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Forced Marriage in Islam: Post #2

Previous Posts of this series: Cousin Marriage and Forced Marriage in Pakistan.

I did some research for this post. Actually, I asked my sister to tell me what Abdur Rahman Al-Jazairi had to say about the topic in his book “Kitab-ul-Fiqh alal-Madhahib al-Arba’a” (Book of fiqh according to the four schools [mentioned in this post] of jurisprudence). So thanks to her as she translated the Urdu text (the original book is in Arabic but my parents have the Urdu translation for the benefit of my Dad and us since my Mom’s mother tongue is Arabic) over Yahoo Messenger.

We’ll start with our friend the modernist Moiz Amjad.

As far as the teachings and recommendations of the Shari`ah regarding a Nikah (marriage) ceremony are concerned, the basic necessary ingredients that should be present in a marriage, according to the recommendations of Islam, are:

  1. Marriage should primarily be a contract that materializes from the expression of the intent of a man and a woman to live the rest of their lives as husband and wife. This contract should be based on the free consent of the man and the woman. In other words, it should not be a temporary contract (i.e. a marital contract for a specified period of time) or one, which is based on coercion and force.
  2. There should be a general declaration of the marriage in the society. Islam does not recognize a secret marital contract. The declaration of the marriage may take any shape or form that is generally adopted in the society. For instance, inviting friends and relatives to the marriage ceremony is an acceptable method of this declaration. Holding two or more persons as witnesses to the marriage contract is also a legislated method for such declaration adopted in various societies and cultures.
  3. The man should give a mutually agreed upon amount as what the Islamic Shari`ah (law) terms as ‘Mehr’ to the woman. The factors that may be considered in the settlement of the amount of ‘Mehr’ include the financial position and the social status of the man and the woman. A woman may refuse marriage merely on the basis of the fact that she considers the amount of ‘Mehr’ to be inadequate. ‘Mehr’ is a basically a token from the man, given to his wife, to express and symbolize the fact that he is willing and capable to fulfill the financial responsibility of the family that would be formed subsequent to the marriage contract. It may be mentioned here that although Islam does not prohibit a woman to take up a financial activity of her choice, yet puts the ultimate responsibility of providing for the family on the husband.

Now that seems simple and reasonable. But we don’t call him modernist for nothing. Let’s now hear from Sheikh Muhammed Salih Al-Munajjid.

There are three pillars or conditions for the marriage contract in Islam:

  1. Both parties should be free of any obstacles that might prevent the marriage from being valid, such as their being mahrams of one another (i.e., close relatives who are permanently forbidden to marry), whether this relationship is through blood ties or through breastfeeding (radaa’) etc., or where the man is a kaafir (non-Muslim) and the woman is a Muslim, and so on.
  2. There should be an offer or proposal (eejaab) from the wali or the person who is acting in his place, who should say to the groom “I marry so-and-so to you” or similar words.
  3. There should be an expression of acceptance (qabool) on the part of the groom or whoever is acting in his place, who should say, “I accept,” or similar words.

The conditions of a proper nikaah (marriage contract) are as follows:

  1. Both the bride and groom should be clearly identified, whether by stating their names or describing them, etc.
  2. Both the bride and groom should be pleased with one another, because the Prophet (peace and blessings of Allaah be upon him) said: “No previously-married woman (widow or divorcee) may be married until she has been asked about her wishes (i.e., she should state clearly her wishes), and no virgin should be married until her permission has been asked (i.e., until she has agreed either in words or by remaining silent).” They asked, “O Messenger of Allaah, how is her permission given (because she will feel very shy)?” He said: “By her silence.” (Reported by al-Bukhaari, 4741)
  3. The one who does the contract on the woman’s behalf should be her wali, as Allaah addressed the walis with regard to marriage (interpretation of the meaning): “And marry those among you who are single…” [al-Noor 24:32] and because the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who marries without the permission of her wali, her marriage is invalid, her marriage is invalid, her marriage is invalid.” (Reported by al-Tirmidhi, 1021 and others; it is a saheeh hadeeth)
  4. The marriage contract must be witnessed, as the Prophet (peace and blessings of Allaah be upon him) said: “There is no marriage contract except with a wali and two witnesses.” (Reported by al-Tabaraani; see also Saheeh al-Jaami’, 7558)

It is also important that the marriage be announced, as the Prophet (peace and blessings of Allaah be upon him) said: “Announce marriages.” (Reported by Imaam Ahmad; classed as hasan in Saheeh al-Jaami’, 1027).

Now who is this wali and why is his consent needed?

The conditions of the wali are as follows:

  1. He should be of sound mind.
  2. He should be an adult.
  3. He should be free (not a slave).
  4. He should be of the same religion as the bride. A kaafir cannot be the wali of a Muslim, male or female, and a Muslim cannot be the wali of a kaafir, male or female, but a kaafir can be the wali of a kaafir woman for marriage purposes, even if they are of different religions. An apostate (one who has left Islam) cannot be a wali for anybody.
  5. He should be of good character (`adaalah —- includes piety, attitude, conduct, etc.), as opposed to being corrupt. This is a condition laid down by some scholars, although some of them regard the outward appearance of good character as being sufficient, and some say that it is enough if he is judged as being able to pay proper attention to the interests of the woman for whom he is acting as wali in the matter of her marriage.
  6. He should be male, as the Prophet (peace and blessings of Allaah be upon him) said: “No woman may conduct the marriage contract of another woman, and no woman can conduct the marriage contract on behalf of her own self, because the zaaniyah (fornicatress, adulteress) is the one who arranges things on her own behalf.” (Reported by Ibn Maajah, 1782; see also Saheeh al-Jaami’, 7298)
  7. He should be wise and mature (rushd), which means being able to understand matters of compatibility and the interests of marriage.

