Assignment no. 4

Presented to

MADAM SAADIA AKBAR Esq

Title: THE PRO-WOMEN LAWS IN PAKISTAN SINCE1947

Students:

1. Dr. Sahibzada Saud-ul-HassanKhan Roll no. 3

2. Faiza MuneerRoll no. 14

3. Munazza FiazRoll no. 19

4. Faizan KhanRoll no. 23

I st Semester (Replica)M.Sc (Gender Studies)

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Department of Gender StudiesUniversity of the Punjab, Lahore

THE PRO-WOMEN LAWS IN PAKISTAN SINCE1947

Contents

Definition of Law3

Laws in Pakistan 3

Why did we choose this topic4

What do we mean by pro-women laws 5

Objects of pro-women laws5

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How these laws are relevant to women economicempowerment 5

Utility and significance of pro-women laws6

Pro-women laws in historical perspective7

Advantages of pro-women laws10

Disadvantages of pro-women laws11

Enforcement of pro-women laws12

Conclusion13

Bibliography 15

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THE PRO-WOMEN LAWS IN PAKISTAN SINCE1947

Definition of Law:

The term “Law” is very difficult to define as thelaw is enacted to control the wheel of society ina specific manner. Different schools of law havedefined law from different angles because law isa dependent variable as it is changed by thechanges in society. Thurman Arnold, Lord Lloyd,Morris, Blackstone, Austin, Salmond and manyother jurists defined law with differentobservations. Some define it on the basis of itsnature, some define it from its sources, somefrom the purpose of law etc. So, there is lack ofdefinition which must cover all aspects of law.(Mahajan p.26-45) We may conclude that law is ,simply, a system of rules to regulate societalbehavior and its relation with commandingauthority.

Laws in Pakistan:

The Pakistani laws provide full protection to allcitizens of Pakistan irrespective of any kind ofdiscrimination. However, keeping in view thesocial norms and general attitudes of the variouscultures, groups, and people , the most superiorand fundamental enactment of the country i.eConstitution of the Islamic Republic of Pakistan,

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1973, laid down some special principles of policyfor the development of redressed classesspecially minorities and women etc. OurConstitution states that “all citizens are equal beforelaw and are entitled to equal protection of law.”(Constitution, 1973, Art. 25) It further states that“there shall be no discrimination on the basis of sex alone.”(ibid) The same constitution assures theprotection of women on priority basis “nothing inthis Article shall prevent the State from making any specialprovision for the protection of women and children.” (ibid)A careful study of these three statements of theconstitution explains the difference betweenequality and equity in gender sense. The laststatement gives us the idea of progress anddevelopment through bringing the women into themainstreaming of the country.

The laws in Pakistan may be classified into 4categories:

1. General laws (like Constitution, EvidenceAct, Limitation Act etc.)

2. Criminal laws (Cr.P.C, P.P.C, Anti-TerrorismAct etc.)

3. Civil laws (C.P.C etc.)4. Family laws (MFL Ord., WPFCA, WPA etc.)

These laws are applied to all citizens (both menand women) of Pakistan. There are some specialsections in these Pakistani laws which arerelated to women and may be called as pro-womenlaws.

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A number of reforms are made in family laws butunfortunately these reforms are related to Muslimfamily laws and the family laws of Hindus,Christians and other minorities are stilluntouched and ther is clear violation of humanrights in those laws. The Christian laws(enforced in Pakistan) are about 150 years old inwhich the right of divorce for a PakistaniChristian woman is very complicated. Their suitsare to be instituted in civil courts only(Christian Divorce Act, 1874, Section 52 ). Similarly,the right of divorce for a Hindu, Jain, or Jewishwomen is continuously sabotaged due to the lackof a common code of law in Pakistan. RecentlySindh High Court clarified that even Hindu womenof Pakistan may also file suit under FamilyCourts Act, 1964 (2005 PLD 334 Kar).

Why did we choose this topic:

It is important to mention here that this topicis very interesting in the sphere of economicempowerment of women because through this womencan get awareness of their legal rights as wellas of Lego-social justice. They are to aware oftheir social status which is required andprotected by law. In this way, women can getadvantages of such laws and secure their rightsin property, inheritance, employment, educationand financing etc. Our main aim is to make our

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class mates, friends and cousins etc. aware ofthese things.

What do we mean by pro-women laws:

By Pro-women law we do not mean the laws discriminating with men. These are not laws different from common codes, regulations or any form of law because such a law will be a clear violation of fundamental rights of opposite sex. But, by pro-women law we mean such measures that facilitate the women to come into mainstreaming of national life and such facilitation is supported by regulating authority and courts. Such laws are neither anti-man nor anti-religion and not discriminating, however it may be that they are misused many times especially in monetary matters.

