this bracelet was meant for acid throwers and not for the husband. The word “grave” was then added to the word “violence” for purposes of the bracelet and the final version of the law was pushed through.

The legislature, however, did not bother to define the term “grave violence” or “likely grave violence”, in this final push, and was satisfied with the words “which may endanger the life, dignity or reputation of the aggrieved person”. It appears that any kind of thing said by a politician about another politician may require a bracelet, because the strict rules of the Libel Ordinance or defamation law in the Pakistan Penal Code (PPC) do not apply to this form of “grave violence” or “likely grave violence.” On a more serious note, the Council of Islamic Ideology, in an unwanted opinion, declared this law to be un-Islamic. The probable rationale or ratio of this formidable opinion was that the ultimate boss of the CII, Mawlana Fazlur Rahman had ridiculed the law as being against the norms and rules of Islam and Islamic law. As obiter dicta, he reinterpreted the term ‘khadim-e-aala’ as well. One does not know whether or not this is binding like the obiter dicta of the Supreme Court.

The entire discussion about this law on the media is based on emotion from both sides. The impression given by most participants in these discussions was that they had not even bothered to read the text of the law. Is it fair that the people of Pakistan be subjected to such emotional wrangling? The focus was on the husband or on domestic violence when the law goes way beyond the immediate family. It extends to the entire society and almost everyone is covered. This point has not been addressed by a single daanishwar on TV, anchor and guest alike. In the following paragraphs, we will first talk about the Islamic legal rule on the issue and then discuss the other implications of the law that is now implemented and active in the Punjab. The law will affect the other provinces as well, in fact it will affect the whole country, therefore, it must be studied and taken very seriously.

The basic rule governing this issue is laid down in verse 229 of chapter 2 of the Qur’an: after divorce is formalized twice, the parties should live together on equitable terms (maaroof), or separate with kindness (ihsaan). If a former wife who is finally divorced is to be treated with kindness, then a wife who is still a wife is to be treated in a manner that is “praiseworthy”. According to the jurists, this means that a wife has to be treated with respect and gentleness, and as a partner in a relationship whose serenity is essential for the rearing and upbringing of children, which is a declared purpose of the contract of marriage. The jurists then derive a large number of rules from these governing principles. Instead of reasoning from these governing principles, the muftis and other religious scholars base their arguments on shouting and reprimanding females who support the new law. Those who try to reason on the basis of the texts highlight a corollary that is linked to these broad principles. This is the well-known directive of beating the wife lightly. They forget that the term nushuz when probed deeply in this context means that when the wife is having some extramarital relationship and is not willing to desist from it even when requested kindly and gently to do so. It does not mean that the woman is to be beaten for any kind of disobedience, however minor. Further, the description of beating lightly makes it lighter and less painful than a verbal reprimand.

After deriving these rules, a great Hanafi jurist, whose status is such that the importance of modern scholars, jurists, muftis and ulama’ pales into insignificance, lays down rules for this issue. When he speaks, it is as if the sun has come out in all its glory and these modern ‘media stars’, government sponsored or private, lose their luster and are swept away into oblivion. This great champion of Islamic law has the following to say:

“If the wife is alone at the residence of the husband, and there is no one else (other than the husband) who shares the residence with her (in which case she will first complain to such a person, otherwise) she will complain to the Qadi that her husband beats her or causes her (some kind of) torment. The Qadi will then inquire from the neighbors, and if they report the correctness of what she says, when these neighbors are decent people, he (the Qadi) is to discipline the husband. He will order him to behave decently towards her (as required by the Qur’an). He will also order the neighbors to seek out information about her welfare. If the neighbors are not decent people, he will order the husband to move her to a place with decent neighbors. If the good neighbors report against her claim, she is to be kept in the same residence and is not to be moved.”