The fuqahaa’ put possible walis in a certain order, and a wali who is more closely-related should not be ignored unless there is no such person or the relatives do not meet the specified conditions. A woman’s wali is her father, then whoever her father may have appointed before his death, then her paternal grandfather or great-grandfather, then her son, then her grandfathers sons or grandsons, then her brother through both parents (full brother), then her brother through her father, then the sons of her brother through both parents, then the sons of her brother through her father, then her uncle (her father’s brother through both parents), then her father’s brother through the father, then the sons of her father’s brother though both parents, then the sons of her father’s brother through the father, then whoever is more closely related, and so on —- as is the case with inheritance. The Muslim leader (or his deputy, such as a qaadi or judge) is the wali for any woman who does not have a wali of her own.

So it seems that the bride and the groom have to consent to their marriage. However, the hadith cited by the Sheikh equating silence with consent is misused a LOT in practice. There might be cases where the bride clearly refuses to marry but in most of the the forced marriages she only has to stay quiet. That is a low hurdle and should be unacceptable. There are maulvis/Nikah registrars in Pakistan that insist on a clear verbal reply from the bride. Obviously those are not called for the Nikah ceremony by people bent on forcibly marrying someone.

We will return to the wali issue later. Let’s first hear Moiz Amjad’s clear reply to a woman who had been forcibly married by her parents.

No one, not even the parents, have a right to force marriage upon any boy or a girl. Without the free consent of the woman (as well as the man), a marriage contract would be deemed void. Forcing marriage upon a woman is clearly against the teachings of the Prophet (pbuh).

According to a narrative reported by Abu Dawood, once when a case of forced marriage was reported to the Prophet (pbuh), he allowed the woman (who was forced into marriage) the option to revoke the marriage, if she desired to do so (Abu Dawood, Kitaab al-Nikah, Narrative No. 1797).

The free choice of the woman is a necessary condition for a valid Nikah. In view of this fact, if it is found out that a woman has been coerced into a Nikah, then such a Nikah can be revoked or even invalidated by the competent legal authority.

Nevertheless, considering the fact that you have signed the Nikah contract, you will now have to seek legal help to invalidate the Nikah, if your parents do not accept your basic moral and legal right.

Because you have been forced into marriage, therefore, your apparent husband does not have any moral or legal rights over you, till the time that you give him such rights, with the willingness of your heart. Under the stated circumstances, I do not consider it sinful on your part to refuse talking to him or to seek legal help in revoking the said marriage contract.

Back to the matter of the wali. There is this reply to a question about court marriage on Moiz Amjad’s site:

The Islamic Shari`ah does not prohibit any two adult persons from entering the bonds of marriage. However there are certain conditions, which need to be met. First, the consent of both the male and the female partner is necessary. Second, the Nikah should be declared in the society and must not be kept hidden. The Qur’an guides us that the contract of Nikah should be undertaken in the manner that is recognized, supported and followed by the honorable and noble people of a society. Social norms usually demand a consent and backing from the parents. However, if a parent does not give the right of entering the bond of marriage to their children and shows excessive unfounded resistance then the matter may be dealt as the situation demands. One may, under such circumstances, turn to the court and make the marriage contract there. Nevertheless, the best course would be to do every effort to get the parents’ consent so that the step of going to the court may be avoided.

If wali’s consent is not required, then what is the deal? Here’s how Shehzad Saleem explains it on Moiz’s site (Moiz does not necessarily endorse this opinion).

Islam on the other hand, as mentioned earlier, has always insisted that the institution of family is the basic building block of the society and it is in the interest of humanity to adhere to a family oriented society. Consequently, it has given a number of directives for the protection and preservation of the family.

[…]Among these directives also comes the Prophet’s hadith the interpretation of which has become the centre of controversy these days:

A Nikah does not solemnise unless it takes place through the guardian and if someone does not have a guardian the ruler of the Muslims is his guardian. (Tirmizii Kitaab-un- nikah)

This hadith is actually a corollary of the social directives of Islam pertaining to the institution of family and is based on great wisdom. Since the preservation and protection of the family set up is of paramount importance to Islam, it is but natural that each marriage take place through the consent of the parents who are the foremost guardians. It is obvious that a marriage solemnised through the consent of the parents shields and shelters the newly formed family. For reasons stated earlier, it is essential that the newly formed family be part of another larger family.

However, as is evident from the hadith also, there can always be an exception to this general principle. If a man and a woman feel that the rejection on the part of the parents has no sound reasoning behind it or that the parents, owing to some reason, are not appreciating the grounds of this union, they have all the right to take this matter to the courts of justice. It is now up to the court to analyse and evaluate the whole affair. If it is satisfied with the stance of the man and woman, it can give a green signal to them. In this case, as is apparent from the hadith, the state shall be considered the guardian of the couple. On the other hand, if the court is of the view that the stand of the parents is valid, it can stop the concerned parties from engaging in wedlock. Similarly, if a case is brought before the judicial forums in which the marriage has taken place without the consent of the parents, it is up to the court to decide the fate of such a liaison. If it is not satisfied with the grounds of this union, it can order for their separation and if it is satisfied, it can endorse the decision taken by the couple.

