Passionate Legalities of Marriage

(This in fact is a Chapter of my upcoming book)
Also available at Academia

By Tipu Salman Makhdoom

Marriage as a Control of Biology:

Sex is good for health. Very good in fact. Not only for body, but also for brain, which incidentally is the largest sex organ in human body. Scientific studies in this regard have been voluptuous. One set of studies shows that men who reported highest frequency of orgasm enjoyed life expectancy 200 percent more than those who lagged behind. Another set indicates that men who had sex at least 3 times a week slashed their heart attack risk to half. Yet other studies demonstrate that frequency of sexual activity is directly proportional to the lower risk of breast cancer in women and that of prostate cancer in men.[1]

But sex has been a major social challenge since the dawn of civilization. In order to avoid social disruption resulting from individual friction, society has always striven to tame & control individual social behavior; primal being male desire to have indiscriminate sex, even with the females of other males. For centuries men were considered polygamous, if not cheaters, by nature. Accepting this evilness as a part of their natures, a compromise was struck by the social morality. Thus, social norms were devised and red light areas were tolerated to satisfy men’s unruly disposition at the cost of keeping the fabric of society. Though traditional wisdom was perhaps right about the natural inclination of men to cohabit more and more women, they were wrong about the cause of it. Modern evolutionary theories indicate that this adulterous behavior of men can be networked in their genes, with an evolutionary cause, if not a justification. Survival is a universal natural drive found in every life form. With the emergence of the bulging logical brain, the frontal lobe in humans, this drive is thought to have developed into a desire for immortality. While the intellect tries to achieve immortality of its ideas, biology’s goal is immortality of its genes. The best way for such an immortalization in case of ideas is to make them interesting and useful, and in case of biology is to make sure that the genes are transferred in the children. Since man and woman contribute differently in procreation, their strategies for ensuring the transference and survival of their genes in next generation also evolved on different lines. A woman ensures transference of her genes in the next generation by getting the genetically superior sperms for fertilization of her egg so that her genes are transferred in a ‘survival of the fittest’ kind of next generation who survives and with whom her genes also survive. For this she needs to be choosy and select the best of all available males, best in terms of survivability. Next she has first to keep her children in her womb for quite a long time and also has to take good care of them even after birth as unlike most animals, a human baby does not get ready for independent survival until after several years of birth. This forces a woman to get commitment and loyalty from her sexual partner so that, with his help, she can ensure the survival of her kids till the point that they stand on their own two feet. This very well explains the loyalty driven demands of women in romantic relationships. On the other hand, a man can ensure survival of his genes by fertilizing maximum number of his sperms with maximum number of eggs thereby increasing the statistical chances of his genes survival. This he can achieve by cohabiting with as many women as he can. This tendency has been observed in many animal males[2] and very well explains the adulterous nature of the man.

This however, could not be understood by the Church in the middle ages. Considering this biologically enshrined psychological nature of man as essentially evil, medieval Church tried to purify him by promoting monogamy with its typical religious zeal and raising the standards of morals, especially sexual morals, ever higher, though seldom with much success.[3] Although without much success in case of men, this purification drive was a great success in case of women. Male dominated Church which was already biased against women, taking the trail from the myth of original sin, was forced by men to solve the problem of parental identity of children. This was achieved by the application of strictest moral code on women, especially regarding sexual behaviour. After all no man wants to invest his time, effort and resources in children which do not carry his genes. So while adulterousness of men with prostitutes was tolerated, as it did not disturb the certainty of parentage and genetic identity of children, every effort was made by man dominated society and Church to snub the sexual drive of women. After all any sexual adventure by women in those dark ages of scientific knowledge would have brought genetic identity of children in jeopardy leaving bewildered men without any means of making sure that the child being described by the mother as theirs was actually—genetically—theirs. This resulted in creation of such religious morality and social norms which inculcated deep rooted fear in women’s minds regarding sex and a consequent psychological inhibition developed in the female minds against losing virginity before getting married. It is even believed that whatever general intellectual inferiority of women is there today, it has resulted from the restraint upon curiosity imposed by the fear of sex.[4] Sadly, this medieval trend has seeped-in the modern times. Religious leaders are still fighting against such sins as intercourse before marriage, infidelity, homosexuality, and abortion.[5] In globalization of culture, when traditional or fundamental societies receive western liberal and progressive moral values, their religious monopolists call for crusades in order to protect their future generations from the evil of corrupt moral values.[6] But moralists always forget that ‘[u]nderestimating the novelty of the future is a time-honored tradition’ of the human society.[7]

