Know Your Nikahnama نکاح نامہ کو جانیئے

A forced marriage occurs when one or both spouses do not (or, in the case of children and some adults at risk, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure, threatening conduct, harassment, the threat of blackmail, use of deception and other means. It is also true if a person is incapable to consent to or understand the nature of the marriage. A forced marriage is a violation of human rights, as well as a form of Gender-Based Violence as it usually involves mental abuse, emotional blackmail, and coercion from either the family or society. Many cases also involve physical violence, abduction, detention, threat of murder or murder.

Forced marriages are different from arranged marriages in which the families of both spouses take a leading role in arranging the marriage but the prospective spouses have the choice whether or not to accept the arrangement. This tradition has existed successfully in many communities and countries for a very long time. However, if even one of the spouse changes his or her mind but is forced to go ahead with the marriage, it is considered a forced marriage.

In Pakistan, arranged marriages (where both bride and groom are introduced and do provide some degree of consent) are the norm and even where the formalities are rigorously observed, the right to choice of spouse is very limited. Traditionally, the bride and bridegroom do not meet before the marriage and at the time of Nikah (the contract of marriage) either the bride’s silence is considered consent or her head is forcibly moved to denote consent. Many women are not aware that any marriage without their express consent is invalid according to the law and the Quran. Although there are no reliable figures to estimate the prevalence of the phenomenon, an increase in forced marriages was recorded in December 2011 with an average of 14 per district compared to 8 in November 2011.

LEGAL AND RELIGIOUS STANDING

According to International Human Rights law, an early (forced) marriage is an abuse of children’s rights under the UN Convention on the Rights of the Child. The Constitution of Pakistan provides legal guarantees, safeguarding the rights of both genders without any discrimination under articles 4, 8, 14, 25, 26, 27, 34, 35, 37 and 38.

In 2004, the Criminal Law Act was enacted under which section 310(a) penalizes badal-e-sulh, under which girls/women cannot be given in marriage as compensation for someone else’s crime. It directly deals with all forms of “marriage as compensation” carried out under different names, such as swara, wani, sang chatt and irjaee. Recently, according to the Prevention of Anti-Women practices (criminal law amendment) act 2011, anyone imposing a forced marriage on a woman would face imprisonment which may extend to ten years but not less than three years and shall also be liable to fine of 500,000 rupees. For marriage with the holy quran, badla-e-sulh, wanni or swara the imprisonment ranges from three to seven years and the perpetrator may be fined 5000, details here.

Islam gives women the right to choose and reject or accept the marriage proposals even against their parents will. The Qur’an states “o you who have believed, it is not lawful for you to inherit women by compulsion…” (4:19). Similarly, Prophet Mohammad(pbuh) said, “the widow and the divorced woman shall not be married until her order is obtained, and the virgin girl shall not be married until her permission is obtained.” (bukhari, 67:42). how the religion changes form in the society is what makes facts turn out differently.

Honour Crime

Honour Killings, or Karo-Kari as it is commonly referred to in Urdu, is the act of murdering someone to restore ‘honour’, usually ‘family honour’. It is an example of a practice that in some parts of Pakistan has become such a cultural norm that few people question it; hence, it is widely-practiced and an overwhelming majority of the murderers get away with it, regardless of law and consideration for human rights. Pakistan has one of the worst cases of karo-kari in the world. The victims of this crime in Pakistan are female and the perpetrators usually male family members who act in response to perceived ‘immoral behaviour’.

In 2005, the average honour killings in Pakistan were recorded at a staggering approximately 10,000 victims per year. An overwhelming majority of women who were victims of these honour killings are recorded as either having committed suicide or having died in an accident. It is a researched fact that these killings have less to do with religion and more to do with the culture of the perpetrating society. An act of honour killing might occur if the victim refuses to take part in an arranged marriage, or ask for a divorce, or her actions are perceived as flirting and in some cases, even if she was raped. Just suspicion and accusation sometimes alone are enough to have a victim killed in an honor killing: actually being guilty does not matter.

Be warned! In many cases the victim is accused of these things to justify being killed because of property inheritance, fight-settling, for getting rid of the wife so that the husband may remarry. Many victims in Pakistan are women who were killed because they wanted to marry someone of their own will.

The desire for large amounts of dowry among husbands and in-laws may also often lead to problems for married women, including domestic violence. The bride is the one that is usually blamed by the in-laws for her family failing to provide enough dowry and she is constantly reminded of this. In some cases, this may also be a cause for honour killings or ‘dowry deaths’. According to a 2010 report by the Human Rights Commission, around 3,379 women were killed in Pakistan between 2005-2010 for not bringing dowry with them and asking for their rights. These murders often take the form of kitchen fires meant to look like accidents, and acid throwing. These dowry deaths reveal the mindset of their perpetrators who value a woman’s life lower than material goods and consider it justified to take her life as compensation for the dowry they were denied.

If you feel you are in danger, be very careful and have a person in authority around who you can trust. It is wiser to avoid being assaulted than having to deal with the consequences of an attack, so you are advised to be extremely careful in the short-run until you can find a long-term solution.