This is the law as far as this issue is concerned. However, it is evident that laws mostly cater for extreme situations as their nature is preventive not reformatory. In other words, they prevent the spreading of anarchy and disorder in a society but have no role in positively building a society on a certain ideology. It is the utmost goal of Islam to build a society in which traditions are so deeply rooted that various affairs are settled and resolved within the social structure without taking them to the courts. Family affairs, if taken to the courts, become the talk of the town and severely damage the standing and reputation of the parties involved. Consequently, it is in the interest of the parties involved to settle their differences mutually by giving due importance to the ultimate goal of protecting the institution of family.

The society which, we believe, Islam wants to build is one in which the relationship between parents and children is based on such norms and values as protect the family set up. In such a society, if an individual has to select a life partner for himself or herself, he or she must make the utmost effort to convince the parents. In differences of opinion it seems proper that the individual accommodate the opinion of the parents as far as possible, and only in extraordinary circumstances should he persist in his decision. An individual no doubt has total freedom in decision making in this regard but he should give top priority to the protection of the institution of family. This freedom is so absolute that Islam disapproves of parents who forcibly marry their sons and daughters and makes it clear that it is the concerned man and woman who have the final say in this regard:

A girl once came to ‘A’isha and said ‘My father has married me to his nephew to alleviate his poverty through me. I dislike him.’ ‘A’isha replied ‘Wait here until the Prophet comes.’ The Prophet arrived shortly and she informed him of the matter. At this, the Prophet sent for her father. When he arrived the Prophet gave the girl the choice to do whatever she liked. She said: ‘I accept my father’s decision. I only wanted to know whether a girl has authority in this regard or not’. (Nisaii, Kitab-un-nikaah)

If in a society envisaged by Islam it is important that an individual give due regard to the opinion of the parents in marriage, it is even more important that the parents be extra cautious in this matter since they hold moral authority over their children. Misuse and abuse of such authority can produce grave consequences. Parents must give deep consideration to the inclinations and tendencies of their children in deciding their future in an affair as delicate as marriage. They should understand that once their children become mentally mature they must not impose their ideas on them.

The Sheikh is more adamant about obeying parents, though he thinks there is some leeway.

Consent is essential in the case of the husband, and also in the case of the wife. The parents have no right to force their son or their daughter to marry someone they do not want.

But if the person whom the parents have chosen is righteous, then the child, whether male or female, should obey the parents in that, because the Prophet (peace and blessings of Allah be upon him) said: “If there comes to you one with whose religious commitment and character you are pleased, then marry (your daughter) to him.” (Narrated by al-Tirmidhi, 1084; Ibn Maajah, 1967. Classed as hasan by al-Albaani in Saheeh al-Tirmidhi, 865).

But if obeying them will lead to divorce later on, then the child does not have to obey them in that, because consent is the foundation of the marital relationship, and this consent must be in accordance with sharee’ah, which is approval of the one who is religiously committed and of good character.

A child is not considered to be disobedient or sinful if he does not obey his parents in this regard.

Shaykh al-Islam Ibn Taymiyah said: The parents do not have the right to force their child to marry someone whom he does not want, and if he refuses he is not being disobedient towards them, as is the case when he does not eat what he does not want.

Now let us see the Sheikh present some evidence for his case:

It is not permissible for a man to marry a woman without the permission of her guardian, whether she is a virgin or previously-married. This is the view of the majority of scholars, including al-Shaafa’i, Maalik and Ahmad. This is based on evidence which includes the following:

The verses in which Allaah says (interpretation of the meaning): “do not prevent them from marrying their (former) husbands” [al-Baqarah 2:232]

“And do not marry Al-Mushrikaat (idolatresses) till they believe (worship Allaah Alone)” [al-Baqarah 2:221]

“and marry those among you who are single” [al-Noor 24:32]

The point here is that these verses clearly stipulate that there be a guardian in marriage, because Allaah is addressing the guardian with regard to the marriage of the woman under his care. If the matter were up to her and not him, there would be no need to address him.

It is indicative of Imam al-Bukhaari’s deep understanding of issues of sharee’ah that he quoted these verses in a chapter which he entitled “Baab man qaala la nikaaha illa bi wali (Chapter on those who say that there is no marriage without a guardian).”

It was narrated that Abu Moosa said: The Prophet (peace and blessings of Allah be upon him) said: “There is no marriage without a guardian.” (Narrated by al-Tirmidhi, 1101; Abu Dawood, 2085; Ibn Maajah, 1881. Classed as saheeh by Shaykh al-Albaani (may Allaah have mercy on him) in Saheeh al-Tirmidhi, 1/318)

It was narrated that “Aa’ishah (may Allaah be pleased with her) said: The Messenger of Allah (peace and blessings of Allah be upon him) said: Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if the marriage is consummated then the mahr is hers because she has allowed him to be intimate with her. If they dispute, then the ruler is the guardian of the one who has no guardian.” (Narrated by al-Tirmidhi, 1102; Abu Dawood, 2083; Ibn Maajah, 1879. Classed as saheeh by al-Albaani in Irwa’ al-Ghaleel, 1840)

Secondly: If her guardian prevents her from marrying the person she wants for no valid reason according to sharee’ah, then the role of guardian passes to the next closest relative, so it passes from the father to the grandfather, for example.

Thirdly: if all of her guardians prevent her from getting married for no valid reason according to sharee’ah, then the ruler is her guardian, because of the hadeeth quoted above (“…If they dispute, then the ruler is the guardian of the one who has no guardian”)

Fourthly: if there is no guardian and no ruler, then her marriage is to be arranged by a man who has authority in the place where she is, such as the head of a village, or the governor of a province, and so on. If there is no such person, then she should appoint a trustworthy Muslim man to arrange her marriage.

