Written by: Rida Tahir
Introduction
On 24 December 2021, Justice Ali Zia Bajwa of the Lahore High Court (LHC) delivered the landmark judgement in Ameer Bakhsh v. Additional Sessions Judge [1]. This judgment held that a woman who re-marries without observing the period of Iddah (waiting period) after Khula (divorce) cannot be prosecuted under Section 4 of the ‘Offence of Zina (Enforcement of Hudood) Ordinance 1979’ (Hudood Ordinance). The LHC held that re-marriage without observing the period of Iddah cannot be treated as a void marriage. Therefore, it cannot constitute the offence of Zina.
Zina and Iddah Period
Zina is defined under Section 4 of the Hudood Ordinance [2]. It states that: ‘’A man and a woman are said to commit Zina if they willfully have sexual intercourse without being married to each other’’. As per Section 5, the punishment for Zina is stoning to death at a public place. Iddah refers to the time period a woman observes after dissolution of her marriage or upon the death of her husband. It is observed in order to confirm whether the woman is pregnant and to acknowledge the paternity of the child [3].
Background on the Offence of Zina (Enforcement of Hudood) Ordinance 1979 prior to its amendment
In order to achieve the Islamization of the state and society in Pakistan, the then dictatorial regime in 1979 enacted the Hudood Ordinance [4]. Upon enactment, the Hudood Ordinance criminalized extra-marital sexual intercourse. Accusations of Zina following divorce by the husbands and remarriage by the ex-wife are common [5] in Pakistan. These accusations were frequently made by vindictive former husbands. This is a strategic movement utilized by vindictive ex-husbands to turn their ex-wives into social outcasts. The stigma of being charged with the offence of Zina leaves no place for a woman to live in a Pakistani society as their reputation is tarnished. As a result, the women are shunned in the Pakistani society. Rubya Mehdi notes that, ‘the misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful former husbands and other members of society.’ [6]. Being charged with the offence of Zina victimizes women and exerts extreme gendered inequalities. A majority of women who were charged with Zina were eventually handed over to shelter homes (Darul Amans) due to the shame attached to the offence of Zina. Therefore, a charge of Zina has a discriminatory effect on women.
At the same time, women were not able to obtain bail during the pendency of the trial. In actual practice, the vast majority of accused women are found guilty by the trial court but are acquitted on appeal to the Federal Shariat Court of Pakistan (FSC). Nevertheless, upon acquittal, the women and girls have already spent many years in prison, were ostracized by their families, and became social outcasts [7], as outlined above. Accurate data on the number of women and girls who had falsely been convicted under the Hudood Ordnance is not available as it was not recorded.
In Shahida Parveen v The State (1988 FSC 188), Ms. Shahida and her new husband were convicted under the Hudood Ordinance for the crime of Zina and given the punishment of stoning to death. Although, they were subsequently acquitted by the FSC, many vindictive former husbands continued to accuse their wives of Zina after their re-marriage.
The Hudood Ordinance had a disproportionate effect on women, who were increasingly imprisoned as a result of accusations of adultery. It was a highly criticized piece of legislation. Therefore, the Hudood Ordinance was amended by the Protection of Women (Criminal Laws Amendment) Act 2006 [8] in response to public outcry and pressure from women’s rights advocates.
Landmark case: Ameer Bakhsh v. Additional Sessions Judge
The brief facts of the case are that the Petitioner had moved an application before the Justice of Peace. The Application contained request for issuance of directions to the local police for registration of a criminal case against Amna Bibi (Respondent No.4 and ex-wife of the Petitioner) and her new husband (Respondent No.5 in the case) but his application was dismissed. In Pakistan, a First Information Report (FIR) is registered by the police in order to commence criminal proceedings.
Subsequently, the Petitioner filed an appeal to the LHC claiming that Respondent No.4 had obtained an ex-parte decree of dissolution of marriage and married respondent No.5 on the very next day, without observing the period of Iddah. The petitioner claimed that the marriage of respondent No. 4 and 5 was void as she had not completed the period of Iddah. The Petitioner contended that as a consequence, Respondents No. 4 and 5 were liable to be prosecuted for the offence of Zina under the Hudood Ordinance.
In coming to its judgment, the LHC discussed whether a women had the right to a Khula (divorce) under Islamic law. Additionally, the Court laid down the types of marriages under Muslim Family Law. Moreover, the application of Hudood Ordinance after the enactment of the Protection of Women (Criminal Laws Amendment) Act 2006 was also discussed.
The LHC made reference to the Supreme Court’s (SC) judgment in Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 Supreme Court 97) and confirmed that a woman has a right to obtain Khula from her husband if she does not want to continue her wedlock with him. Therefore, the LHC held that the Respondent No.4 had exercised her legal and Islamic right.