Legal License to Impunity: Marriage

People in their teens should be thankful to our legislature that masturbation is not a crime.

Ah, before I proceed with my rather scandalous prose, let me point out that masturbation is a normal and recognized word of English language which describes a phenomenon that is common in people of all ages and gender but is considered popular among the teenagers. What I am saying in essence is that if my prose looks vulgar, think again. The word masturbate has been defined by Oxford English Dictionary[8]  to mean to “arouse oneself sexually or cause (another person) to be aroused by manual stimulation of the genitals.” If you still find me indecent, blame Standard English Dictionaries, not me.

And by the way, our concept of decency is totally messed up. For instance, in our culture, a woman finds it very embarrassing and people find it quite vulgar for a woman to go to pharmacy and ask a male salesman for condoms. It is considered that by committing this sin, a woman basically invites a stranger to think about her having sex. On the other hand, it is considered very normal, decent and socially accepted that a woman introduces his child and husband to a stranger male. I think this is quite illogical. Nothing definite is pointed in a demand for condom which can lead one to think that perhaps the woman asking for condom wants to use it for sex or maybe she is taking it for her sister or a friend and she is not going to use it herself. But telling someone that they were her child and husband conveys it most certainly that she had sexual intercourse with this man which resulted in her pregnancy and later birth of this child. There is nothing vulgar or indecent in this for sure; but so is the case with the previous example. Still, somehow, we find the first instance an indecent one but not the second one.

A book talking about sex in simple words, i.e., referring sex as sex, is generally considered indecent. However, our laws talk about sex openly, frankly and in simple words i.e., sex is referred as sex. Laws, which are published by government and every citizen is required to know them by heart, ‘ignorance of law is no excuse’ being one of the fundamental principles of our law. A glaring example is the provision prohibiting fornication[9] which states that “A man, and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.”

After this rhetoric meant to convince you to keep reading my vulgar prose, let’s come back to masturbation. It just occurred to me one day that law controls almost every aspect of our life. This includes even the most colourful aspect of our life, sex; making love, to use the literary-cum-romantic phrase. We cannot make love with whomever we like. We cannot make love wherever we like. And we cannot even make love in whichever way we like (more on this later)! If we do, we are liable to spend many years of our lives behind the bars. But sex, I mean the act of having sex, involves two persons. Is masturbation prohibited as a single person sex? Islam, which is our state religion,[10] does not prohibit it; perhaps not. While Imam Malik and Imam Shafi regard masturbation completely against Islam, Imam Ahmed bin Hambal proves very progressive and considers it a natural and a completely lawful act. Imam Abu Hanifa, followed by the huge dormant majority of Pakistani Muslims, on the other hand takes a middle way considering it bad but probably a forgivable mistake.[11] So much for religious morality, what about positive law?