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: If there is no relative who can act as her guardian, then the position of guardian passes to the one who is most fit among those who have any kind of authority in matters other than marriage, such as the head of a village, the leader of a caravan, and so on.

Ibn Qudaamah said: If a woman does not have a guardian and there is no ruler, then there was narrated from Ahmad that which indicates that her marriage should be arranged by a man of sound character, with her permission.

Shaykh `Umar al-Ashqar said: If there is no ruler of the Muslims, or if the woman is in a place where the Muslims have no ruler, and she has no guardian at all, like the Muslims in America and elsewhere, if there are Islamic institutions in that country that take care of the Muslims’ affairs, then they should arrange her marriage. The same applies if the Muslims have a leader who is in charge or someone who is responsible for their affairs.

So can a woman decide who her wali should be? According to the Sheikh, it depends on whether her closer relative is acting wrongfully or not.

If she wants to marry someone of equal standing, and the wali wants to marry her to a different person of equal standing, and he refuses to marry her to the person whom she wants to marry, then he is preventing her from marrying [wrongfully — ed]. But if she wants to marry someone of different standing, then he has the right to stop her, and in this case he is not preventing her from marrying in the wrongful sense.

[…]If the wali refused to let a woman marry a man whose religious commitment and character are good, then guardianship passes to the next closest male relative on the father’s side, then the next closest and so on. If they refuse to arrange her marriage, as usually happens, then guardianship passes to the qaadi, and the qaadi should arrange the woman’s marriage. If the matter is referred to him and he knows that her guardians have refused to arrange her marriage, then he should do that, because he is the wali in cases where there is no specific wali.

The fuqaha’ (may Allaah have mercy on them) stated that if the wali repeatedly refuses marriage proposals from suitable men, then he is a faasiq (evildoer) and is no longer regarded as being of good character or as being a wali, rather according to the best known view of the madhhab of Imam Ahmad, he also forfeits the right to lead prayers and it is not valid to offer any congregational prayer behind him. This is a serious matter.

Some people, as we have referred to above, refuse offers of marriage from compatible men, but the girl may feel too shy to come to the qaadi to ask for her marriage to be arranged. This is something that does happen. But she should weigh the pros and cons, and decide which has the more damaging consequences, staying without a husband and letting her wali control her life according to his mood or his whims and desires, and when she grows old and no longer wants to get married, then he will arrange her marriage, or going to the qaadi and asking him to arrange her marriage because that is her right according to sharee’ah.

Undoubtedly the second alternative is preferable, which is that she should go to the qaadi and ask him to arrange her marriage, because she has the right to that.

The four schools of jurispendence differ in the details on this aspect. The Hanafis (whose followers are the most numerous) are the most lenient. According to Kitab-ul-Fiqh, an adult woman has the right to marry of her own choice. The wali (guardian) has no say whatsoever if the bride and groom are of equivalent social standing. However, if they are not of equal standing, then the guardian has a very powerful veto. He can not only refuse to marry the woman, he can also get the marriage invalidated within a year of the wedding or before the couple have a child. The other schools (Shaafi, Hanbali and Maliki) are more strict. Some of them allow a veto to the wali in all cases and some allow it only if it is the woman’s first marriage. That means that they consider widows and divorcees to be independent women.

The issues about the consent of the wali have raised their ugly head in Pakistani courts a number of times with different judgements. Here is a description of two such cases:

On 25 September 1996, a single bench of the Lahore High Court consisting of Justice Abdul Hafeez Cheema ruled that a Muslim woman may not marry without the consent of her wali or male guardian – usually the father or grandfather – and that any marriage contracted by her without this consent is void. The judgment implies that men are free to marry or re-marry without anybodys consent except that of the prospective wife while no woman, whatever her age, may validly contract her own marriage without the consent of the wali or act as the wali for her daughter.

The judgment came in cases brought by two women, Ayesha Ijaz of Toba Tek Singh and Shabina Zafar of Faisalabad who had married men of their choice. Their fathers registered cases against the two women alleging that since they had married without their walis consent, the marriages were void and they had committed the offence of zina. The two women then moved the court to have the cases quashed, arguing that they were sui juris (i.e. had the legal capacity to act independently after attaining majority) and competent in law to get married with partners of their choice. The judgement upheld that the couples be prosecuted for zina as the marriages had been consummated. The Supreme Court on 23 October 1996 suspended the judgement following the admission of the appeal; the court returned the women to their fathers custody but restrained the fathers from arranging their daughters marriage to anyone else before a Supreme Court decision. The appeal is still pending.

However, in another similar case, a three-member bench of the Lahore High Court on 10 March 1997 split 2-1 in a majority decision that the consent of the wali is not required for a marriage to be valid. Saima Wahids marriage to Arshad Ahmad had been challenged by her father whose consent she had not obtained when she contracted her marriage. She spent 11 months in a womens shelter for fear that her father might kill her.

The cases have generated extensive debate in Pakistan. Judge Cheemas ruling conflicts with previous judgments which had viewed Muslim marriage as a civil contract between men and women who were free to enter the contract if they had attained puberty and were sui juris and had the marriage performed in the presence of witnesses and on payment of dower by the groom to the bride. Women activists have argued that marriages of Pakistani Muslims are governed by the Muslim Family Laws Ordinance of 1961 which in section 5 dealing with the registration of marriages does not require the consent of the wali. The standard marriage contract, the nikahnama, prepared and printed under the Muslim Family Laws Ordinance, requires only the signature of the bride and groom and of two witnesses and makes no provision for the signature or recording the consent of the wali.

