Passionate Legalities of Marriage

1

By

Tipu Salman Makhdoom

Advocate Supreme Court of Pakistan

CHAPTER 1

PASSIONATE LEGALITIES OF MARRIAGE

Marriage as a Control of Biology:

Sex is good for health. Very good in fact. Not only for body, but also

for brain, which incidentally is the largest sex organ in human body.

Scientific studies in this regard have been voluptuous. One set of

studies shows that men who reported highest frequency of orgasm

enjoyed life expectancy 200 percent more than those who lagged

behind. Another set indicates that men who had sex at least 3 times

a week slashed their heart attack risk to half. Yet other studies

demonstrate that frequency of sexual activity is directly proportional

to the lower risk of breast cancer in women and that of prostate

cancer in men.1

1 Daniel G. Amen, M.D., Making A Good Brain Great, Three Rivers Press, New York, 2005, 134-135.

2

But sex has been a major social challenge since the dawn of

civilization. In order to avoid social disruption resulting from individual

friction, society has always striven to tame & control individual social

behavior; primal being male desire to have indiscriminate sex, even

with the females of other males. For centuries men were considered

polygamous, if not cheaters, by nature. Accepting this evilness as a

part of their natures, a compromise was struck by the social morality.

Thus, social norms were devised and red light areas were tolerated

to satisfy men’s unruly disposition at the cost of keeping the fabric of

society. Though traditional wisdom was perhaps right about the

natural inclination of men to cohabit more and more women, they

were wrong about the cause of it. Modern evolutionary theories

indicate that this adulterous behavior of men can be networked in

their genes, with an evolutionary cause, if not a justification. Survival

is a universal natural drive found in every life form. With the

emergence of the bulging logical brain, the frontal lobe in humans,

this drive is thought to have developed into a desire for immortality.

While the intellect tries to achieve immortality of its ideas, biology’s

goal is immortality of its genes. The best way for such an

immortalization in case of ideas is to make them interesting and

useful, and in case of biology is to make sure that the genes are

transferred in the children. Since man and woman contribute

differently in procreation, their strategies for ensuring the

transference and survival of their genes in next generation also

evolved on different lines. A woman ensures transference of her

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genes in the next generation by getting the genetically superior

sperms for fertilization of her egg so that her genes are transferred in

a ‘survival of the fittest’ kind of next generation who survives and

with whom her genes also survive. For this she needs to be choosy

and select the best of all available males, best in terms of

survivability. Next she has first to keep her children in her womb for

quite a long time and also has to take good care of them even after

birth as unlike most animals, a human baby does not get ready for

independent survival until after several years of birth. This forces a

woman to get commitment and loyalty from her sexual partner so

that, with his help, she can ensure the survival of her kids till the point

that they stand on their own two feet. This very well explains the

loyalty driven demands of women in romantic relationships. On the

other hand, a man can ensure survival of his genes by fertilizing

maximum number of his sperms with maximum number of eggs

thereby increasing the statistical chances of his genes survival. This

he can achieve by cohabiting with as many women as he can. This

tendency has been observed in many animal males2 and very well

explains the adulterous nature of the man.

This however, could not be understood by the Church in the middle

ages. Considering this biologically enshrined psychological nature of

man as essentially evil, medieval Church tried to purify him by

promoting monogamy with its typical religious zeal and raising the

2 Jared Diamond, The Rise and Fall of the Third Chimpanzee, Vintage, 1992, 77.

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standards of morals, especially sexual morals, ever higher, though

seldom with much success.3 Although without much success in case

of men, this purification drive was a great success in case of women.

Male dominated Church which was already biased against women,

taking the trail from the myth of original sin, was forced by men to

solve the problem of parental identity of children. This was achieved

by the application of strictest moral code on women, especially

regarding sexual behaviour. After all no man wants to invest his time,

effort and resources in children which do not carry his genes. So

while adulterousness of men with prostitutes was tolerated, as it did

not disturb the certainty of parentage and genetic identity of

children, every effort was made by man dominated society and

Church to snub the sexual drive of women. After all any sexual

adventure by women in those dark ages of scientific knowledge

would have brought genetic identity of children in jeopardy leaving

bewildered men without any means of making sure that the child

being described by the mother as theirs was actually—genetically—

theirs. This resulted in creation of such religious morality and social

norms which inculcated deep rooted fear in women’s minds

regarding sex and a consequent psychological inhibition developed

in the female minds against losing virginity before getting married. It

is even believed that whatever general intellectual inferiority of

women is there today, it has resulted from the restraint upon curiosity

3 Will Durant, The Story of Civilization: 4, The Age of Faith, Simon and Schuster, 1950, 76.

5

imposed by the fear of sex.4 Sadly, this medieval trend has seeped-in

the modern times. Religious leaders are still fighting against such sins

as intercourse before marriage, infidelity, homosexuality, and

abortion. 5 In globalization of culture, when traditional or

fundamental societies receive western liberal and progressive moral

values, their religious monopolists call for crusades in order to protect

their future generations from the evil of corrupt moral values.6 But

moralists always forget that ‘[u]nderestimating the novelty of the

future is a time-honored tradition’ of the human society.7

Legal License to Impunity: Marriage

People in their teens should be thankful to our legislature that

masturbation is not a crime.

Ah, before I proceed with my rather scandalous prose, let me point

out that masturbation is a normal and recognized word of English

language which describes a phenomenon that is common in

people of all ages and gender but is considered popular among the

teenagers. What I am saying in essence is that if my prose looks

vulgar, think again. The word masturbate has been defined by 4 Bertrand Russell, Marriage and Morals, Routledge, 1929, Reprint 1991, 181.

5 James Lull & Eduardo Neiva, The Language of Life: How communication Derives Human Evolution, Prometheus

Books, 2012, 97.

6 Al Gore, The Future, WH Allen, 2014, 132.

7 Daniel Gilbert, Stumbling on Happiness, Vintage Books, 2007, 124.

6

Oxford English Dictionary8 to mean to “arouse oneself sexually or

cause (another person) to be aroused by manual stimulation of the

genitals.” If you still find me indecent, blame Standard English

Dictionaries, not me.

And by the way, our concept of decency is totally messed up. For

instance, in our culture, a woman finds it very embarrassing and

people find it quite vulgar for a woman to go to pharmacy and ask

a male salesman for condoms. It is considered that by committing

this sin, a woman basically invites a stranger to think about her

having sex. On the other hand, it is considered very normal, decent

and socially accepted that a woman introduces his child and

husband to a stranger male. I think this is quite illogical. Nothing

definite is pointed in a demand for condom which can lead one to

think that perhaps the woman asking for condom wants to use it for

sex or maybe she is taking it for her sister or a friend and she is not

going to use it herself. But telling someone that they were her child

and husband conveys it most certainly that she had sexual

intercourse with this man which resulted in her pregnancy and later

birth of this child. There is nothing vulgar or indecent in this for sure;

but so is the case with the previous example. Still, somehow, we find

the first instance an indecent one but not the second one.

A book talking about sex in simple words, i.e., referring sex as sex, is

generally considered indecent. However, our laws talk about sex 8 The Concise Oxford Dictionary of Current English, Clarendon Press, 9th Edition, 1995.