Objects of pro-women laws:

The main object of pro-women laws is justice.Justice has two different levels of operation:distributive justice and corrective justice.Distributive justice ensures a fair division ofsocial benefits and burdens among the bothgenders of Pakistani society. It secures abalance or equilibrium. A balance is disturbedwhen a female is deprived of her right ofinheritance in a property and her share isusurped by male share holders. So, distributivejustice is violated. At this point the correctivejustice comes into action and corrects thedisequilibrium or imbalance by forcing the

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usurpers to restore female’s share to her. Inthis sense, the function of the statutory body isdistributive justice and the function of thecourts is to apply justice in its correctivesense.

How these laws are relevant to women economicempowerment:

The main purpose of pro-women laws is to providerelief and protection to women against misuse andabuse of law and to prevent their exploitation,and their aim is to promote social justice anderadicate social evils (Protection of Women Act,2006). Social justice is guarantee of economicequilibrium. When the women will gain benefits ofsocial justice, automatically they will enjoy theeconomic benefits and it will cause economicempowerment for them. Scientifically, the sourcesof economic empowerment are education andlegislation. Today, a number of policies havebeen launched for women education and the femaleliteracy rate is higher than males. These rightsare protected by pro-women laws. It is true thatnot whole society has been changed but a greatchange has been occurred in comparison with thesituation prevailed in 1947. These laws initiatedawareness about all kinds of women rights amongpeople (both male and female).

A number of laws, rules and policies (like PunjabWomen Empowerment Package, 2012 etc.) facilitatewomen to continue their services and jobs. These

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laws and policies also encourage illiterate womento come into professional life so make themenable to for their welfare.

The participation of women in judiciary, medicalline, teaching and other fields of life isassurance of their economic empowerment.Protecting women share in inherited property isalso a source of their empowerment. A woman,either literate or illiterate, may use her shareas per her own wishes and free consent. She mayget her property mortgage, lease, sell or rentand can get economic benefits from that.Similarly, the special loans for women on easyterms and conditions also empower themeconomically; however Section 56 of C.P.C is mainhindrance in achieving such loans.

Efforts are also made to empower women througheducation and media but in a conservative societylike of South Asia women themselves are not readyto give up all old traditions of theirsubordination to male. A number of women feeleasy to live their lives in the same old scenarioand they do not want to bear the sufferings oflabour. So, they depend upon males. In thiscontext the women are themselves responsible andblame cannot be leveled upon governments,judiciary or males.

Utility and significance of pro-women laws:

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Pro-women laws have both theoretical andpractical values. Theoretically, these laws teachus about the psychy of the people and theirexisting behavior towards women. These laws alsoinform us of social taboos prevailing throughoutsociety and how to control them by way ofsanction or penalty. The logical analysis of pro-women legal concepts sharpens the logicaltechnique of lawyers, intellectuals, andresearchers of gender studies. When these lawsare enforced, their practical phase starts.Through the writ of the government, these lawstake their way into the heart of society. Peoplebecame afraid of violating these laws. It is truethat not all people abide by all laws but it iscourts’ and administrative authority’s duty toimplement these laws. For example, Section 10 ofthe Family Courts Act, 1964 provides a chance tospouse to make pre-trail reconciliation. For 38years it remained the practice of male not toattend court personally to avoid this chance sothat divorce may be delayed. Due to this lacuna,female had to wait for divorce for many years. In2002, an amendment was made in law and the trailcourt was made bound to pass divorce-decree infavour of wife if she refuses to makereconciliation.(The Family Courts (Amend.) Ord, 2002).Acquaintance with Pro-women laws enlightens peopleand helps them in adjusting themselves in achanging world. These laws make them sure that

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gender discrimination is inhuman, illogical andillegal.

Pro-women laws in historical perspective:

As we are concerned post-1947 period, so we shalldiscuss those pro-women laws which are enactedafter partition.