You should also remember that under Pakistan’s laws, a woman convicted of zina (fornication) receives severe punishment.

So what is my opinion of this? Honestly, the Hanafi position does not look lenient at all to me. It all seems so ridiculous. A woman has the full right to marry anyone she chooses to, just like a man does. Obeying and respecting parents is a good idea but marriage is quite frankly a personal matter and parents should not interfere.

Next: Having looked at cousin marriages and forced marriages, I’ll discuss an interesting intersection of the two, arranged marriages.

Haloscan Again

Now Haloscan has restored the missing comments from March 13-14, but in the process lost the comments since. This is getting really frustrating. Here is what the Haloscan admins say:

Yes, we’ve noticed that a few user accounts didn’t sync properly with the new comments and I’m restoring them right this moment. Every comment will be restored within the next 4 hours.

I hope they restore them soon without losing anything.

UPDATE: It seems like all the missing comments have been restored.

Iraq War Worries

Robert Wright has a good article in Slate about dubious and valid fears about the Iraq war and its consequences.

Dubious fear No. 1: The war will be long and messy.
Valid fear No. 1: The postwar occupation will be very long and increasingly messy.
Dubious fear No. 2: The war will unleash a wave of terrorism in America.
Valid fear No. 2: The war will unleash time-release terrorism.
Dubious fear No. 3: The “Arab street” will boil over, overthrowing friendly regimes.
Valid fear No. 3: The aforementioned length of the Iraqi occupation will give the “Arab street” an ongoing energy boost.
Dubious fear No. 4: Saddam Hussein, with his back against the wall, will pull out his weapons of mass destruction, possibly prompting the use of nukes by Israel or the United States.
Valid fear No. 4: This war will make the future use of nukes more likely.

I think we have seen a lot of exaggeration on both the pro- and anti-war sides in the debate about this war. Regarding the dubious fear No.3 above, I wrote earlier that the claims of the antiwar folk that the Pakistani government could fall with an Islamist government replacing it are just not true in light of historical experience. Also, I think in the short term the Iraq war will go well. It is the long term (the occupation and the reconstruction) that I am worried about.

Forced Marriage: Post #1

See my first post in this series on cousin marriages here.

I’ll start out by quoting from Amnesty International’s reports about forced marriages in Pakistan as well as what sometimes happens if a woman marries someone of her own choice. Please note that even one such case is heartbreaking, but as always it is not the complete story. There are obviously happily married couples in Pakistan and a lot of them marry of their own accord (usually arranged by parents, though that is changing in the big cities). Those as always remain below our radar both because they don’t constitute a news story and because we focus on the cases of maltreatment. I also do not want to say that women’s rights are in good shape in Pakistan because they definitely are not. Usually however the problems are much deeper and look much more benign on a cursory look than the extreme cases in these excerpts will show.

According to a report by Amnesty International,

Shazia R.’s father arranged a forced marriage for her with a man more than twice her age. When 21-year-old Shazia refused to marry this man, her father beat her severely. Fearing that he would attempt to kill her, she ran away. She found refuge at Panah, a women’s refuge in Karachi set up with donations from several AI sections. Shazia has been staying at the shelter for two months and is extremely happy that she has been able to find safety.

In their report “Pakistan: Insufficient Protection of Women”:

During a visit to Pakistan in April 2000, a man approached Amnesty International delegates in a small Sindh town explaining that he and an adult woman wanted to get married but both partners had been promised in marriage as small children to their respective cousins. The prospective couple were aware of their right under the law to marry but feared violence including deaths at the hands of their relatives if they went ahead. Both partners loved their parents and did not wish to antagonize them but saw no way to claim their rights. Asked about how they had come to know of their rights, the young man reported that in his generation everyone knew their rights; in some cases, prospective couples had run away to ascertain their right and the news of this had contributed to the general awareness. Another couple approached Amnesty International in Karachi at that time; they had been underground for almost a year after a court marriage which the wife’s family did not approve of. They had threatened to find the wife and kill her wherever she might try to hide. More recently, several couples who had married of their own choice and who have since then been living underground and others who were about to get married but feared for their lives, sent e-mail messages to Amnesty International asking for advice on where they might be safe. Another couple who have left the country after receiving threats from the wife’s family without whose consent they had got married, sought Amnesty International’s help in their asylum application.

[…]In its meeting in September 2001 the Council of Islamic Ideology asserted that parents should ascertain the will of their daughters before arranging their marriages but reportedly also said that Islam has given the power to family elders to punish family members including wives and children if they were found to be involved in unethical activities. The advice appears to ignore that the law already requires that women freely consent to their marriages.

[…]While most marriages in Pakistan are arranged by both spouses’ parents, forced marriages continue to be reported. The judiciary in Pakistan has in some cases upheld the right of women to refuse a forced marriage. Very early age at marriage of girls continued to be reported despite legal provisions which fix the minimum age of marriage for girls at 16 and boys at 18. Early marriage denies girls the right to the right to education needed to prepare for adulthood; it also means premature pregnancy with its associated risks. Moreover child marriages must be assumed to be forced marriages as young girls cannot be assumed to be able to give free and full consent to the marriage. Sexual intercourse within forced marriages always constitutes rape.

