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Friday August 19, 2022

What is the domestic violence law?

August 27, 2021

The opposition to the Domestic Violence (Prevention and Protection) Bill 2021 exposes both the societal paradox that violence in one form or another is necessary to sustain our family structure, and our predilection for conflating culture with Islam.

Consider the societal anxiety surrounding the Bill where they posit that it will prevent parents, more specifically fathers, from exercising their parental duties. Under the bill, a child, defined as anyone under the age of eighteen, can bring a complaint not only for physical abuse [Section 3(a)], or sexual abuse [Section 3(c)] but also for “emotional, psychological and verbal abuse” that includes “stalking”, “harassment”, “threats to cause physical pain”, insults or ridicule”, or “possessiveness or jealousy causing repeated invasion of the victim’s privacy, liberty, integrity and security”.

The opponents of the Bill posit that the language is vague and can prohibit parents from imposing curfews on their children, reading their personal diaries, making them turn their google location live, and reprimanding or voicing concern against their activities. To a more extreme degree, some see this as an infringement on a parent’s ability to prevent their child from committing zina or imposing punishments when the child is being disobedient or not praying.

This is a misrepresentation. Parenting is as different from abuse according to the law as is lightly spanking your child to breaking their bone, and the Bill protects the rights of parents to do the former in three ways. First, in order to establish emotional, psychological and verbal abuse, there needs to be “a pattern of degrading or humiliating conduct” [Section 3(b)]. Second, not only does the behavior have to be repetitive, it also has to actually cause fear, physical or psychological harm to the child, all of which needs to be proven in court. Third, courts are mandated in the Bill to consider the overall facts and circumstances of the case when deciding the case, which means that a holistic determination of whether abuse has transpired would, practically speaking, consider parental concerns [Section 3, Explanation II].

Given that in Pakistan, disputes are first paraded before extended relatives, then the police who also stress on resolving ‘private’ matters, this means that only the direst cases will end up in courts. Even in court, there is a well-documented judicial bias that often disbelieves victims and underplays their trauma – thus the idea that a judge would protect the right of a child to engage in zina, already a crime, is doubtful.

Arguments that wives and children will report frivolous cases, and that this will weaken the family structure are thus misplaced. Even though marital rape was implicitly recognized by law in 2006 (Women’s Protection Act, 2006), no judgment has been reported on it so far. Why? Because the existing social barriers are far too many to allow victims to come forward. The Bill won’t destroy the “family system” because it’s unlikely to be used by victims to protect themselves till societal repercussions for doing so lessen.

Even though all four provinces in Pakistan have domestic violence bills, and statistics from Thomas Reuters Foundation reported that 90 percent of women face domestic violence in their lifetimes, still evidence suggests the overall conviction rate of all cases of violence against women (and not just domestic ones) is reportedly still less than two percent. It is also well-documented that in cases of child sexual abuse, acquaintances and family members are at the top of the list as abusers, as per data by the NGO Sahil.

Why are we then fighting a hysteria-driven, imaginary moral crisis, which has no statistics to back it up, little to no nexus to our lived reality, instead of fighting a statistically backed societal problem that is increasingly becoming undeniable? Even then, the bill is limited to Islamabad [Section 1(2)], so the idea that this will invoke a national crisis is disingenuous.

Since honour killings, child abuse, rape and murder typically don’t happen in isolation, the bill could theoretically protect women and children from falling victim to such crimes by breaking any pattern of escalating abuse when it is still moderate. And this protection is not limited to children and women. The Bill states that any vulnerable person, including the elderly, persons with disabilities, or those with illnesses, or any person in a domestic relationship can come forward with a complaint [Section 2(i)]. So, it can protect your disabled aunt, your parents in old age, an adopted child being abused in a joint family system, and recognize instances where men too are abused or harassed in their households. If anything, the bill seeks to change the family system for the better.

Meanwhile arguments that the Bill is un-Islamic for disallowing men to physically discipline or reprimand their wives and children are, at its very core, steeped in the ascription of ideological superiority of one sex over another and embody disingenuous and selective reading of religion. Islam does not condone the kind of physical abuse criminalized in the Bill, nor does the Bill prevent parties from reconciling according to the different steps prescribed in Islam in situations of marital dispute. Furthermore, religious interpretation evolves with time, and recognized Islamic methodological tools like Ijtihad and Maslaha can be used to come up with holistic interpretations of the Quran according to the needs of society.

Our judiciary has in the past removed the requirement for women to get the consent of her husband for a khula, on the basis of ijtihad, by differing from views of Muslim jurists on the grounds of public policy, justice, equity and good conscience (Khursheed Jan v Fazal Dad PLD 1964 Lahore 558). The Federal Shariat Appellate Bench in 2009 declared that ijtihad is meant to play a “vital role in the evolution of laws and making them progressive, modern and dynamic” (Abdul Majid v Government of Pakistan 2009 PLD 861 Shariat Appellate Bench).

This is not to argue that all women’s rights can be rationalized within the religious framework. However, on the topic of domestic violence, it is clear that male anxiety for maintaining dominance in the house and on women’s bodies is dictating the interpretation, with religion merely a convenient and handy tool. To those who argue that there is no harm in sending the bill to the CII, the mere capitulation of the government to external pressure shows that this bill is not a battleground for protecting Islam, but is one of the many wars that are fought for maintaining the status quo of patriarchy and appeasing political parties that can further their political agenda under the guise of Islam, a notion not unfamiliar in Pakistani politics.

At this point though, the win for or against the bill would be an ideological one. Domestic violence is only one of the symptoms of a collective societal moral failing, along with atrocities against minorities, curb on the freedom of speech, enforced disappearances, and widespread discrimination. When a society holistically justifies violence as a necessary tool to regulate what it considers to be tolerable behavior, and when such exhibition of violent behaviour is exalted, then undoubtedly, an individual’s values will be reflective of that society’s conscience. The Bill, if passed, would be a step in the right direction, but reorienting our predilection and justification for violence and, increasing our threshold for what we consider tolerable behavior, is key for it to be effective.

The writer is a lawyer.

The writer can be reached at oahmed@llm19.law.harvard.edu and tweets @Orubah

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