Before partition, there were a number of lawsrelated to family and non family matters whicheffected women in positive or negative sense. Forexample, Code of Criminal Procedure, 1898,( herein after Cr.P.C) provided full protectionto women and zenana honour during search (Cr.P.C,Sections. 48, 52, 102), and also provided concessionto women in suspension or remittance of sentence(Cr.P.C, Section 401). Similarly, section 56 of Codeof Civil Procedure, 1908,(herein after C.P.C)abstains legal authorities to arrest or detent awoman in execution of a decree for the payment ofmoney. Another section, 132 of C.P.C also exemptwomen from forced appearance in the court. Thissection applies the prevailing social norms andcustoms in the civil procedure. Such laws areadapted in Pakistan to the very letter.Similarly, during British period, according toMuslim Personal Law Application Act, 1937, womenwere not awarded share in inherited agriculturallands which was clear cut violation of Quranicinjunctions.

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After independence, a crucial step was takenforthwith to change the laws in favour of women.In 1948, the women were also given right ofinheritance in agricultural lands too, a rightwhich was usurp in the Act of 1937. It isinteresting to know that in the secular state ofIndia the Muslim women are still deprived of thisright. In 1951, this Act was further amended andits scope was widened in all other matters likeguardianship, legitimacy, trust etc. In 1956, acommission was set up to file its report on thediscrimination with women. In light of therecommendations of the report of this commission,Claims for Maintainance Ordinance 1959 waspromulgated which facilitated women to recovertheir expenditures from their husbands.

In 1961, Muslim Family Law Ord. was promulgatedwhich was highly criticized by the orthodoxsection of Pakistani society, however, it waswelcomed by general public. This Ord. made theprocess of Nikah and Talaq easy and favourablefor the women. The polygamy was also conditionedwith certain terms. The registration of marriageand divorce was made compulsory. The thricedivorce at-a-time was strictly accorded with theinjunctions of Quran. In the same year, the WestPakistan Family Law Rules were framed out tosolve the matrimonial problems at locality level.Its purpose was to discourage unnecessarylitigation in the courts. According to theserules, a wife may be delegated with the power to

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divorce her husband (column 18 of Nikah Namah) and ahusband may be restrained from divorcing his wifeconditionally. In 1964, West Pakistan Family LawCourts Act was passed to regulate the familycases in family courts. Its main object wasexpeditious settlement and disposal of disputesrelating to marriage and family affairs (2003 CLC1339 Lah). This Act provided economic empowermentto the women as it sanctioned the compulsoryappointment of female judges in family courts(Section 3). This Act also empowered women to filetheir family suits before the family courts oftheir own residential city, so they werefacilitated to approach the competent forum oflaw. In 1967, West Pakistan Dowry Act was passedthrough which the display of dowry wasprohibited. This eased the poor people fromsuffering of heavy loans for show shaw at the timeof marriages. These laws were further amendedtime by time to be adjustable with the prevailingand changing circumstances.

In 1976, the Dowry and Bridal Gifts Act waspassed which made some restrictions on extraexpenditures like dowry, barat entertainment andsuch things.

In 1979, a special Women Division was set up inCabinet Division under the direct supervision ofGeneral Muhammad Zia-ul-Haq for the promotion ofwomen in the all spheres of life.(Patel, 1979, p.xxix) In the same year Hudood Ordinances werelaunched and those of Zina and Qazaf were

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specially related to women. A majority ofPakistani people believed those laws as violativeto the human rights of women, but in fact theselaws were also pro-women in essence. It iscustomary in Pakistan to blame a woman havingillicit relations with some person other than herhusband. Hudood Ord. required such allegers tobring at least 4 witnesses of Tazkia tush shahoodcriteria to prove such allegation (Offence of Zina(Enforcement of Hudood) Ordinance, 1979,Section 8, 9, 10,11), otherwise the alleger had to face sentence ofQazaf (Offence of Qazaf (Enforcement of Hudood)Ordinance, 1979,Section 3,4,5,6). It is pertinent tonote that during the whole period of enforcementof Hudood Laws, no woman was punished for theoffence of Zina.

During President Musharraf’s era, certain changeswere made in certain laws to facilitate women. InSection 497 of Cr.P.C, women were given specialconcession of Bail (before or after arrest). In2000, a National Commission on the Status ofWomen Ord. was promulgated. In 2004, a CriminalLaw (Amnd.) Act was passed in which furtheramendments were also made in criminal codes todiscourage honour killing, badal marriages,illegal marriages etc. In 2006, Protection ofWomen (Criminal Laws Amnd.) Act was passed. ThisAct is milestone in the advancement of women ofPakistan. By this law a number of sections ofHudood laws were repealed which were exploited inpersonal enmity. Section 365-B was insertedagainst the abduction of women. During the sameera, the family courts were made bound, through

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an amendment to declare divorce compulsorily infavour of a wife if she refuses to reconcile withher husband. However, the return of received partof dower to the husband was also made compulsoryto do justice.