Pakistani women living abroad continue to be abducted by their parents to be forcibly married to grooms in Pakistan. Usually deprived of their travel documents on arrival they find it difficult in an alien environment to obtain help to escape. 18-year old K. from Manchester who holds British nationality, was taken in April 2001 to Azad Jammu and Kashmir by her parents who told her they were together going on a holiday. In early August she was married to a man she did not know or want; a week later her parents left for the UK taking with them her identity papers. Fearing violence in the family of her in-laws, she hid with friends and contacted a UK based lawyer who succeeded in obtaining emergency travel documents from UK authorities. The young woman returned to the UK in late August 2001.

My anecdotal experience with the immigrant communities suggests that some of the immigrants do not assimilate (I am talking here of the people who immigrated themselves and not their children) and are actually fixed in their cultural mores to the time when they immigrated. In the meantime, the values and traditions of their original home have changed drastically. It is like time has stood still for them. These are probably the sort of immigrants who force their children to marry without consent.

Women who marry men of their own choice are frequently seen to damage their family’s ‘honour’; they are frequently detained by their parents, forcibly married to someone else, threatened, humiliated, assaulted or killed. If they chose to get married in court against the will of their parents, they may be charged, along with their husbands, with ‘illicit’ sexual relations under the country’s Zina [adultery/fornication] Ordinance if their parents do not recognize the legality of the marriage. The Zina Ordinance criminalizes zina, ‘fornication’, i.e. heterosexual relations between consenting adults outside marriage. The legality of a marriage is often difficult to prove for a couple who chose this form of marriage. Courts do not mandatorily maintain records of marriages which could be used to prove that a marriage was lawfully contracted. Women’s rights activists have therefore urged that certain procedureal requirements be made compulsory: that proper record of court marriages be maintained by the courts; that courts intimate the area police station of such marriage so that no criminal complaint of unlawful sexual relations can be registered; the courts should also inform the family concerned about a marriage having been lawfully contracted.

[…]On 25 August 2001, 22-year-old Hifza Kakar was shot dead by her brother at the gate of a sessions court in Quetta where police had escorted her from the local Darul Aman. Hifza had married Fayyaz Moon of her own free will in 1998 but her parents filed a criminal complaint against her husband in Pishin police station alleging that he had abducted her and committed zina. The couple were arrested by police in Faisalabad. During hearings before a sessions judge in Quetta Hifza asserted that she had not been abducted but had validly married Fayyaz of her own free will. The court reserved the judgment which was to be announced on 25 August. After the shootout, the court said that the couple were acquitted of all charges. Hifza Kakar’s brother was arrested.

Dozens of women pay with their lives when they claim their right to decide their own marriages:

In March 2000, Deeba Shaw, a 15-year-old girl in Chenaser Goth, Sindh province was shot dead by her family when they found out that she had married her neighbour without their knowledge. Her husband fled when he heard of her murder.

On 6 March 2000, 19-year-old Samina, married six months earlier and four-months pregnant, and her husband Tanveer Faisal were shot dead in their home in Jharanwala village, Sialkot district, by her brother as her family had opposed the marriage. No one is known to have been arrested.

Often couples believe themselves safe if they escape threats immediately after their wedding. Sometimes women’s groups try and mediate between the families to settle the conflict while the couple are in hiding. In many cases, families ultimately accept the fact of the marriage, especially once sons are born. However, sometimes their sense of shame is not appeased. Robina and Khushi Mohammad of Marianwala village in Gujranwala district were hunted down and killed in May 2000 by Robina’s uncle and two brothers over two years after their wedding against the wishes of her family; they had been in hiding but had finally returned to the husband’s home.

[…]Kubran Bibi was married by her parents without her consent to a man in village Chhedu, Punjab province, in 1999 but was divorced within a few months; her father then married her to Iqbal in her home village Rangeelpur of Manga Mandi, Lahore, again without her consent. When she was repeatedly beaten by Iqbal, she left him on 30 January 2001 and sought refuge in the private women shelter ‘Dastak’ in Lahore. Kubran Bibi told ‘Dastak’ staff at the time of her admission that she had not been consulted before either marriage and that her father had taken money for them; as her second husband was already married and used to beat her severely, she could neither go back to her parents nor to her husband but sought shelter and assistance to file for divorce. She expressed her fear of both her own relatives and her in-laws, all of whom had threatened her. While at Dastak, she was visited by her sister, brother-in-law and a cousin on 9 February 2001 and again by her father and sister on 16 February. She returned with them to her father’s home on the same day.

On 25 March 2001, as she was sleeping in the courtyard of the family home, Kubran Bibi was shot dead. According to press reports her cousin Ashiq killed her in the name of ‘honour’. An FIR (126/2001) was lodged by her father in police station Manga Mandi on 25 March 2001; it named Kubran Bibi’s cousin Mohammad Ashiq as the accused; he obtained pre-arrest bail. Kubran Bibi’s brother and brother-in-law were named as eye witnesses.

The HRCP [Human Rights Commission of Pakistan] concluded, ”the killing of a woman, Kubran Bibi who had recently left the women’s shelter ‘Dastak’ indicates how precarious the position of women is in a situation where even their closest relatives present a threat to them. It also points to the difficulties for those providing shelter to women in an attempt to offer some protection from the dangers they face.”

In some cases men have killed divorced women such as former wives or daughters or single female relatives of whose conduct they disapprove. In February 2000, Iliyas shot dead his daughter Shakeela in village Garjakh, Gujranwala district. Shakeela was living with her divorced mother who had consented to the young woman’s marriage to a man of her choice. In a similar case, a man killed his widowed sister Hoor Begum on 22 October 2000 in Nawabshah district because he disagreed with her choice for her daughter of a man from another community.

