APPRAISAL OF CRIMINAL LAWS CONCERNING WOMEN
APPRAISAL OF CRIMINAL LAWS CONCERNING WOMEN
By Ms. Yasmin Saigol, Advocate, Lahore
The law, be it Constitutional, Civil or Criminal, recognizes women as special subject and provides safeguards and exemptions for the protection and promotion of the interests of women. The statute seldom deprives women of their rights but women are, nevertheless, victims of exploitation at the hands of a male dominated society. In recognition of this reality, special laws have been framed for the protection of women, which inculde the following laws:
IN THE PAKISTAN PENAL CODE, 1860, WHICH DEFINES ALL THE OFFENCES AND IS THE SUBSTANTIVE LAW OF PAKISTAN:
(1) Causing the miscarriage of a woman with child, i.e. a pregnant woman, without her consent is an offence punishable with life imprisonment which may extend to 10 years.
(2) Any act done with intent to prevent a child being born alive or to cause it to die after birth is an offence punishable with imprisonment of 10 years.
(3) An assault on or use of criminal force to a woman with intention to outrage her modesty is punishable with imprisonment for two years.
(4) A similar assault when any woman is stripped off her clothing and exposed to public view is punishable with death or imprisonment for life.
(5) Kidnapping and abduction of a woman who is less than 16 years of age, from her lawful guardianship is punishable with 7 years' imprisonment.
(6) Kidnapping, abducting or inducing a woman to compel her for marriage or that she may be forced or seduced to illicit intercourse is an offence which was previously contained in the Pakistan Penal Code but now stands repealed by the Zina Ordinance, 1979, under which it is an offence punishable with imprisonment and thirty stripes.
(7) Another offence contained in the P.P.C. and repealed by the Zina Ordinance is selling or buying a person for the purpose of prostitution, for which the punishment is life imprisonment plus thirty stripes.
(8) Marrying again during the lifetime of a husband or a wife in any case in which a second marriage would be void is an offence punishable with imprisonment for seven years. This provision is not helpful for Muslim women because under Islam a second marriage for a man is not void.
(9) Whoever commits the above offence and conceals the fact of his previous marriage from his subsequent wife is liable to be punished with imprisonment for 10 years.
(10) Whoever goes through a marriage ceremony fraudulently without a lawful marriage actually thereby contracted, is liable to be punished to 7 years' imprisonment.
IN THE CRIMINAL PROCEDURE CODE, 1898, WHICH LAW LAYS DOWN THE PROCEDURE WHEREBY ALL OFFENCES UNDER P.P.C, ARE INVESTIGATED, TRIED AND DEALT WITH:
(1) A police officer, while breaking open any entrance to effect the arrest of a person, cannot, if the house is in the occupancy of a woman, enter without giving her an opportunity to withdraw before breaking open the apartment.
(2) The search of a woman can only be conducted by another woman, with strict regard to decency.
(3) If a woman sentenced to death is found to be pregnant, the High Court shall order postponement of the execution of her sentence and may commute her sentence to life imprisonment.
(4) Under the Criminal Procedure Code, women cannot be punished with whipping.
(5) A woman may be released on bail even if reasonable grounds exist for believing that she is guilty of an offence punishable with death in non bailable cases.
(6) Chapter 36 (XXXVI) of the Cr.P.C. dealt with the maintenance of wives and children whereby the District Magistrate had the power to order a man to support his wife and children, both legitimate and illegitimate. This chapter was repealed in 1981 and matters of maintenance are now dealt with by the Family Courts in a civil proceeding. This was an important right vesting in women and children because it was enforced regardless of the personal law and religious belief of the parties and recognized illegitimate children as being entitled to be maintained by their fathers through the Court's coercive machinery.
(7) Upon complaint of unlawful detention of a woman, the District Magistrate has the power to order her immediate restoration.
IN THE PUNJAB JAIL MANUAL WHICH CONTAINS `SHE RULES RELATING TO TALE MANAGEMENT OF JAILS AND TREATMENT OF PRISONERS:
(1) According to the rules gowning woman prisoners, women who are either pregnant or nursing a child are entitled to a special diet which includes milk, fresh vegetable and fruits etc,
(2) Woman prisoner are absolutely exemped from the imposition of fetters at all times,
(3) The tasks allloted to woman prisoner must not exceed two third of the tasks fixed for adult male convicts.