Recently, in this connection, the National Policyfor Development and Empowerment of Women,2012 andPunjab government’s package for empowerment ofwomen, 2013 are very important in which specialfacilities are provided for female students andworking women, like establishment of day carecenters, large scale appointment of femaleteachers in primary schools, special leave in thelast months of pregnancy etc. Advancement is madewhen Working Women’s Harassment Laws wereenforced. This law ensures women to keep theireconomic activities on in a peaceful and safeatmosphere.

It is very interesting to note that most of the pro-women lawswere enacted or promulgated during military regimes whilethe democratic governments did little in this connection.

Advantages of pro-women laws:

Pro-women laws in Pakistan have followingadvantages:

1.They provide uniformity and certainty tothe administration of justiceirrespective of gender discrimination.These laws have to apply in all casesand there is no distinction on the basis

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of sex, class, religion, race, languageand ethnicity. (Constitution, 1973,Art. 4 &25)

2.They avoid the dangers of arbitrary,biased and dishonest decisions. On oneside it provide full opportunity to wifeto get divorce at once by refusingreconciliation, on the other side itprovide full protection to the husbandto take back dower amount immediately.( FCA,1964 ,Section 10, and 2007 PLD 344 Lah).

3.The fixed principles of these lawsprotect the administration of justicefrom the errors of individual judgment.In most cases, the law on the subject isclear and judges cannot substitute theirpersonal opinion for the laws of thecountry. I have personally observed thatsometimes a female judge also passesverbal remarks in favour of a husbandbut written divorce decree/judgment infavour of the wife because law is clearon this matter.

4.The pro-women laws are more reliablethan individual judgments. Human mind isfallible and judges, being human, are noexception. In some cases the superiorcourts of Pakistan also deferred theright of maintenance of wife if she isnot agreeing to restitute conjugalrights of her husband.(2002 CLC1450 Lah)The same is the case of a daughter (2006

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CLC 875 Lah). Here the judges committederrors. The wisdom of the legislaturewhich represents the wisdom of thepeople is a safer and more reliablemeans of protection than the momentaryfancy of the individual judge (Mahajan,1992, p. 54-55). When a judge errors, hisjudgment is revised with certainamendments and settings by the appellatecourt.

Disadvantages of pro-women laws:

In Pakistan, pro-women laws have sometimesdisadvantages for the people:

1.These are not flexible but rigid. Likeall other laws, these laws are notusually changed to adjust it to theneeds of the people. Sometimes theprocedural law is too lengthy. Forexample, the cases of dowry took manyyears to be decided on merits. So, thefemales avoid taking their dowry backinstead of pursuing their case.

2.After the lapse of some time, our pro-women laws become conservative and donot fulfill the demands of justice.For example, the share of the femalein inheritance is set as per MuslimPersonal Law. This share is not

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enhanced despite the certain changesin Personal Laws. Similarly, the womenmust be delegated power of divorcelike that of man so that unnecessarylitigation be avoided.

3.The pro-women laws are formal innature. More emphasis is put on theform of law than its substance. A lotof time is wasted in raising technicalobjections of law which has nothing todo with the merit of the case indispute. The insistence on theformalities of law causes injustice inmany cases and an innocent may sufferwhile a clever may get benefit. (1999MLD 1008 Lah) It is now common practiceof local government authorities todelay issuance of Talaq Certificate towomen just for illegal gratification.In some cases, it took 2 or 3 years(instead of 3 months) to issue thecertificate.

4.Another disadvantage of pro-women lawsin Pakistan is their complexity.Whatever effort be made to make lawsimple, it is very hard to adjust itwith the all cases related to thatlaw. That is why that, like all otherlaws, pro-women laws are also complexfrom different aspects. At locality(Union Council) level, the matters are

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made more complex due to the lack oflegal knowledge of the localauthorities.

Each case is decided on the basis of questions oflaw and question of facts. The facts are madecomplicated by the parties or counsels of theparties. So, the complexities occur in theapplication of law.

Enforcement of pro-women laws:

It is up to women themselves that how pro-womenlaws are imposed. Present judicial systemprovides them minimum 5 ways of enforcement oftheir legal rights under any law, especially prowomen law.

1.The first way is restitution of the thingsconcerned. This way is mostly related withinherited property which is often usurped bymale share holders. This is also related tothe matrimonial relations.

2.The second way is specific enforcement oflaw. In this way, women can get their rightthrough writ petition in a High Court orSupreme Court. The employment right orelectoral right or right of admission in aneducational institution may be enforced bythis way.