7

openly, frankly and in simple words i.e., sex is referred as sex. Laws,

which are published by government and every citizen is required to

know them by heart, ‘ignorance of law is no excuse’ being one of

the fundamental principles of our law. A glaring example is the

provision prohibiting fornication9 which states that “A man, and a

woman not married to each other are said to commit fornication if

they willfully have sexual intercourse with one another.”

After this rhetoric meant to convince you to keep reading my vulgar

prose, let’s come back to masturbation. It just occurred to me one

day that law controls almost every aspect of our life. This includes

even the most colourful aspect of our life, sex; making love, to use

the literary-cum-romantic phrase. We cannot make love with

whomever we like. We cannot make love wherever we like. And we

cannot even make love in whichever way we like (more on this

later)! If we do, we are liable to spend many years of our lives behind

the bars. But sex, I mean the act of having sex, involves two persons.

Is masturbation prohibited as a single person sex? Islam, which is our

state religion,10 does not prohibit it; perhaps not. While Imam Malik

and Imam Shafi regard masturbation completely against Islam,

Imam Ahmed bin Hambal proves very progressive and considers it a

natural and a completely lawful act. Imam Abu Hanifa, followed by

the huge dormant majority of Pakistani Muslims, on the other hand

9 Pakistan Penal Code, 1860, section 496-B.

10 Constitution of Islamic Republic of Pakistan, 1973, Article 2: Islam to be State Religion. Islam shall be the State

religion of Pakistan.

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takes a middle way considering it bad but probably a forgivable

mistake.11 So much for religious morality, what about positive law?

Starting from the start, I scanned the criminal code12 to see if it

defines masturbation as a crime. Pleasantly, could not find it. But the

excitement proved short-lived. As usually happens with our negativity

prone thought process, soon I started having second thoughts.

Perhaps the decency of our legislature forced it from referring such a

shameful act so openly; in such simple, shameful, indecent terms.

After all indecency is a crime in itself and uttering an obscene word

can entail a prison sentence of up to three months.13 In our Country,

criminalizing masturbation by our conscientious legislature in some

obscure Arabic term can’t be considered abnormal. Crimes like

“Itlaf-i-udw”14 which in fact is amputation and is punishable with up

to 10 years prison sentence, or “Isqat-i-janin”15 which simply put, is

abortion and is punishable with up to 7 years in jail support my

insecurity. Or maybe, I thought, Masturbation could emerge as a

11 Muhammad Aftab Khan, Ph.D, Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 685.

12 Pakistan Penal Code, 1860.

13 Pakistan Penal Code, 1860, Section 294: Obscene Acts and Songs: Whoever, to the annoyance of others, (a) does

any obscene act in any public place, or (b)sings, recites or utters any obscene songs, ballad or words, in or near any

public place, shall be punished with imprisonment of either description for a term which may extend to three

months, or with fine, or with both.

14 Pakistan Penal Code, 1860, section 333: Itlaf-i-udw. Whoever dismembers, amputates, severs any limb or organ

of the body of another person is said to cause Itlaf-i-udw.

15 Pakistan Penal Code, 1860, section 338-B: Isqat-i-Janin. Whoever, causes a woman with a child some of whose

limbs or organs have been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of

saving the life of the woman, is said to cause Isqat-i-janin. Explanation. A woman who causes herself to miscarry is

within the meaning of this section.

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crime of consequence—a by-product crime—an act which

becomes crime only if done while committing another crime; takes

me back to Safia Bibi, a blind girl who lodged complaint against her

rape and ended up in jail on the charge of adultery. The case

attracted international coverage in early 1980s when Safia Bibi an 18

years old blind domestic servant of a landlord was raped by her

employer and his son. Her father lodged an FIR16 for the rape of her

daughter against the landlord and his son. What turned out under

the Islamic laws17 imposed on Pakistan by its pious dictator, the self

proclaimed soldier of Islam,18 late General Muhammad Zia ul Haq,

was disturbing. Trial court acquitted both the accused of the

charges of rape because of insufficient evidence but convicted

Safia for public lashing & 3 years’ imprisonment on the ground that

she herself confessed of committing the crime of fornication as she

admitted to have illicit sex with her rapist. It proved too much for

some. Media took up the case aggressively and it was mainly

because of the extensive media coverage that Safia’s case was

later reviewed and she too was acquitted.19 I think Safia will definitely

like this beautiful literary description of Zia’s hotly contested and

aggressively out-poured piousness:

16 Abbreviation for “First Information Report”, which is the jargon for the crime complaint lodged with the police

under section 154 of the Code of Criminal Procedure, 1898.

17 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

18 Hamid Khan, Constitutional and Political History of Pakistan, Oxford University Press, 2nd Edition, 2009, 323.

19 Taimur-ul-Hassan, The Performance of Press During Women Movement in Pakistan, South Asian Studies, A

Research Journal of South Asian Studies, Vol. 25, No. 2, July-December 2010, 311 to 321, 314.

10

The generals who had called Zia a mullah behind his back

felt ashamed at having underestimated him: not only was

he a mullah, he was a mullah whose understanding of

religion didn’t go beyond parroting what he had heard

from the next mullah. A mullah without a beard, a mullah

in a four-star general’s uniform, a mullah with the instincts

of a corrupt tax inspector.20

The haunting vague impressions of this case have left a lasting

imprint on my childhood mind; law is such a cunning monster! So I

decided not to take chances. I checked again, more carefully this

time. None, to much relief. Yet another agonizing thought. We live in

a common law country, which means that law is theoretically written

in statute books, but it “means” what our judiciary says it “means”.

Law often proves to be more complicated than it looks. It’s a

common experience of lawyers that reading the plain language of

law, which itself is often quite obscure and sometimes even self-

contradictory, a normal man understands one thing but when a

case goes to court on the basis of such a law, it turns out, many a

times surprisingly, sometimes shockingly, that court understood

something quite different. An interesting example is the excitement

that was generated among lawyers on initiation of DNA testing in

medical investigation of crimes. This feeling of euphoria was less

because of technological advancement of our system of criminal

20 Mohammed Hanif, A Case of Exploding Mangoes, Random House Inida, 2008, 32

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administration of justice and more because of that agonizing

uncertainty that a lawyer sometimes feels while, say, representing a

by rape victim when during evidence he figures out that the story he

was told by his client was not making sense and may be, just may

be, he was soon going to be a part of a dirty plot to entrap an

innocent man in jail for a decade.

Our law of evidence 21 has a very progressive provision which

provides that any futuristic techno evidence which is not defined in

law but will become available in future owing to technological

progress is to be deemed as defined in law.22 On the eve of initiation

of DNA evidence it was a common understanding that this scientific

certainty will end many of such frivolous cases which have become

a haunting reason for the rottenness of our lethargic legal system.

However, a full bench 23 of Supreme Court refused bail to an

accused rapist, although the DNA report in his case said that the

sperms found on the body of the rape victim were not his. The Court

held that DNA report of the sperms found on the victim in a rape

case should only be considered evidence if there is no reliable eye

witness; and even then it would be treated as of secondary nature.24

21 Qanun e Shahadat Order, 1984

22 Qanun e Shahadat Order, 1984, Article 164: Production of evidence that has become available because of

modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any

evidence that may have become available because of modern devices or techniques.