[…]’Honour’ killings occasioned by a woman seeking divorce also occur among the expatriate Pakistani community. In February 2001, Nawaz Bhatti was sentenced to death in Clairsville, Ohio, USA, for the murder of his wife Dr Lubaina Bhatti, her father, her sister and her niece in September 1999 in what Nawaz Bhatti perceived to be the defence of his ‘honour’ injured by a disloyal wife. Lubaina Bhatti had been persuaded to consent to the arranged marriage with Nawaz Bhatti in 1992 perhaps out of respect for her parents’ wishes. However, over the next years she filed domestic violence charges against her husband but did not pursue these for fear that he would abduct their son to Pakistan. In February 1999 she filed for divorce and when he continued to harass her, filed for protection in May 1999. On 11 September 1999, only a few days before the divorce was to be finalized, Bhatti shot her dead along with family members whom he believed to have helped her.

[…]Bakhtwar, an 18-year-old woman of the Pathan tribe from Perumal, Sanghar district, Sindh, on 8 July 2000 married Roshan Junejo, a man from the Junejo tribe, before a magistrate in Nawabshah. Her father, Qamruddin, strongly objected to the marriage as he had earlier accepted a marriage proposal for Bakhtwar from a kinsman, Akbar Pathan, which reportedly involved the payment of a large bride price consisting of Rs. 400,000 and two of Akbar Pathan’s five daughters. Bakhtwar’s mother had reportedly met and approved of Bakhtwar’s choice for a spouse. Bakhtwar did not want to marry Akbar Pathan as he was elderly, married and had a daughter older than Bakhtwar. Besides, Bakhtwar wanted to marry Roshan Junejo.

The couple following their wedding were sheltered by relatives but were found by Pathan tribesmen when trying to flee to another village. Bakhtwar was taken against her will to a relative, Fikir Mohammad Pathan in Sanghar who held her in quasi-detention. At the time, Bakhtwar’s family and several elders of the tribe gave written assurances to the Junejos that Bakhtwar would not be harmed and allowed to appear in court at a date fixed earlier for a hearing, 19 July, to state freely if she wanted to stay with her husband or with her family. They said they would respect her choice.

Meanwhile several hundred Pathan tribesmen gathered at Sanghar protesting against Bakhtwar’s disobedience and twice attacked the house where she was held, apparently with the intention to kill her. The tribesmen denounced the marriage and insisted on protecting the family’s ‘honour’ by declaring they would not allow Bakhtwar to approach the court. A spokesperson said: ”We will protect our honour. It is our tradition and part of our culture, irrespective of what the people say.”

On 18 July night, a jirga of the Pathan and Junejo tribes gathered, apparently at or near the residence of a former Member of the National Assembly (MNA) Haji Khuda Bux Rajar and decided that the girl should stay with her parents. The Pathan tribe promised the Junejo tribe that she would not be harmed if her husband agreed to divorce her and allowed her to be returned to her parents. Bakhtwar’s parents are reported to have sworn on the Qur’an not to harm their daughter. Roshan Junejo who had gone into hiding for fear of his life, was brought to the meeting and on hearing this assurance, signed the divorce papers, presumably under considerable duress. Newspaper reported on 20 July that Bakhtwar was escorted by police to Quetta where a part of the family lives.

[…]Among the positive judgments was the Lahore High Court ruling of January 2001 that a woman cannot be forced to live with her husband or her parent against her will. The court responded to a petition by Shahnaz Akhter which alleged that she had been forced to marry a man, her cousin, whom she did not choose or agree to marry and that she feared for her life if she was sent back to her parents where she said her brothers would kill her. The court directed that she be lodged in the local state-run shelter, the Darul Aman, where no one would be allowed to meet her without her consent. Months earlier, Shahnaz had written to the High Court complaining that her family was getting her married without her consent; the court had taken note of this but sent her back to her family after her brothers pledged before the court to respect her wish. Days later she was forced to marry the man her brothers had selected. Shahnaz Akhter had then appealed again to the High Court, saying: ”In the days before Islam, girls were buried alive. Now they are sold like sheep and goats. I have been sold to a man I never wanted to live with. What kind of Islam is this? I am a very unlucky woman who has been thrown to the wolves. My marriage is cruel and arbitrary.”

[…]The Sindh High Court circuit bench in Hyderabad on 21 September 2000 ordered the registration of a kidnapping and murder charge against the father and mother of Uzma Talpur, on a constitutional petition filed by Nasir Mehmood, husband of Uzma Talpur after police on numerous occasions failed to bring her to court. Nasir Mehmood, a student of Tandojam Agricultural University, and Uzma Talpur got married of their own choice on 14 November 1998 in Khairpur before a magistrate as the Talpur family disapproved of the marriage. The couple then went to Punjab province where they were arrested in Jhelum on 30 November 1998 by Hyderabad police on a kidnapping and zina charge; Uzma was subsequently handed over to her parents. Nasir Mehmood stated that police maltreated him in custody and took away the wedding certificate. When the kidnapping charge against Nasir Mehmood was heard before the Karachi High Court, the Talpur family undertook on 6 April 1999 to bring their daughter to the court but failed to do so repeatedly. The mater was then transferred to the Hyderabad bench of the High Court where, on 12 May 2000, the court was informed by Uzma’s father, Gul Mohammad Talpur,, that he had brought her to court on 20 April 1999 but that she had been kidnapped by four unknown persons. The Station House Officer of Cantonment police station, however stated that no woman had been kidnapped on that day. Despite this, another FIR alleging kidnapping was registered against Nasir Mehmood. The court issued several search orders to recover Uzma Talpur but to date she has not been found.