This shows that the law has the right to interfere in this case. The paternalism, and interference, of the state in such a situation need not cause us alarm and be deemed an invasion of the privacy of the home under Article 14 of the Constitution. The reason for this justification is that the husband has made his privacy public himself, so much so that the neighbors are aware of his mistreatment and beating of his wife. Further, beating can lead to physical harm to the wife, which is an interest that is stronger than the privacy of the home and must, therefore, be preferred. Under the purposes of Islamic law, the protection of life and limb is superior to the protection of the family and the privacy of the home. The rule then is that if life and limb are threatened, the privacy of the home, freedom of movement and thought, and economic interests will be ignored or deemed less significant.

We may now turn to domestic violence and violence as they have been dealt with in the Act. The first definition in the Act we may look at is that of “defendant.” It means a person against whom relief has been sought by the aggrieved person, and who has obviously committed violence. This means that the defendant is any person and not the husband alone. The next definition is that of “domestic violence”. It means violence committed by the defendant, and this defendant is one with whom the aggrieved person is living or has lived in a house when they are related to each other by consanguinity, marriage or adoption. Assuming that the aggrieved person is a woman, the relations included by this definition include the parents of the wife and their children and so on; the parents of the husband his other wives, his children from other wives or from this wife, and all relations based on adoption (does this apply to non-Muslims as adoption is not allowed in Islam). The final definition we may consider is that of “violence”. Violence means any offence committed against the human body of the aggrieved person including abetment of an offence, domestic violence, sexual violence, psychological abuse, economic abuse, stalking or a cybercrime. Against the human body obviously includes the mind of the aggrieved and other needs whether sexual, psychological, economic or other like cyber violence. Domestic violence defined earlier is part of the definition of violence.

This broad definition obviously includes violence committed by the husband. It can, however, include the abetment, or commission, of grave violence by the husband’s mother or his father. In such a case, they too might have to wear a GPS bracelet. The mother may wear it on her wrist as the law implies. The same offence may be committed by any of the other relatives mentioned above. This pertains to domestic violence. The protection order contemplated, however, can include a woman’s boss, the policeman controlling the traffic, the deputy commissioner reprimanding a woman, a taxi driver demanding a higher taxi fare. The dean of a teaching faculty asking a female teacher to come on time may also be included. The entire scope of this form of violence is limited only by the imagination of the reader, by the imagination of the government of Punjab and its legislative assembly.

In conclusion, we may say that Islamic law proposes a decent treatment of the family just as it wants the wife to be treated decently. The home is much more sacred and protected in Islamic law than it is according to western or international concepts. Indeed, the Prophet (pbuh) indicated that a man’s eye can be pierced for peering into a hole in the outer wall, an entire house may be demolished if it is high enough to look into a Muslim house. The idea of the police or other officials entering such a protected house is beyond comprehension. Islamic law permits the Qadi alone to ask the neighbors to report on the complaint of a wife; the Qadi or the neighbors cannot enter the house. Finally, the word disciplining above means ta’dib and not ta’zir. It means, initially guiding and warning the husband with mild yet firm directives about the requirements of Islamic law; if he persists, it is only then that a sterner measure may be adopted.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Imran Ahsan Khan Nyazee

The writer is a Pakistani legal scholar and has been internationally recognized among Muslim scholars who have contributed to an understanding of Islamic law for English readers and has translated the works of many classical Muslim scholars into English.



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3 Comments

  1. Dr. Muhammad Akbar Khan said:

    This is indeed a wonderful piece of reading on the topic. I appreciate the author for such a nice overview. However, I request the author to please give the name of the Hanafi jurist who has been referred in the article in the following words:
    After deriving these rules, a great Hanafi jurist, whose status is such that the importance of modern scholars, jurists, muftis and ulama’ pales into insignificance, lays down rules for this issue. When he speaks, it is as if the sun has come out in all its glory and these modern ‘media stars’, government sponsored or private, lose their luster and are swept away into oblivion. This great champion of Islamic law has the following to say:

  2. abdulrafay said:

    First meaningful read on the topic. Religious bodies once again reacted myopically and failed to stand with aggrieved and vulnerable. Author really deserves praise with the request that it should be published in Dawn and other leading dailies.

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