23 A Full Bench of a Court is a bench consisting of three judges.

24 Aman Ullah Vs. State, PLD 2009 SC 542, 543. “3. According to medico-legal examination of the prosecution

namely, Mst. Gulshan Bibi, she was about 18 years of age at the time of occurrence; her hymen was found torn at

multiple places which bled on touch and the vagina admitted two fingers but rightly and painfully. From this

12

Since rape victim in that case had alleged the offence on that

particular accused, court preferred word of the victim on the word

of DNA. Words of a rape victim often fall heavy on legal ears.

A scary thought came to mind, what if some judgment had made

masturbation a crime while interpreting some other sex related

case? Searched again and failed. May be our legislators have

grown modern, like some of Islamic scholars who have even allowed

the use of vibrators for female masturbation.25 So, at least I could

masturbate with impunity. It means that police cannot break into my

house, on secret information, in order to catch me red-handed in my

wash-room, masturbating. Even a magistrate cannot issue a search

warrant to the police officers to search my home, looking for

evidence pointing me conducting—or more precisely committing—

masturbation. Even my S.H.O.26 cannot call me to police station, on

the complaint of my neighbor, to investigate if I do masturbate in my

medical evidence, it is obvious that sexual inter-course had been freshly committed with the said lady and further

that she was not a female of easy virtue and was not used to committing sexual intercourse. No reasons could be

offered to us to explain the alleged substitution of Amanullah [bail] petitioner with the person who had actually

committed the sexual intercourse with the said lady. According to the police file, the petitioner had been declared

innocent and his discharge had been recommended only because the C.A.M.B. Forensic Services Laboratory had

found, after the D.N.A. test, that the traces of semen found in the vaginal swabs of the prosecutrix were not those of

Amanullah petitioner. Such-like reports of the so-called experts are only corroborative in nature and are required

only when the ocular testimony is of a doubtful character. In the present case, as has been mentioned above, no

reasons could be offered as to why the prosecutrix who had admittedly been subjected to sexual intercourse, should

have spared the actual offender and should have, instead substituted the petitioner for him. In the circumstances, at

least prima facie and for the purpose of this bail petition, it could not be said that the testimony offered by the

prosecutrix could admit of any doubt.”

25 Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 185: A divorced woman is

allowed to use a vibrator to satisfy her sexual desire if it is the last resort instead of committing fornication.

26 Station House Officer, the officer in-charge of a Police Station.

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wash-room at night—alone of course. It seems that I actually have

some freedom.

So teenagers in my country (and also non-teens) can masturbate

without fear of ‘Chappa’—a Police raid in local slang. But what are

the legal options available to a teen who is bored of masturbating

and wants to have sex with a partner. By the way the latest research

on teenagers’ concepts about ‘having sex’ shows that while almost

all of them consider penile-vaginal intercourse to be sex, most of

them also consider penile-anal intercourse as sex. And while many

include manual and oral stimulation in sex, some even consider

kissing, dating and touching the breasts as falling in the definition of

having sex. 27 But whatever he thinks, a local internet-connected

global teen can’t have sex with his or her pet, no matter how lovey-

dovey they may be, because the punishment is up to life

imprisonment. 28 Without going into rather awkward discussion of

whether sex with an animal ‘should’ have been criminalized or

would it have been better to let the social morality deal with it, we

will definitely enjoy scrutinizing the interesting contours of vagueness

of the provision which actually criminalizes sex with a pet; which

otherwise should have been a straight forward simple task of legal

27 Richard M. Lerner & Laurence Steinberg (Ed), Hand Book of Adolescent Psychology, John Wiley & Sons, Inc, 2nd

Ed, 2004, 194

28 Pakistan Penal Code, 1860, section 377: Unnatural Offences. Whoever voluntarily has carnal intercourse against

the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with

imprisonment of either description for a term which shall not be less than two years nor more than ten years, and

shall also be liable to fine. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this selection.

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drafting. What this “anti-pet” law in fact prohibits is “unnatural sex”,

which it defines as the act of sex “against the order of nature” with

any man, woman or animal. This unromantic provision clarifies that

unlike most of the contemporary teens, by having sex it simply

means penetration for purposes of getting sexual pleasure.

A series of very intriguing questions arise; whether penetration in this

provision means penetration of penis or does it criminalize

penetration of any body part into the body of another? This is

ambiguous. Does law intend to criminalize penetration of tongue

into the mouth of the partner? And by the way which body part of

the receiving partner will constitute the penetration, vagina, anus or

mouth? Will a girl penetrating her finger in the mouth of a boy can

be booked under this offence? I had never thought about it; what

really is the sex “in the order of nature”? Mind boggling. It seems that

the “naturalness-of-the-sex” in the traditional wisdom is tied up with

its functionality; procreation. So the penile-anal, animal or “same-

sex” sex is considered “unnatural” as it cannot produce babies.

Lately, however, a challenge to this traditional concept of

“naturalness-of-sex” is gaining popularity. According to this new

view, instead of functionality, naturalness of sex should be gauged

on the basis of its observance by the number of animal species in

nature. On this criterion, homosexuality seems very popular, perfectly

normal and quite natural as it has been observed that at least 1,500

animal species, including lions and dwarf chimpanzees practice

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homosexuality regularly.29 But courts have crystallized this Hegelian

law. A larger bench30 of Supreme Court declared that sex against

the order of nature means penetrating penis in the anus.31

So far so good, it seems that oral sex is not a crime. By the way oral

sex is also allowed in Islam. Muslim jurists have considered this

question deeply and realistically and concluded that for the

husband to perform cunnilingus on his wife or for the wife to perform

fellatio on her husband is completely Islamic and there is no sin in it.

However, couples are advised to take care as if while the wife is

performing oral sex on her husband and during sucking husband

comes and semen are released, such oral sex is considered Makrooh

(blameworthy), though still not illegal.32

But the naughty mind doesn’t stop here. Another series of new

questions arise (I hope these questions are not initiated in the Police

mind). Does this offence of unnatural sex, which is committed when

a man penetrates his penis in the anus of a man, animal or a woman

imply that an act of man having vaginal sex with a female monkey,

or the act of a monkey having a vaginal sex with a woman, is legal?

29 1,500 animal species practice homosexuality, October 23, 2006, www.news-medical.net/news/2006/10/23/1500-

animal-species-practice-homosexuality.aspx, Accessed on 07th March, 2015: “The most well-known homosexual

animal is the dwarf chimpanzee, one of humanity’s closest relatives. The entire species is bisexual. Lions are also

homosexual. Male lions often band together with their brothers to lead the pride. To ensure loyalty, they strengthen

the bonds by often having sex with each other.”

30 A larger bench is a bench of the court consisting of more than 3 judges.

31 Sain Vs. The State, 2007 SCMR 698, 703: The offence consists of penetration by the penis into the anus, and the

merest penetration suffices to establish the offence. Proof of ejaculation is not necessary for conviction.

32 Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 184.

http://www.news-medical.net/news/2006/10/23/1500-animal-species-practice-homosexuality.aspx

http://www.news-medical.net/news/2006/10/23/1500-animal-species-practice-homosexuality.aspx

16

As the law stands now, it pretty much seems like that! But what does

“stands now” mean? What you are thinking might be out-right weird,

but it is right; unless a case of a lovey-dovey human and, his closest

living cousin, monkey couple comes to court and court decides

whether or not to extend the meaning of this obscure provision to

the monkey genitals, we are forced to keep our fingers crossed.