(4) The, visa of every woman pr4onor who 14 to an advanced stage of pregnancy is to be reported to the Inspector‑General with a view to obtaining suspension and remission of her sentence.
(5) Women prisoners are allowed to retain their children with them in jail till they attain the age of six years.
(6) Women prisoners, both convicted and under trial, are required to be rigidly excluded from male prisoners so as to prevent their seeing, conversing or holding any communication with men and their enclosure must not be visible from any part of the male jail.
(7) No male officer of the jail may enter the women's ward by day unless he is accompanied by a woman warder and should it be absolutely necessary to enter a women' ward at night, it shall be in the company of the Deputy Superintendent and the Head Warder,
(8) Similarly according to the Police Rules, no woman is to be detained at a police station. She must either be immediately sent to judicial custody or released on bail. Except in unavoidable circumstances, no woman may be Lodged even for a single night in a police station and no application for her remand to police custody may be made without special order of a Gazetted Officer.
With rules as stringent as these, one wonders why newspapers are replete with reports of sexual abuse of women, of women being raped in police custody and even becoming pregnant in jails. Obviously, there is something terribly wrong with the implementation and compliance of these rules. Quoting Shakespeare: "Something is rotten in the state of Denmark".
The list of laws providing protection to women is long and much can he said about each one of them. However, on account of constraint of space, I would like to confine myself to an analysis of one set of laws about which there are many misconceptions, misapprehensions and lack of understanding amongst the general public, specially women. I am referring to the "Offence of Zina (Enforcement of Hudood) Ordinance" which was promulgated in 1979,
Several criminal laws, including the laws relating to rape and adultery were repealed in 1979 by the promulgation of the Hudood Ordinance lit an attempt to Islamise the existing criminal laws of the country. The word "'HADD" means measure, limit and in law it means a punishment, the measure for which has been prescribed by the Holy Qur'an. Tazir, on the other hand, is a sentence which is imposed at the discretion of the Court whenever the strict evidentiary requirements for the proof of Hadd are not met. Under Islamic law, Zina is a sin as well as a crime for which the Qur'an prescribes a specific punishment, i.e. 100 stripes, and according to dome schools of thought, stoning to death or `rajim' for a married person.
A comparative study of the repealed and the existing penal laws would reveal that before the promulgation of the Hudood Ordinance, the act of illicit sexual intercourse was an offence for which a man alone could be punished. The sections that dealt with the subject previously were the provisions relating to rape, adultery and buying and selling a person for the purposes of prositution. None of these provisions provided for the punishment of women who committed illicit sexual intercourse. This was understandable in the case of rape, which was an offence even if committed by a man with his own wife, with her consent, if she was less than 14 years of age. However. a woman committing adultery was not liable for any offence. Her husband could bring a charge of adultery against the person who commited adultery with his wife, but the adulteress could not even be punished as an abettor. Similarly, the repealed laws prescribed punishment for a person buying or selling another person for the purpose of prostitution, but the Pakistan Penal Code did not define voluntary prostitution itself as an offence. It would not be incorrect to infer that under the original laws, as contained in the P.P.C., illicit sexual intercourse by a woman was permitted by implication. This was an apparent and a serious lacuna that existed in the penal laws of a country such as ours, which we call the Islamic Republic of Pakistan, because in Islam sexual intercourse between two persons who are not lawfully married to each other is a major offence, the punishment for which is prescribed by the Our'an itself. Hence, the need to bring the penal laws relating to women in consonance with the Injunctions of Islam.