Most of these cases involve use of force, especially deadly force. This is however not the common practice. Most often, the pressure for or against marriage is an emotional one. Parents routinely do not ask their daughter’s opinion about a marriage prospect, assuming that she will accept. They try to emotionally blackmail their children (both guys and girls) to marry the person the parents have chosen or not to marry the person the child has decided on. If someone, especially a woman, marries of their own accord, they are socially cut off from their family. This boycott often ends after a while, especially a the married couple get a kid of their own (as mentioned in the excerpt).

One question that arises out of this discussion is how to define forced marriage. Is it forced only when physical force is applied? Or is a marriage forced, when the consent is not completely freely given whether the pressure was physical or emotional? I would go with the second definition. This brings a lot of cases not discussed in human rights reports because they are much milder, difficult to prove and very common. Arranged marriages play into this to some extent as well.

Next: Islamic injunctions about marriage, discussion of arranged marriage.

A Personal Note about Islamic Books, Law, etc.

Islamic scholars have over time worked on a number of religious issues, e.g., commentary on the Quran, collection and authenticity of the sayings of Prophet Muhammad (known as Hadith (singular) and Ahadith (plural), and fiqh which is the codification of religious rules for everything under the sun. Unfortunately, there is not much material available on the Internet. There are quite a few books, especially in Arabic, which I do not know. However, there is a large body of work, either original or translated from Arabic, in Urdu (my first language) as well. Nowadays, there is lots of material in English also.

I read a lot about Islam (Quran, Hadith, fiqh, etc.) when I was in Pakistan. My Dad has so many books it would be fair to call it a small library. But I don’t have any reference material with me in the US. Therefore, I have to rely on my hazy memory or whatever I can easily find. This is one reason why I hesistate to write about Islamic injunctions. Another reason is that my interests have changed and I am much more interested in history and politics rather than religious text or rulings. Usually my posts about terrorism, honor killings, etc. focus on the politics, culture and morality of the acts rather than whether they are prohibited or not in Islam.

However, I’ll deviate somewhat from these guidelines I have set myself in my series on marriage and later in my posts about slavery. I differ substantially from the traditional viewpoint on both these issues and there is no way for me to make my point without directly putting forth the traditional position of the four major schools of jurispendence (Imam Abu Hanifa, Imam Shafi, Imam Ahmad Bin Hanbal and Imam Malik). Note that these are all Sunni scholars from the first couple of centuries of Islam. I do not know enough about Shiite school of thought to write anything about that.

Since I cannot find much material online (other than the Quran and some Hadith collections), I’ll refer to two websites which answer questions asked of them from people. One of these sites is Understanding Islam, founded by modernist Pakistani Moiz Amjad. The other site is Islam: Questions and Answers where conservative Saudi Sheikh Muhammed Salih Al-Munajjid answers questions on various topics. I don’t endorse either of these websites as containing the correct information on Islamic topics, but I’ll make use of them to show some of the ideas among Muslim scholars.

Asylum in Canada

The Manifest Border, a legal blog focussed on immigration, pointed me to this story in the Washington Times:

Thousands of illegal immigrants from Middle Eastern countries are seeking asylum in Canada, massing in run-down motels and refugee sanctuaries on the U.S. side of the border, where they are sheltered —- and sometimes hidden —- from the immigration service.

Some, like Mustafa, are assisted by U.S. government-funded agencies until their hearing with Canadian officials.

[…]U.S. officials yesterday said they typically support the refugee services and that their benefits outweigh their harboring of illegals.

“It becomes a matter of how these [illegals] are being advised,” said Bill Strassberger, a spokesman for the Bureau of Immigration and Customs Enforcement. “If they are being told to avoid the law, then it would be something we would look into.” He added that the aliens who are leaving the country are besieging refugee shelters more than the immigration service. A spokeswoman for Canada’s immigration service declined to comment on the situation.

Since fall, when the registration deadline kicked in, Freedom House, a 35-bed refugee facility at the foot of the Ambassador Bridge, has seen an increase of 275 percent in refugee claims to Canada, from 70 last year at this time to 263 this year.

“We started with Iraqis in the fall and moved on to Pakistanis” who were leaving the United States for Canada, said David Koelsch, a staff lawyer at Freedom House. Until recently, “90 percent of our work has been getting people asylum in the U.S.,” he said. “But now, they know that to go before the INS is to be deported and to be locked up in jail while they wait to be deported.” Freedom House received 63 percent of its $844,691 income last year from U.S. government grants, according to records.

An immigration official in Detroit, speaking on the condition of anonymity, did say that any U.S. agency that assists illegals in eluding registration is “helping them circumvent the law.” “We can take [illegals] in if they are not here for a valid purpose. But is not always easy finding them,” the official said.

Now, being an illegal immigrant is a separate matter, but “eluding” special registration by leaving the US before the deadline is entirely legal according to BCIS (or whichever agency replaced the INS).

CALL-IN GROUP 3 (extended 2/19/03): CITIZENS OR NATIONALS OF Pakistan or Saudi Arabia

Who Must Register (Group 3)?

If you are in this category you must register at a designated Immigration Office on or before March 21, 2003.

  • If you are a male born on or before January 13, 1987, and
  • If you were inspected by an immigration officer and last admitted to the U.S. as a nonimmigrant on or before September 30, 2002
  • If you did not have an application for asylum pending on December 18, 2002, and
  • If you will be in the U.S. at least until March 21, 2003.

So, if you leave the US before March 21 (or whatever the deadline for your group is), then you are not required to register.