Same is the case with oral sex. Unless police arrests a couple having

oral sex red-handed and puts the court in the awkward position of

deciding the legality of intimate personal sexual positions and

practices, we are not sure if it’s a crime too! Logic cannot come to

our rescue here as the great judge Holmes rightly said in 1881 that

“[t]he life of the law has not been logic: it has been experience.”33

If the naughty mind is not controlled, a stream of dirty thoughts

continues. The above two inter-specie cases would not even

constitute the crimes of fornication34 or adultery35, both of which

require both partners of sex to be humans and inclusion of an animal

partner will take the act out of the ambit of this crime. Same is the

case with rape law which cannot be committed unless both the

rapist and the victim are humans.36

33Oliver Wendell Holmes, The Common Law, The Belknap Press of Harvard University Press, 2009, 3


35 Pakistan Penal Code, 1860, section 497.

36 Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a

woman under circumstances……..

17

On serious reflection however, I figured that this law of “unnatural

sex” is in fact very feminist; and discriminatory too. To start with, if its

discriminatory its illegal because every discriminatory law is out right

violation of Article 25 of our grand law, the Constitution itself which

forbids legislature from enacting any law which would create

discrimination on the basis of sex.37 Keeping in mind this provision

criminalizing only that sexual act which involves penetration of penis

of one partner into the anus of another, it is clear as a bright sunny

day that whereas a gay couple will fall squarely within its ambit,

booked for a hell of a life imprisonment, a lesbian couple will go scot

free. Obviously, in lesbian sex there is no—there cannot be, by the

very definition of it—penetration of penis. It seems that by not

prohibiting lesbian sex in fact our law has legalized it, as the basic

principle of our Constitution says that what is not prohibited by law is

presumed to have been allowed. 38 Thus by criminalizing sex

between two male citizens while legalizing sex between two female

citizens the legislature has discriminated between gays and lesbians

and thus violated its own mother, the Constitution.

37 Constitution of Pakistan, 1973, Article 25: Equality of citizens. (1) All citizens are equal before law and are

entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this

Article shall prevent the State from making any special provision for the protection of women and children.

38 Constitution of Pakistan, 1973, Article 4: Right of individuals to be dealt with in accordance with law, etc. (1)

To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen,

wherever he may be, and of every other person for the time being within Pakistan. (2) In particular: (a) no action

detrimental to the life, liberty, reputation or property of any person shall be taken except in accordance with law; (b)

no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person

shall be compelled to do that which the law does not require him to do.

18

Coming back to our frustrated teen, who desperately wants to have

sex but cannot do so with his pet or with a same sex friend. What

could he do? Hmmm….let me think. Having sex with an opposite sex

friend sounds a good idea. After all every teen in the western world

does it. Well, some don’t, and they are normally referred to

psychologists for being so “unnatural”! It seems even the biological-

psychological naturalness is ordained largely by culture--

postmodernism. My suggestion to such bored teens is to be sensitive

to their own cultural subtleties because the western “naturalness”

can put them behind the bars for up to five long years as having sex

without getting married is a serious crime here.39 Don’t even think

about it. When in Rome, do as Romans do; simple, get married

before you fuck dude!40

“Fuck” used to be a very offensive word and it would never be used

is decent writing. If at all, it used to be referred as the “F-word”. This

however is changing. Not only standard dictionaries have started

defining it without any warning, there are actually serious articles

39 Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are

said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits

fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to

fine not exceeding ten thousand rupees.

40 The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 9th Edition, 1995 defined “fuck” as

an act of sexual intercourse. However, before the next word, fuck-up, there is a section on usage, which says,

“Although widely used in many sections of society, fuck is still generally considered to be one of the most offensive

words in the English language. In discussion about bad language it is sometimes referred to euphemistically as the

F-word.” However, this passage of usage is not there in Oxford Advanced Learner’s Dictionary of Current English,

Oxford University Press, 8th Ed, 2010 which simply defines “fuck” as “to have sex with s[ome]b[ody].”

19

written on it. For instance, Law College of Ohio State University

published a 74 pages article on it, titled “Fuck”.41

Back from the epistemology to the physics of fuck; marriage.

Marriage is generally seen as a civil contract.42 A contract is defined

in our law as a legally enforceable agreement, 43 where agreement

is a set of mutual promises.44 A legally enforceable agreement is the

one which has been entered after fulfilling the conditions laid down

by law. Main such conditions are, that:

(a)- Agreement should have been made by the parties who are

legally competent to do so, i.e., they should have attained the age

of 18 years, should be of sound mind, etc.

(b)- Agreement should have been entered between the parties with

their free consent i.e., neither by coercion, nor by fraud, etc.

41 Christopher M. Fairman, Fuck, Public Law and Legal Theory Working Paper Series No. 59, Center for

Interdisciplinary Law and Policy Studies Working Paper Series No. 39, The Ohio State University, Moritz, College

of Law, March, 2006, 1-74, 11:

“Linguists studying fuck identify two distinctive words. Fuck1 means literally “to copulate.” It also encompasses

figurative uses such as “to deceive.” Fuck2, however, has no intrinsic meaning at all. Rather, it is merely a word of

offensive force that can be substituted in oaths for other swearwords or in maledictions.”

42 The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah,

Mansoor Book House, Lahore, Reprint 2011, section 239: Definition of Marriage. Marriage (nikah) is defined to

be a contract which has for its object the procreation and the legalizing of children.

43Contract Act, 1872, section 2. In this Act the following words and expressions are used in the following senses,

unless a contrary intention appears from the context: ….. (h) An agreement enforceable by law is a contract….

44 Contract Act, 1872, section 2 (e): “Every promise and every set of promises, forming the consideration for each

other, is an agreement.”

20

(c)- Agreement should not have been entered to achieve any illegal

object, for instance an agreement to commit robbery will not be

enforced by our Courts.45

As a conceptual limitation, breach of a contract between two

private parties is never interfered by the police force of state which

always results in a monetary compensation, not in arrest and a prison

term. 46 If marriage is a contract, why has its violation been

criminalized? To be honest, marriage does not fit-in as a contract. If

the act to be done is illegal, doing of that act, whether before or

after entering into a contract will be a crime. A good example is

murder. If, however, the act is legal, for example sale of my house, it

will be legal if done through a contract and any breach of this sale

contract will entail monetary compensation, no offence. On the

other hand, if I will sale my house without entering into a legal

45 Contract Act, 1872, section 10: All agreements are contracts if they are made by the free consent of parties

competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to

be void.

Nothing herein contained shall affect any law in force in [Pakistan], and not hereby expressly repealed, by which

any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration

of documents.

46 Contract Act, 1872, section 73: When a contract has been broken, the party who suffers by such breach is entitled

to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby,

which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the

contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect

loss or damage sustained by reason of the breach.

When an obligation resembling those created by contract has been incurred and has not been discharged, any person

injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such

person had contracted to discharge it and had broken his contract. Explanation – In estimating the loss or damage

arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-

performance of the contract must be taken into account.

Illustrations……..