The Hudood Ordinances do not differentiate between the criminal liabilty of a man and a woman. However, women are at a disadvantage when it comes to proving a charge of Zina liable to Hadd. The evidence of a woman as a witness is absolutely excluded in Hudood case. Her evidence is admissible for the imposition of Tazir as punishment, but Hadd cannot be imposed on the testimony of the female witness in Hudood cases, that is, in cases of Zina, theft, drunkenness and Qazf or false imputation of unchastity. At the same time, it must be clearly understood that the evidence of a woman is not exucluded as a complainant, but only as a witness. She has equal rights to lodge a complaint and initiate proceedings in a Hudood case, but the evidence she is required to bring forth in order to establish her claim must be that of four Muslim, male, adult witnesses under the Zina Ordinance and two male witnesses in other Hudood cases.
The definition of Zina under the new Ordinance is wilful sexual intercourse between a man and a woman who are not married to each other. The concept of consent, which was hitherto a complete answer to a charge of rape vanished and, in fact, consent itself become an offence, whether committed by a man or a woman. Under the Hudood Law, the Nikahnama has replaced consent as a defence to a charge of Zina.
Whereas the punishment for Zina is much harsher than, that which was prescribed for rape, the quantum of proof reuqired to prove a charge of Zina or Zina‑bil‑jabr liable to Hadd, is almost impossible to rind given the moral fabric of today's society. Zina liable to Hadd can only be proved in one of the following forms:‑‑
(1) If a confession is made before a competent Court.
(2) If at least four Muslim adult male witnesses who are persons of unimpeachable character, just and uprighteous, give evidence as eye witnesses of the fact of penetration.
A confession which is subsequently retracted, or which is made in less than four different sittings is admissble for the imposition of Hadd, Similarly, the evidence of four Muslim male witnesses is inadmissble if the character of any one of them is in any way doubtful, or if one of them resiles from his statement before the execution of the sentence. The result of these stringent requirements of proof is that to date no conviction of Zina of Zina‑bil‑Jabr liable to Hadd has been upheld by the Federal Shariat Court. Cases registered and convictions upheld by the Federal Shariat Court, up to the present day, are for Zina or Zina‑bil‑Jabr liable to Tazir in which the testimony of even a single woman witness is admissible in appropriate circumtances, and for which the maximum punishment for Zina is 10 years while for Zina‑bil‑Jabr it is up to 25 years.
While the object and dearest interest of the Zina Ordinance is closely connected with the chastity of women, the misuse of its application by men has had the‑effect of exposing women to the most scandalous, humiliating and brutal forms of exploitation. The moment a woman contracts a marriage of her own choice or enters into A second marriage after a valid divorce, her reputation is besmirched and her motives questioned as false allegations of Zina are levelled against her by her father, brother or ex‑husband. Since consent, as a defence, has been replaced by a valid Nikahnama, there has grown a tendency among parties to rely on forged Nikahnamas. Very often both the complainant and the accused produce registered Nikahnamas as proof or disproof of the charge, and it is the cumbersome duty of the Courts to ascertain the truth or falsehood of a Nikahnama in order to decide a Zina case.
A possible solution that comes to mind as a measure for discouraging this tendency of relying on forged Nikhanama is that the moment a Court is satisfied that the complainant relies upon a forged Nikahnama, it should suo motu order the registration of a criminal case against the complainant and his witnesses for producing false evidence. A sizeable number of such convictions should act as a deterrent against the harassment and false prosecution of innocent women.
A study of case‑law on the subject clearly shows that the Federal Shariat Court does not generally misinterpret or misapply the Hudood laws. Maximum benefit of doubt is always given to the accused, be it a man or a woman; strict corroboration is demanded for bringing home a charge of Zina and maximum weight is attached to the statement of a prosecutrix alleging rape when she is a minor. A failure to establish a charge of Zina‑bil‑Jabr is not interpreted as a confession of adultery as is commonly believed in some circles. The age of the victim and of the accused is of vital importance for the purposes of determining the gravity of the offence and the quantum of punishment and convictions based on an erroneous application of the law are always reversed in appeal by the Federal Shariat Court.
The answer then lies, not in framing fresh laws nor in repealing existing laws, but in preventing the violation and misuse of the laws concerning women. There is a need to streamline the execution and enforcement of law and to create public awareness of recognizing the dignity of woman as human beings. The laws on the books are not necessarily imperfect but they must be respected, adhered to, inerpreted and applied properly in their true spirit, before we can call ours a just legal system.