Islam and Forced Marriage

Islam teaches that consent from both man and woman is a must before a marriage can take place. The Qur’an states “O you who have believed, it is not lawful for you to inherit women by compulsion…” (4:19). The Sahih al-Bukhari, one of the most revered sources of hadith (Islamic practice) amongst Islamic scholars, reports the Prophet Muhammed (Peace Be Upon Him) as saying: “The widow and the divorced woman shall not be married until her order is obtained, and the virgin girl shall not be married until her permission is obtained.” (Bukhari, 67:42). The next chapter of the Sahih al-Bukhari states: “When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43), with further hadith providing examples of the Prophet Muhammed (Peace Be Upon Him) cancelling such marriages in which the daughter’s consent was not sought.

Therefore, a forced marriage is not an issue of religion, but it is a cultural practice that violates your right as a woman and as a Muslim. The act of forcing someone to marry is in fact an act that is against the practices and teachings of Islam.

Allah Almighty said in the Noble Quran: “O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower [money given by the husband to the wife for the marriage contract] ye have given them, except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good. (The Noble Quran, 4:19)”

The following Saying is an explanation to Noble Verse 4:19:
Narrated Abdullah ibn Abbas: ”About the Qur’anic verse: ‘It is not lawful for you forcibly to inherit the woman (of your deceased kinsmen), nor (that) ye should put constraint upon them.‘ When a man died, his relatives had more right to his wife then her own guardian. If any one of them wanted to marry her, he did so; or they married her (to some other person), and if they did not want to marry her, they did so. So this verse was revealed about the matter. (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2084)” So according to Noble Verse 4:19, a woman can not be forced into marriage by any means.

Narrated AbuHurayrah: ”The Prophet (peace_be_upon_him) said: An orphan virgin girl should be consulted about herself; if she says nothing that indicates her permission, but if she refuses, the authority of the guardian cannot be exercised against her will. (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2088)”

Narrated Abdullah ibn Umar: ”The Prophet (peace_be_upon_him) said: Consult women about (the marriage of) their daughters. (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2090)”

Narrated Abdullah ibn Abbas: ”A virgin came to the Prophet (peace be upon him) and mentioned that her father had married her against her will, so the Prophet (peace_be_upon_him) allowed her to exercise her choice. (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2091)”

Narrated Abdullah ibn Abbas: ”The Prophet (peace_be_upon_him) said: A guardian has no concern with a woman previously married and has no husband, and an orphan girl (i.e. virgin) must be consulted, her silence being her acceptance. (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2095)”

The above Noble Verse 4:19 and the Sayings of our beloved Prophet Muhammad peace be upon him clearly explain that according to Islam, whether the woman is virgin or not, her permission is a MUST. Her father or older brother can not force her into marriage as the Pagan Arabs and the Jews and Christians before Islam in the Middle East used to do; see Deuteronomy 25:5 in the Bible to see how women are forced into marriage.

Unlike secular law, marriage within the ambit of Islam is not only a civil contract but a religious and spiritual contract between two people – which must be entered into freely and with mutual consent. According to Islamic custom, parents and guardians have specific rights in this matter; to arrange the marriage ceremony and conduct it as a respectful family event; give their advice and recommendation for a life partner for their children. These rights are encapsulated within the philosophy of ‘willayah’. However, Islam does not allow parents, guardians or other relatives to enforce their will or choice on a boy or a girl since it is they who are the real parties to that contract. The right to exercise free will and consent in choosing a spouse is a God given right. This is also clearly evident from important commandments given by the Holy Prophet (PBUH) in numerous Hadith, which lay down the foundational principles of formulating a marriage contract. In the Sahih Al-Bukhari, for example, a chapter in the book of marriage has been given the heading: “No father or mother or any close relation can force his/her children to marry anyone against their free will and consent”.

Within this chapter Abu Hurairah transmits from the Holy Prophet (PBUH) who said: “No female whether a widow or divorcee will be forced to marry anyone unless her express and categorical consent has been freely taken and in the same way a woman not previously married can never be forced to marry anyone unless her free consent and permission is taken”.

Imam Bukhari has set another chapter heading within the book of marriage: “If parents force their daughter to marry someone against her wish then the marriage will be void”.

Under this chapter Imam Bukhari reports a Hadith of the Holy Prophet (PBUH) from Khansa Bint e Hizam Al Ansariyah. She states that her father married her off to someone forcefully whom she did not like. She took her case to the Holy Prophet (PBUH) and upon listening to her; the Holy Prophet (PBUH) rejected the marriage and declared the marriage as void”.

In another Hadith in the Sahih of Imam Bukhari it is narrated by Abdullah Ibn Abbas (r.a.d) that the Holy Prophet (PBUH) said that if a woman wants to marry and is already a divorcee or widow, her right of free consent and free choice is superior then the right of her guardian. If she is not previously married and this is her first marriage even then her parents or other guardians cannot enforce their choice on her. They are not allowed to force her to marry any one against her free choice and free consent.

It is thus clearly apparent that forced marriages are totally unacceptable in Islam. Islamic commandments as mentioned above are very categorical in nature. Those who invoke Islam in order to justify their actions do so for ulterior motives. There is a need to educate all and sundry on these issues. In most of the cases, forced marriages are the result of monetary gains, local and tribal traditions and caste affiliations. Strict legislation accompanied by media awareness campaign could be helpful in stemming the trend of the forced marriages.

Pakistan – Muslim Family Laws Ordinance 1961 covers all aspects