21

contract, law will simply ignore my act of sale as if it never

happened. No offence. Looking in this background, sex is not an

illegal object to be achieved. In fact it is considered a sacred act

and our Constitution proclaims to protect it.47 But doing of this in

essence a legal act, without fulfilling the procedural requirements of

contract is not simply ignored by the State as it does in cases of such

ignorance of procedural law in other private contracts. Nor the

breach of the contract of marriage results in monetary

compensation, like all the other breaches of contracts. Marriage

does not fit into a contract, and sex into a lawful object.

In order to make sense, perhaps we should see sex and marriage

from a fresh angle; from the angle of a license.

Even though Article 18 of the Constitution empowers the legislature

to regulate only a ‘trade’ or a ‘profession’ by a licensing system,48

people generally see Nikah Nama (marriage certificate) as a license

to have sex and produce babies. Perhaps Pakistanis generally view

47 Constitution of Pakistan, 1973, Article 35: Protection of Family, etc. The State shall protect the marriage, the

family, the mother and the child.

48 Constitution of Pakistan, 1973, Article 18: Freedom of Trade, Business or Profession. Subject to such

qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade

or business:

Provided that nothing in this Article shall prevent:

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any

such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

22

sex as a trade and producing babies as a profession. Seeing

marriage as a license is not that unreasonable after all. Marriage

makes a lot of sense as a license to have sex and make babies. This

means that sex is a state controlled act; it is allowed only with a

permit (called marriage certificate) from the state, without which it is

a crime, and you a criminal.

Licenses under the law are issued on the basis of proved

qualifications. For instance, license to practice law is issued after

proving that you have acquired the requisite legal education and

done the initial practice under the supervision of a qualified legal

practitioner. Similar is the case with license to practice medicine.

License to practice law is issued under the Legal Practitioners’ Act,49

while license to practice medicine is issued under the Medical

Council Ordinance; 50 and both these laws lay down the

qualifications which need to be proved before a license under these

laws can be granted. But which law controls our marriages and what

are the qualifications that this law requires before issuing this

marriage-license?

The law defining and controlling our marriages is Islamic law or

‘Shariat’. The Shariat Application Act51 in its section 2 says,

49 Legal Practitioners and Bar Councils Act, 1973.

50 Medical and Dental Council Ordinance, 1962.

51 The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962

23

“Notwithstanding any custom or usage, in all questions

regarding succession (whether testate or intestate),

special property of females, betrothal, marriage, divorce,

dower, adoption, guardianship, minority, legitimacy or

bastardy, family relations, wills, legacies, gifts, religious

usages or institutions, including waqfs, trusts and trust

properties, the rule of decision, subject to the provisions of

any enactment for the time being in force, shall be the

Muslim Personal Law (Shariat) in case where the parties

are Muslims.”

Thus unless legislature passes an enactment which over-rides Muslim

Personal Law, Shariat is the applicable law. Just as Shariat does not

require the registration of Nikah (marriage) but since Family Laws52

makes it mandatory, it is required. A simple question; we can find the

legislative enactments in the statute books published and

maintained by the state, where does we find ‘Shariat’ or ‘Muslim

Personal Law’? Answer is not that simple; in the opinions of scholars.

That’s true. And the shades of ambiguity multiply when you also take

into consideration the fact that ‘Shariat’ for each sect of the Muslims

is different and in any given case, ‘Personal Law’ of that particular

sect will be applied.

That’s pretty messy. No wonder lawyers charge so much. So, after

figuring out which law defines and controls our marriages we come 52 Muslim Family Laws Ordinance, 1961

24

back to our question of what are the legal qualifications for getting

the marriage-license? Under our ‘Shariat’ or ‘Muslim Personal Law’

proof of being able to physically perform the act of sexual

intercourse is not required, nor that of actually producing babies, nor

even that of being able to maintain the wife. Even holding of a

good moral character is not a pre-requisite for getting marriage-

license. Interesting, but then what are actually the qualifications that

are required? Before you can get the license to have sex and make

babies you need to prove that you have attained the requisite

age,53 requisite faith,54 legal capacity to get this license (unmarried if

you want the license as a wife and married to a maximum of 3

women in case you applied for license as a husband)55 and that you

53 Child Marriage Restraint Act, 1929, section 2. Definitions. In this Act, unless there is anything repugnant in the

subject or context, (a) “child” means a person who, if a male, is under 18 years of age, and if a female, is under

16 years of age.


Mansoor Book House, Lahore, Reprint 2011, section 248: Difference of Religion. (1) A Muslim male may contract

a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with

an idolatoress or a fire-worshipper. A marriage, however, with an idolatoress or a fire-worshipper, is not void, but

merely irregular. (2) A Muslim woman cannot contract a valid marriage except with a Muslim. She cannot contract

a valid marriage even with a Kitabia, that is, a Christian or a Jew. A marriage, however, with a non-Muslim, whether

he is, a Kitabi, that is, a Christian or a Jew, or a non-Kitabi, that is, an idolator or a fire-worshipper, is irregular, not

void.


Mansoor Book House, Lahore, Reprint 2011, section 244: Number of Wives. A Muslim may have as many as four

wives at the same time, but not more. If he marries a fifth wife when he has already four; the marriage is not void,

but merely irregular.

Section 245: Plurality of husbands. It is not lawful for a Muslim woman to have more than one

25

are not mad; although lunatics can legally get married through their

guardians.56 Pretty interesting.

Now let’s see how does law deal with the marriage culprits; those

who violate the marriage-license law and make ‘unlicensed love’.

First is Rape. It is the case where a person has sex with a woman

without her consent.57 It is an outrageous violation of the marriage-

license law and thus is dealt with strictly. On filing of complaint,

police does not need a warrant from magistrate before arresting the

accused and the punishment is anywhere from 10 years in jail to

straight away death.58 However, one interesting aspect of this law is

that the offence of rape is ‘male’ specific. Section 375 of Pakistan

Penal Code, 1860 clearly states that ‘A “man” is said to commit rape

who has sexual intercourse with a “woman”…’ This means that this

crime can only be committed by a man. A woman can never

56 Contract Act, 1872, section 11. Every person is competent to contract who is of the age of majority according to

the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to

which he is subject.

However, under Islamic Law a lunatic can also get married. The Right Honourable, Sir Dinshah Fardunji Mulla,

Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section

240: Capacity for marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in

marriage by their respective guardians.

57 Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a

woman under circumstances falling under any of the five following descriptions,--(i) against her will; (ii) without

her consent; (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt, (iv)

with her consent, when the man knows that he is not married to her and that the consent is given because she

believes that the man is another person to whom she is or believes herself to be married; or (v) with or without her

consent when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual

intercourse necessary to the offence of rape.

58 Pakistan Penal Code, 1860, section 376: Punishment for rape. (1) Whoever commits rape shall be punished with

death or imprisonment for either description for a term which shall not be less than ten years or more than twenty-

five years and shall also be liable to fine. (2) When rape is committed by two or more persons in furtherance of

common intention of all, each of such persons shall be punished with death or imprisonment for life.