Additionally, the LHC made reference to A. Fyzee’s (1964) [9] book on Muhammadan Law at p-106 and confirmed that there are three types of marriages in Islam:
1)Valid (sahih)
2) Void (batil)
3) Irregular (fasid)
The LHC made reference to Muhammad Sher v. Additional Sessions Judge (2016 CLC 717), where it was held at paragraph 9 that: ‘’ It is settled Islamic law that the marriage entered into divorced lady before the completion of Iddah period would be irregular marriage and not void marriage as per law laid down in Mullah's Muhammadan Law. Marriage which is irregular cannot be treated as void marriage. The union of husband and wife in irregular marriage cannot be regarded against un-Islamic or Shariah…” (Sic).
The LHC confirmed that the marriage of Respondent No.4 with Respondent No.5 cannot be termed as a void (batil) marriage but will be termed as an irregular (fasid) marriage. The LHC then considered whether such marriage amounts to the commission of Zina under the Hudood Ordinance. The LHC stated that the definition of Zina before 2006 stated: ‘’A man and a woman are said to commit Zina if they wilfully have sexual intercourse without being validly married to each other’’. However, after the enactment of Protection of Women (Criminal Laws Amendment) Act 2006, the word “validly” was omitted by the legislature in Section 4 of the Hudood Ordinance. The LHC held that after the enactment of the 2006 Act, spouses of an irregular marriage cannot be held guilty of the offence of Zina.
Therefore, the newlywed couple in the case: Amna Bibi (Respondent No.4 and ex-wife of the Petitioner) and her new husband (Respondent No.5 in the case) were not guilty of the offence of Zina. Although their marriage was irregular, as the Respondent No.4 had not observed the Iddah period, the offence of Zina (as amended by the Act 2006 did not apply to them.
Conclusion
The Ameer Bakhsh case not only highlights the discriminatory nature of the Hudood Ordinance, but more importantly, how the discriminatory effect of that enactment is seen till this day. The Petitioner's contentions were dismissed by the LHC. However, his ex-wife had to put up with the frivolous and discriminatory litigation.
Nevertheless, the landmark case will go on to protect women who exercise their right to obtain a divorce and subsequently enter into another marriage. The progressive judgement in the Ameer Bakhsh case on the protection of women is being celebrated across Pakistan.
Rida Tahir is a UK qualified Barrister-at-Law and an Advocate of the High Courts of Pakistan. She is a lecturer for the University of London and University of Hertfordshire law programmes in Pakistan. She specialises in human rights litigation with particular focus on the rights of women and children. She is a gender expert and has been invited to several conferences and events to provide her input. Recently, she was invited by the UN Women to a consultative meeting, which was presented to the office of the Honourable Prime Minister of Pakistan and resulted in the National Gender Policy Framework.
[1] Ameer Bakhsh vs. Additional Sessions Judge (Writ Petition No.16880/2021). Available at: https://sys.lhc.gov.pk/appjudgments/2021LHC8305.pdf
[2] The Offence of Zina (Enforcement of Hudood) Ordinance 1979
[3] RNZ (2019), ‘’ Iddah: Giving Muslim women time to grieve and reflect’’. Available at: https://www.rnz.co.nz/news/national/386943/iddah-giving-muslim-women-time-to-grieve-and-reflect
[4] Charles H. Kennedy (1988), ‘’ Islamization in Pakistan: Implementation of the Hudood Ordinances’’. Available at: https://www.jstor.org/stable/2644489
[5] Human Rights Watch (2006), ‘’ Pakistan: Proposed Reforms to Hudood Laws Fall Short’’
[6] Rubya Mehdi (2010), ‘’ The Protection of Women (Criminal Laws Amendment) Act 2006 in Pakistan’’, Droit et cultures
[7] Rahat Imran (2005), ‘’ Legal Injustices: The Zina Hudood Ordinance of Pakistan and Its Implications for Women’’. Available at: https://vc.bridgew.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1435&context=jiws
[8] The Protection of Women (Criminal Laws Amendment) Act 2006
Available at: https://na.gov.pk/uploads/documents/1321341579_812.pdf
[9] Asaf A. A. Fyzee (1964), ‘’ Outlines of Muhammadan law’’. Available at: https://www.cambridge.org/core/journals/bulletin-of-the-school-of-oriental-and-african-studies/article/abs/asaf-a-a-fyzee-outlines-of-muhammadan-law-third-edition-xx-509-pp-london-etc-oxford-university-press-indian-branch-1964-37s-6d/C3A4DDF5F875B706EB6F0DEA5C9B2091