ISLAMABAD: Criticising patriarchal customs and gender-based violence, the Supreme Court (SC) on Tuesday said it was a profound shame on the conscience of any civilised society when a man, having failed to win a woman’s affection, answered her refusal with violence rather than acceptance.
“The sole reason he takes her life is to appease his wounded ego, as he was unable to secure her hand and marry her,” regretted Justice Muhammad Hashim Khan Kakar in a nine-page judgment he authored.
The observation was made by a three-member bench, which also included Justices Salahuddin Panhwar and Ishtiaq Ibrahim.
In its judgment, the bench rejected a criminal review petition by Muhammad Kamran, who sought the commutation of his death sentence to life imprisonment.
Kamran, who has already served around 15 years of his sentence in the death cell, was convicted for murdering a woman after she and her family rejected his marriage proposal.
Dismissing his review plea, the court ruled that a condemned prisoner could not claim, as a matter of right, that him having served 14 or 15 years of his sentence placed him in the same position as a person sentenced to life imprisonment.
“The latter entered prison under a sentence of life imprisonment; the former entered it under a sentence of death. The distinction does not lie in the number of years already spent in prison, but in the sentence which the court actually imposed,” the judgment emphasised.
Woman’s consent considered irrelevant, regrets SC
The court further observed: “Marriage is a mutual, voluntary covenant that necessitates free consent of both parties. But in a variety of patriarchal systems, it is accepted that men have the exclusive right to select, demand and enforce possession over a woman, irrespective of her wishes.”
The judgment stated that a woman “challenges the suitor’s perceived ownership when she exercises her fundamental right to say ‘no’”.
“Under a patriarchal mindset, this rejection is taken by that man as a blow to his ‘honour’ (ghairat), which results in stalking, home invasion, acid violence or femicide,” the judgment added.
The judgment also referred to several customs, such as that of ghag, to illustrate the manifestation of this mindset.
Ghag (proclamation in Pashto) is an archaic customary practice where a man unilaterally claims a woman as his bride without her or her guardians’ consent.
The court observed that historically, ghag was executed by firing gunshots outside the woman’s residence or making a public declaration.
“Ghag acts as an informal seal or taboo intimidating other perspective suitors away, holding a woman’s marital status hostage as if she is a territory, which is now marked by this man,” the judgment said, adding if the woman or her family resisted, the suitor would frequently employ violence to enforce his claim.
As a result, a woman may remain unmarried for years, or even decades, solely due to a declaration that was never followed by a legal or religious ceremony, engagement, or marriage, the court said.
It added that the Khyber Pakhtunkhwa Elimination of Custom of Ghag Act, 2013, had already declared the custom a cognisable, non-bailable and non-compoundable criminal offence.
The judgment then referred to the customs of suara, also known as vani or badal-e-sulh, which it said operated differently from ghag, despite the fact that both portrayed situations where the decision to marry a woman was made by others for a purpose that was not in accordance with her own desires nor benefit.
Suara involves a girl or young woman from a family that has committed an offence, such as homicide, given in marriage to a man from the victim’s family as a form of compensation through decision made by a jirga, and serves as a substitute for a criminal proceeding or financial compensation, the court observed.
The practice was criminalised through Criminal Law (Amendment) Act, 2004 and further solidified by Prevention of Anti-Women Practices Act, 2011, it noted.
Similarly, there was the custom of watta-satta — another example where the setting of marriage was at the cost of the bride’s well being, the judgment said.
Watta-satta, which translates to “give-take”, is a “reciprocal marriage that is prevalent in our country involving a brother and sister from one family marrying a sister and brother from another family”, the judgment said.
“The common thread that unites all of these customs is that in this male-dominated society having patriarchal customs and traditions, a woman’s assent to her own marriage is considered irrelevant,” the court regretted.
It further stated that it is impossible to reconcile this mindset with Islam, which required woman’s free assent as a prerequisite for a valid nikah. Any adult person, either a man or a woman, was equally entitled to decide whether, when and with whom they would marry, the judgment said.
That entitlement, the judgment said, was not a concession that her family, tribe or society, as a whole, had granted to her, the judgment emphasised, adding that a woman possessed this privilege in her own right.
“There is no excuse for such behaviour, regardless of whether it is committed in the name of honour, custom, injured pride, or emotions.”
The judgment further highlighted that Pakistan was party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Its Article 16 obliged states to ensure that a woman had the same right to freely choose a spouse and to enter into a marriage only with her free and full consent, the court noted.
“A domestic custom or such prevalent mindset that nullifies this choice by force cannot be permitted to survive under the guise of local practice,” the judgment said.
In the case at hand, the petitioner, who murdered a woman in cold blood, seemed to have “suffered from the mindset which led to beliefs that a woman is a commodity and it was the right of the suitor to have her, with no possibility of refusal because commodities cannot express”, the court held.
The court further said that the attempt to present a woman’s lawful refusal as “provocation” or as a mitigating circumstance was a very “absurd ground” for the plea at hand because no individual had the right to deprive another of their life just because of refusing a marriage proposal.
Accepting such an argument would constitute judicial endorsement of the notion that a woman’s will was subordinate to a man’s preference, the court declared.
The court held that the petitioner had failed to point out any error to justify the SC’s review jurisdiction under Article 188 of the Constitution. “The submissions advanced are, in substance, a request to rearrange and reweigh matters, which this court, sitting in review, cannot undertake,” it said.