26

commit an offence of rape, even if she has sexual intercourse with a

man without his consent and even against his will. So a man who has

been raped by a woman has no legal remedy. Law does not

recognize such an act as an offence. Any woman can do it with

complete impunity. She can even claim that she has been allowed

to do so by law! Now think about this, when a woman is raped by a

man, the minimum punishment that the rapist gets is 10 years.59 But

when a man is raped by another man, the minimum punishment

that the rapist gets is just 2 years.60 Mathematically speaking, we can

say that on the scale of 10, where a woman’s sexual sanctity is 10, a

man has zero sexual sanctity as against a woman and a sexual

sanctity of just 2 against another man.

So the scheme of our sexual law is that if a man has sexual

intercourse with another man, he is booked for up to 10 years in

prison under the offence of ‘unnatural offences’61 and if he has an

intercourse with a woman without her consent, he is booked for up

to death under the offence of rape.62 But if a woman has sexual

intercourse with a man without his consent, she goes scot free and if

she has sex with another woman, again she goes scot free!





27

So much for unlicensed sex against nature and without consent.

Now something about the unlicensed-sex, pure and simple.

Although Islam is very strict about singing, dancing and fornication,

state had been historically taking liberal view on it.63 However, with

the orthodox interpretation of Islam getting dominance during the

state sponsorship of Afghan Jihad against Soviet Union, illegal sex is

being seen very strongly by the orthodox scholars.64 Law is also strict

about illicit sex. It says that whoever will have sex without first getting

married can be sentenced to imprisonment for up to 5 years.65

However, there is confusion here. Law talks about two types of un-

licensed sex, fornication and adultery.66

Oxford English Dictionary 67 defines fornication as having sex with

somebody that you are not married to while the same dictionary

defines adultery as sex between a married person and somebody

who is not their husband or wife. Simply speaking fornication is

unlicensed sex between an otherwise unmarried couple while

63 Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005,, 28: Orthodox Islam forbids singing and

dancing on the grounds that it may lead to a loss of self-control and then to debauchery and fornication. The

Mughals, the Muslim rulers who controlled large parts of India between the sixteenth and eighteenth centuries did

not see entertainment this way. Dancing and singing were considered to be forms of refined culture, and patronage

of the arts was a symbol of Mughal status.

64 Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005, 64: Islam is very positive about sex, provided it

takes place within marriage. The problem is that attraction between men and women is considered so inevitable and

so uncontrollable that it will lead to chaos if it isn’t regulated. Separating the sexes is essential to prevent fornication

and maintain social order. Men and women have to live in separate worlds.



67 Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press, 8th Ed, 2010.

28

adultery is unlicensed sex between a couple at least one of whom is

married to someone else. Our criminal code defines fornication as

an offence which is committed when a man and a woman not

married to each other have sexual intercourse.68 Adultery, on the

other hand, is a crime which is committed when a person has sexual

intercourse with a woman whom he knows to be the wife of another

man.69 It is clear that our law does not restrict the crime of fornication

for an otherwise unmarried couple. The language of section 496-B70

is clear, it says:

“A man and a woman not married to each other are said

to commit fornication if they …… have sexual intercourse

…...”

Whether both or any one of these accused is married or not is not a

fact law is bothered about. If they are not married to each other,

they are covered under this law. And punishment is meant for both

the partners; subsection 2 of this provision says:

68 Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are

said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits

fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to

fine not exceeding ten thousand rupees.

69 Pakistan Penal Code, 1860, section 497: Adultery. Whoever has sexual intercourse with a person who is and who

he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man,

such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be

punished with imprisonment of either description for a term which may extend to five years, or with fine, or with

both. In such case the shall wife shall not be punishable as an abettor.


29

“Whoever commits fornication shall be punished with

imprisonment……”

So far so good. Now let’s see the provision dealing with adultery. It is

section 49771 and says:

“Whoever has sexual intercourse with a person who

is…..wife of another man…..is guilty of the offence of

adultery, and shall be punished with imprisonment…..”

For the purposes of adultery, therefore, it does not matter if the man

is married or not but woman has to be otherwise married to

someone else. This generates the confusion because the case of

unlicensed sex by a married woman has already been covered

under the provision of fornication72 , then what is the use of this

provision? There is more to come. It is clear from the plain reading of

this provision that in the offence of adultery, woman is not a criminal

and she cannot be punished. A woman is not punished in case of

rape, although that is also an unlicensed sex, but there sexual

intercourse is committed without her consent. Here however, she is

the consenting party. But still, she is not liable to be punished. Why?

This section is the original section which was enacted by the British

Raj in 1860. It is said that it was thought that Indian women had no

free-will and were practically the properties of their husbands. That’s


72 Pakistan Penal Code, section 496-B.

30

why this provision of adultery also talks about the consent of the

husband of the adulteress. It says:

“Whoever has sexual intercourse with a person who

is….wife of another man, without the consent…..of that

man….”

So conceptually speaking, it was enacted to punish a person

(Adulterer) for violating rights over the property (wife) of a person

(husband). I am not shocked because it was enacted more than a

century and a half ago. Obviously the social structure and moral

values of our society were not similar to what they are today. But

what surprises me is the fact that this section73 was deleted by the so-

called Islamic regime of General Zia by virtue of Hudood

Ordinance.74 So section 497 was deleted in the year 1979. However,

in the year 200675, it was again inserted back in the criminal code, as

it is—that is, just as it was in the year 1860. Has our legislature reached

the conclusion that contemporary Pakistani wife, who had acquired

a free will and had become an independent citizen of the country in

1979, has once again become a property lacking any free will in

2006?

73 Pakistan Penal Code, section 497.

74 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 19.

75 Protection of Women (Criminal Laws Amendment) Act, 2006.

31

And by virtue of the same law76 which re-inserted the old adultery

provision, offence of fornication77 was added. Now if a couple is

charged for illicit sex where the woman is otherwise married, and

they are booked under the offence of adultery, it will make the man

liable for a prison sentence for up to 5 years while the woman will go

scot free. The man will certainly protest as to why should the woman

also not get punished as she was party in the crime as much as he

was, and will ask the police, or the court, to book them under the

provision of fornication78 which will also be equally applicable and

under which both the man and the woman will be liable for a prison

sentence of up to 5 years. At this stage the woman will protest that

when a provision of law, which is equally applicable in the case and

in which her liberty is not hindered, is available, why should that

provision be not applied to her?

I have no idea what the court, in such an eventuality will decide,

and on what grounds? Certainly it will be confused. But more

confusing thing at the moment is how can a law, a properly

legislated law79, which is drafted by the specialized draftsmen of law

76 Protection of Women (Criminal Laws Amendment) Act, 2006.



79 Constitution of Islamic Republic of Pakistan, 1973, Article 70: Introduction and Passing of Bills. (1) A Bill with

respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the

House in which it originated, be transmitted to the other House; and if the Bill is passed without amendment by the

other House also, it shall be presented to the President for assent. (2) If a Bill transmitted to a House under clause (1)

is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill

with those amendments it shall be presented to the President for assent. (3) If a Bill transmitted to a House under

clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under

32

ministry, is then presented before the National Assembly of 332

elected representatives80, who discuss and debate over it for days

and weeks and voted upon, is then sent to the upper house, the

Senate, consisting of 104 elected representatives 81 as well as

technocrats, is again discussed and debated for days and weeks,

and only then passed and sent for assent of the President, make

such blunders?