3.Another way is award of damages. If women aredeprived of her legal and constitutional

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right and the situation changes during legalcourse or due to non awareness ofinfringement of that right, the aggrievedwoman can be awarded damages.

4.The injunction is another way of performance.This method is used in harassment matters.

5.The penalty or penal sentence is veryforceful way of prohibition of crimes againstwomen. In all criminal matters this method isrecognized by all societies and countries.

However, these methods are useful, just when awoman herself takes steps of theirimplementation. If she ignores the wrongscommitted with her then there will be noenforcement of pro-women law.

Conclusion:

We conclude that the most of the laws in Pakistanare not discriminatory against any gender but ourlaws provide special facilities to Pakistaniwomen to bring them into the mainstreaming ofnational life. Now, it is up to women themselvesthat how much they utilize these laws. A mainhurdle to implement these laws is the orthodoxattitude of the society itself generally and ofPakistani women specially. For example,minorities of Pakistan oppose any reformation intheir personal and family laws and the illiteratefraction of them consider it Islamization of

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minorities in Pakistan. The same was, and stillis, the case of reformation in Muslim Family lawswhen it was declared un-islamic apostasy byorthodox Muslims. However, history takes itscourse positively. Changes also took place inPakistan under the influence of world developmentand progress.

It is also important to add here that whencircumstances/facts change, the law changes itsshape in accordance with facts of each case. Thisis the problem of question of law and question offact. A lawyer arguing in favour of right ofdivorce for a woman argues against it whenpleading in another case for the cause of someother party. This is the way in which laws aremisused and abused. That is why clever personsmay easily save their skins from the clutches oflaw and the justice is neglected or delayed. Inthese circumstances, laws cannot protect therights of a person (either man or woman), becauselaws are man-made rules which have muchelasticity to be dealt with law cases ofdifferent nature.

We shall add here that the torture or use offorce is also not a way of handling the mattersin true sense. We cannot change society in pro-women shape by torturing male or by beating themby jooti. Such argument is completelyunscientific and illiterate. Societies are notchanged in this way. No such way was implemented

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in the west or other developed countries. Theonly way is twofold attempt of change i.eeducation and legislation. Through education wemay change the mind of the people and throughlegislation we can secure the changing scenario.However, change will never occur at once but itwill take its due course of time and space. Herestarts the line of philosophy which isrationalized by logic and reason.

In a limited assignment, we content with suchdiscussion.

Bibliography

Primary Sources:

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(Note: The following enactments are included inthe Code of Pakistan Law, 2014, Islamabad,Government Press)

1.Constitution of the Islamic Republic of

Pakistan, 1973,

2.Code of Civil Procedure, 1908

3.Code of Criminal Procedure, 1898

4.Guardians and Wards Act, 1890

5.Child Marriage Restraint Act, 1929

6.Muslim Personal Law Application Act,

1937

7.Dissolution of Muslim Marriages Act,

1939

8.Muslim Family Laws Ordinance, 1961

9.(West Pakistan) Muslim Personal Law

(Shariat) Application Act, 1962

10. (West Pakistan) Family Courts Act,

1964

11. Offence of Zina (Enforcement of

Hudood) Ordinance, 1979

12. Qanun-e-Shahadat Ord, 1984

13. Enforcement of Sharia Act, 1991

14. Dowry and Bridal Gifts (Restriction)

Act, 1976

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15. Prohibition (Enforcement of Hudood)

Order, 1979

16. Offence of Qazf (Enforcement of

Hudood) Order, 1979

17. Execution of Punishment of Whipping

Ordinance, 1979 (many provisions of

this Ordinance were repealed later on

so as to limit the number of crimes to

which it is applicable)

18. Christian Divorce Act, 1874

19. Punjab Women Empowerment Package,

2012

20. The Family Courts (Amend.) Ord,

2002.

21. National Commission on the Status of

Women Ord, 2000.

22. National Policy for the Empowerment

of Women,2012

Secondary Sources:

1.Salmond , J.S, Jurisprudence, 1912, London,

Ms Brewery.

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2.Mahajan,V.D, Jurisprudence, 1992, Lahore,

Shan Book Corporation.

3.Patel,Rashida, Women and Law in Pakistan,

1979, Karachi, Faiza Publishers.

4.2005 PLD 334 Kar

5.2003 CLC 1339 Lah

6.2007 PLD 344 Lah

7.2002 CLC1450 Lah

8.2006 CLC 875 Lah

9.1999 MLD 1008 Lah.

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