Right to Refuse

In two judgments delivered barely a week apart, the Supreme Court has revisited a question that continues to trouble Pakistan's legal and social order: how much say a woman has over her own marriage. On October 7, a five-member bench recognised serious and irreconcilable marital discord, or shiqaq, as grounds for dissolution even without proof of cruelty. On Tuesday, another bench dismissed the review petition of Muhammad Kamran, sentenced to death for murdering a woman after she refused his marriage proposal. Justice Muhammad Hashim Khan Kakar's nine-page judgment deserves particular attention for its treatment of consent. The court rejected Kamran's attempt to present rejection as provocation warranting leniency. Quite properly, it refused to clothe an injured male ego in the language of legal mitigation. A marriage proposal creates no entitlement, and its rejection gives rise to no grievance that criminal law can recognise. The court also examined ghag, swara, vani and watta-satta, customs through which women's marital choices have frequently been subordinated to family arrangements or tribal authority. Their legal implications differ, but coercion runs through those practices where consent is dispensed with. Parliament criminalised several such abuses years ago, while Khyber Pakhtunkhwa outlawed ghag in 2013. Their persistence points to the poor enforcement of laws already on the books. To add to the irony, free consent to nikah is firmly grounded in Islamic law, while constitutional guarantees of life, dignity and equality leave little room for the supposed prerogatives of an aggrieved suitor. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women further reinforces the principle. Yet women who assert these rights can find themselves at the mercy of relatives, prospective husbands or local power brokers. The criminal justice system, meanwhile, has too often been content to pick up the pieces. Threats, stalking and harassment following rejected proposals deserve attention before they culminate in violence. Police must treat credible complaints as grounds for timely preventive action, while prosecutors and protection services must be equipped to deal with coercion and intimidation. A conviction after years of litigation, however justified, offers scant consolation to the family of a murdered woman. The latest ruling also settles a narrower legal question. Fifteen years on death row did not automatically entitle Kamran to commutation, and the court found no error warranting interference under its review jurisdiction. The country's judiciary has left little room for ambiguity about a woman's right to choose, and ergo, the greater responsibility now rests with police and provincial administrations. *