Much of this mess that I have created above could have been

cleaned up if, and only if, offence of Adultery82 is simply removed

from the statute book. This will leave an open field to the offence of

fornication83 to cover all cases of illicit sex, without any over-lappings

and conflicts. To be honest, even otherwise, the law of fornication

has been enacted quite progressively. In fact it has been enacted in

a much more modern way than most of our criminal laws. Its

procedure 84 categorically takes away all powers of arrest and

investigation from police. So now, since the year 2006 of our lord,

when the Protection of Women Act was passed, if a complaint

clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House

in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members

present and voting in the joint sitting it shall be presented to the President for assent. (4) In this Article and the

succeeding provisions of the Constitution, “Federal Legislative List” means the Federal Legislative List in the

Fourth Schedule.

80 Constitution of Islamic Republic of Pakistan, 1973, Article 51.

81 Constitution of Islamic Republic of Pakistan, 1973, Article 59.


83 Pakistan Penal Code, section 496-B.

84 Criminal Procedure Code, 1898, section 203-C.

33

regarding commission of fornication is lodged with the police, it

cannot do anything, unless authorized by a court of law. 85 The law

requires that keeping in view the dignity of man and privacy of

home,86 which is the fundamental right of everyone, court will not

even entertain the complaint 87 regarding fornication unless such

complainant and two-eye witnesses of the offence appear in the

court in person and swear on oath that they saw the act of

fornication with their own eyes.88 If the court will find their statements

reliable, it will issue summons to the accused to appear and defend

their case—no police, no arrest.89 However, if the Court does not find

the initial statements of the complainant and his witnesses truthful, it

will dismiss the Complaint straight away.90 Not only this, but if the

dismissing Court will find that the Complainant and the witnesses

were knowingly bringing false charges of fornication, it can forthwith

convict such Complainant and all his/her witnesses without any

85 Criminal Procedure Code, 1898, Schedule II, section 496-B, Column 3.

86 Constitution of Islamic Republic of Pakistan, 1973, Article 14: Inviolability of dignity of man, etc. (1) The

dignity of man and, subject to law, the privacy of home, shall be inviolable.

87 Criminal Procedure Code, 1898, section 203-C (1): No Court shall take cognizance of an offence under section

496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction.

88 Criminal Procedure Code, 1898, section 203-C (2):The Presiding Officer of a Court taking cognizance of an

offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication.

89 Criminal Procedure Code, 1898, section 203-C (4): If in the opinion of the Presiding Officer of a Court, there is

sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused.

90 Criminal Procedure Code, 1898, section 203-C (5): The Presiding Officer of a Court before whom a complaint is

made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of

the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he

shall record his reasons for so doing.

34

other proof and can send them to prison for up to 5 years.91 This is a

very effective tool to curb the misuse of the law and checking the

coming up of false charges of fornication for settling private scores

and defaming others.

A move for similar amendment in the blasphemy law,92 prescribing

up to death penalty for defiling the sacred name of the Holy Prophet

Muhammad (Peace be upon him), a move which was meant to

discourage the rising trend of misusing this provision to settle personal

scores,93 however, was rejected by the Council of Islamic Ideology.94

Council of Islamic Ideology is a Constitutional body,95 which is not

91 Pakistan Penal Code, 1860, section 496-C: Punishment for false accusation of fornication. Whoever brings or

levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a

term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees:

Provided that a Presiding Officer of a Court dismissing a complaint under section 203-C of the Code of Criminal

Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this

section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence.

92 Pakistan Penal Code, 1860, section 295-C: Use of derogatory remarks etc., in respect of the Holy Prophet.

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or

insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammd (peace be upon him) shall

be punished with death, or imprisonment for life, and shall also be liable to fine.

93 Gleanings, Into the Fiery Furnace: Christian Couple in Pakistan Burned for ‘Blasphemy’, November 6th, 2014,

www.christianitytoday.com/gleanings/2014/november/into-fiery-furnace-christians-pakistan-burned-

blasphemy.html?paging=off, accessed on 7th March, 2015.

94 The Express Tribune, September 20, 2013, Advice to Legislature: No Need to Amend Blasphemy Laws, says CII,

tribune.com.pk/story/606884/advice-to-legislature-no-need-to-amend-blasphemy-law-cii/, accessed on 7th March,

2015.

95 Constitution of Islamic Republic of Pakistan, 1973, Article 228: Composition, etc., of Islamic Council. (1) There

shall be constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this

Part referred to as the Islamic Council. (2) The Islamic Council shall consist of such members, being not less than

eight and not more than twenty as the President may appoint from amongst persons having knowledge of the

principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic,

political, legal or administrative problems of Pakistan.

http://www.christianitytoday.com/gleanings/2014/november/into-fiery-furnace-christians-pakistan-burned-blasphemy.html?paging=off

http://www.christianitytoday.com/gleanings/2014/november/into-fiery-furnace-christians-pakistan-burned-blasphemy.html?paging=off

http://www.tribune.com.pk/story/606884/advice-to-legislature-no-need-to-amend-blasphemy-law-cii/

35

only the ultimate arbiter of “Islamic-ness” of a proposed law96 but is

also responsible to act as the “Islamic mentor” of the legislatures.97

Economics of Marriage:

Problems of sex-with-men, sex-with-animals and sex-against-the-

order-of-nature are not the only ‘sexual problems’ of our legal

system. In the year 2012 a new section was added in the criminal

code 98 which has criminalized the act of marriage with Quran.

Haven’t we already seen that law criminalizes unnatural marriage?

Not actually. Technically speaking, what we saw as crime is

“unnatural sex”, not “unnatural marriage”. Thus our law does not

criminalize any kind of marriage, not even a marriage with the ‘word

of God’; until the year 2012. But the question is why would anyone

marry the Holy Book? More than religion, this has to do with the

economics; the economics of marriage.

Marrying their daughters and sisters with the Holy Book is a tradition

followed in many feudal families of Pakistan.99 More than marriage,

96 Constitution of Islamic Republic of Pakistan, 1973, Article 229: Reference by Majlis-e-Shoora (Parliament),

etc., to Islamic Council. The President or the Governor of a Province may, or if two-fifths of its total membership

so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to

whether a proposed law is or is not repugnant to the Injunctions of Islam.

97 Constitution of Islamic Republic of Pakistan, 1973, Article 230: Functions of the Islamic Council. (1) The

functions of the Islamic Council shall be: (b) to advise a House, a Provincial Assembly, the President or a Governor

on any question referred to the Council as to whether proposed law is or is not repugnant to the Injunctions of Islam.


99 Daily Times, March, 13, 2007,” Prominent families in Sindh and marriage to the Holy Quran.”

36

this is a holy vow on the Holy Quran, forcefully extracted from the

poor bride, of not to marry any one in her life time. Families enforce

such a “marriage” on their girls in order to check seepage of their

properties through inheritance, to the lineage of their future son-in-

laws. Lineage and property are closely linked in our world view.

Despite of the fact that Holy Christ had no father and our Holy

Prophet (pbuh) had no male descendant, we insist that lineage runs

through males; so inherited property should be distributed among

sons only. But our faith poses challenge to our world view. Daughters

also inherit property according to Islamic principles, to defeat which,

we devised a tool—Marriage with Quran. This marriage ensures that

the bride dies issue-less and thus whatever she inherits from her

father, is ultimately inherited back by her brothers and their children.

Finally, law made anyone facilitating such a marriage punishable

with up to 7 years of imprisonment, 100 a counter tool which is

focused more on economic rights of women than restoration of

Islamic ideals.

Devising of ways and means to swindle devolution of inheritance on

daughters is an old age tradition, dowry being its one manifestation.

Use of dowry to enable the newlywed couple start a household is

100 Pakistan Penal Code, 1860, section 498-C: Prohibition of marriage with the Holy Quran. Whoever compels or

arranges or facilitates the marriage of woman with the Holy Quran shall be punished with imprisonment of either

description which may extend to seven years which shall not be less than three years and shall be liable to fine of

five hundred thousand rupees. Explanation. Oath by a woman on Holy Quran to remain un-married for the rest of

her life or, not to claim her share of inheritance shall be deemed to be marriage with the Holy Quran.

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understandable in the societies where marriages take place in early

age. 101 However, this is not the only established use of this custom.

Many a times, dowry functions as a pre-mortem inheritance to the

bride.102 This implies that in our culture, in order to combine the

benefits of keeping the property within the lineage and of marrying

off daughters, people give heavy dowries to their daughters in lieu of

their future inheritance share. While doing so nature of inheritance

and that of inheritor is kept in mind. Since marriage has made

woman a “movable” member of the family, she only gets movable

property; money, furniture, jewelry, etc, not land.103

Incidentally such a mode of restricting inheritance in certain

communities has become an unbearable menace for many

communities. The custom of giving dowry to daughters crossed all

reasonable limits, especially for the class which would not have

much to offer the bride in inheritance. Half a century ago

uncontrolled limits of dowry became such a social evil that law had

to be passed to curtail it. This law passed in the year 1976 provided a

prison sentence of up to 6 months.104 This punishment is meant for

101 Encyclopedia Britannica, Dowry, www.britannica.com/EBchecked/topic/170540/dowry, accessed on 2nd March,

2015.

102 Jack Goody, Stanely Jeyaraja Tambiah, Bridewealth and Dowry, Cambridge University Press, 1973, 1.

103 Veena Talwar Oldenburg, Dowry Murder; The Imperial Origins of a Cultural Crime, Oxford University Press,

2002, 20.

104 Dowry and Bridal Gifts (Restriction) Act, 1976, section 9: Penalty and procedure.- (1) Whoever, contravenes,

or fails to comply with, any provision of this Act or the rules made thereunder, shall be punishable with

imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten

thousand rupees, or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the

provisions of this Act shall be forfeited to the Federal Government to be utilized for the marriage of poor girls in

http://www.britannica.com/EBchecked/topic/170540/dowry

38

anyone who will give or receive dowry worth more than 5,000

rupees.105 That’s true, the law says that dowry to a bride will not

exceed an amount which is something like US dollars 50. Just to keep

things in perspective, a locally made bi-cycle today costs more than

that. The rampant violations of this law are a matter of ceremony.

During the entire six months of winter season, thousands of marriages

take place in Pakistan, most of which are celebrated with fan fare.

This includes open, many a times publicly boasted, transfers of

dowries worth hundreds of thousands, if not millions of rupees. But

since a purchase receipt does not mention if it was issued against

dowry purchase, nor people maintain accounts books of dowry,

despite being an open secret, it is difficult to find records of dowries.

However, it becomes an interesting matter when during or after

divorce, a woman files case in the court for recovery of dowry

articles. Literally in every case, the woman and her family members such a way as may be prescribed by rules made under this Act: Provided that if both the parents of a party to the

marriage contravene, or fail to comply with, any provision of this Act or the rules made thereunder, action under this

section shall be taken only against the father: Provided further that if the parent who contravenes, or fails to comply

with, any provisions of this Act or the rules made thereunder, is a female, shall be punishable with fine only. (2) An

offence punishable under this Act shall be triable only by a Family Court established under the West Pakistan

Family Courts Act, 1964 (W.P. Act No. XXXV of 1964). (3) No Family Court shall take cognizance of an offence

punishable under this Act except upon a complaint in writing made by, or under the authority of, the Deputy

Commissioner within nine months from the date of nikah, and if rukhsati takes place some time after nikah, from the

date of such rukhsati. (4) While trying an offence punishable under this Act, a Family Court shall follow the

procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial off offences by

Magistrates.

105 Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. -

(1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value

of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.

Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the

dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be

given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such

rukhsati.

39

file affidavits and swear on oath in the witness box that they gave

dowry worth millions of rupees. The courts, instead of punishing them

with 6 months’ imprisonment, pass orders for recovery of the dowry

(or part of it, depending on the evidence). In one such case, Lahore

High Court while repelling the argument of the counsel for the groom

that bride, which was demanding dowry worth hundreds of

thousands could not have given it because of the legal restriction,

held that “in spite of the restriction imposed in section 3106 [of the

Dowry and Bridal Gifts (Restriction) Act, 1976], a bride is the owner of

the dowry and wari [gifts presented to bride from groom’s side]

articles irrespective of their values and she is entitled to retain it

forever and to claim its return or the value thereof, if the same is kept

back by her husband or any other person.”107 This is despite the fact

that law calls for confiscation of any dowry beyond the legal limit.108

Neither anyone was tried for violating the Dowry and Bridal Gifts

(Restriction) Act, 1976 from the bride’s side nor from the groom’s

side; neither before this judgment nor afterwards; just like thousands

of such cases that are decided every month. To bring the open,

public and blatant violations of this law even more apparent,

106Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. - (1)

Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of

the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.

Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the

dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be

given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such

rukhsati.

107 Gul Sher Vs. Mst. Maryam Sultana, 2011 YLR 1000, para-5.

108 Dowry and Bridal Gifts (Restriction) Act, 1976, section 9.

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another of its provisions restricts that the total expenditure on a

marriage ceremony shall not exceed Rs. 2,500; which is equal to US

dollars 25. 109 Traditionally, there are at least three marriage

functions110 which basically include dinner for the guests. The number

of guests normally invited in marriages can be assessed from the

capacity of the marriage halls, which, on average, caters for 500

guests.111 In such like halls, the normal per head meal charges for a

marriage guests is Rs. 2,000.112 This means that if this law is followed,

even the bride and groom cannot be served dinner on their

wedding ceremony. I am not sure if the ceremonial and constant

violations of this law should be more shocking or the unrealistic

demands of it. But well, none is there; no one is shocked.

109 Dowry and Bridal Gifts (Restriction) Act, 1976, section 6. Expenditure on marriage. - The total expenditure on

a marriage, excluding the value of dowry, bridal gifts and presents, but including the expenses on mehndi, baarat

and valima, incurred by or on behalf of either party to the marriage shall not exceed two thousand and five hundred

rupees.

110 Mehndi, Baraat and Walima.

111 www.hotelandhalls.com/shalimar-marriage-hall-wah-cantt/, accessed on 2nd of March, 2015.

112 Web address: he.com.pk/featured-posts/best-marriage-banquet-halls-in-lahore-for-wedding-rates-menu-/2,

accessed on 2nd of March, 2015.

http://www.hotelandhalls.com/shalimar-marriage-hall-wah-cantt/

Passionate Legalities of Marriage

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