Starting from the start, I scanned the criminal code[12] to see if it defines masturbation as a crime. Pleasantly, could not find it. But the excitement proved short-lived. As usually happens with our negativity prone thought process, soon I started having second thoughts. Perhaps the decency of our legislature forced it from referring such a shameful act so openly; in such simple, shameful, indecent terms. After all indecency is a crime in itself and uttering an obscene word can entail a prison sentence of up to three months.[13] In our Country, criminalizing masturbation by our conscientious legislature in some obscure Arabic term can’t be considered abnormal. Crimes like “Itlaf-i-udw”[14] which in fact is amputation and is punishable with up to 10 years prison sentence, or “Isqat-i-janin”[15] which simply put, is abortion and is punishable with up to 7 years in jail support my insecurity. Or maybe, I thought, Masturbation could emerge as a crime of consequence—a by-product crime—an act which becomes crime only if done while committing another crime; takes me back to Safia Bibi, a blind girl who lodged complaint against her rape and ended up in jail on the charge of adultery. The case attracted international coverage in early 1980s when Safia Bibi an 18 years old blind domestic servant of a landlord was raped by her employer and his son. Her father lodged an FIR[16] for the rape of her daughter against the landlord and his son. What turned out under the Islamic laws[17] imposed on Pakistan by its pious dictator, the self proclaimed soldier of Islam,[18] late General Muhammad Zia ul Haq, was disturbing. Trial court acquitted both the accused of the charges of rape because of insufficient evidence but convicted Safia for public lashing & 3 years’ imprisonment on the ground that she herself confessed of committing the crime of fornication as she admitted to have illicit sex with her rapist. It proved too much for some. Media took up the case aggressively and it was mainly because of the extensive media coverage that Safia’s case was later reviewed and she too was acquitted.[19] I think Safia will definitely like this beautiful literary description of Zia’s hotly contested and aggressively out-poured piousness:

The generals who had called Zia a mullah behind his back felt ashamed at having underestimated him: not only was he a mullah, he was a mullah whose understanding of religion didn’t go beyond parroting what he had heard from the next mullah. A mullah without a beard, a mullah in a four-star general’s uniform, a mullah with the instincts of a corrupt tax inspector.[20]

The haunting vague impressions of this case have left a lasting imprint on my childhood mind; law is such a cunning monster! So I decided not to take chances. I checked again, more carefully this time. None, to much relief. Yet another agonizing thought. We live in a common law country, which means that law is theoretically written in statute books, but it “means” what our judiciary says it “means”. Law often proves to be more complicated than it looks. It’s a common experience of lawyers that reading the plain language of law, which itself is often quite obscure and sometimes even self-contradictory, a normal man understands one thing but when a case goes to court  on the basis of such a law, it turns out, many a times surprisingly, sometimes shockingly, that court understood something quite different. An interesting example is the excitement that was generated among lawyers on initiation of DNA testing in medical investigation of crimes. This feeling of euphoria was less because of technological advancement of our system of criminal administration of justice and more because of that agonizing uncertainty that a lawyer sometimes feels while, say, representing a by rape victim when during evidence he figures out that the story he was told by his client was not making sense and may be, just may be, he was soon going to be a part of a dirty plot to entrap an innocent man in jail for a decade.

Our law of evidence[21] has a very progressive provision which provides that any futuristic techno evidence which is not defined in law but will become available in future owing to technological progress is to be deemed as defined in law.[22] On the eve of initiation of DNA evidence it was a common understanding that this scientific certainty will end many of such frivolous cases which have become a haunting reason for the rottenness of our lethargic legal system. However, a full bench[23] of Supreme Court refused bail to an accused rapist, although the DNA report in his case said that the sperms found on the body of the rape victim were not his. The Court held that DNA report of the sperms found on the victim in a rape case should only be considered evidence if there is no reliable eye witness; and even then it would be treated as of secondary nature.[24] Since rape victim in that case had alleged the offence on that particular accused, court preferred word of the victim on the word of DNA. Words of a rape victim often fall heavy on legal ears.

A scary thought came to mind, what if some judgment had made masturbation a crime while interpreting some other sex related case? Searched again and failed. May be our legislators have grown modern, like some of Islamic scholars who have even allowed the use of vibrators for female masturbation.[25] So, at least I could masturbate with impunity. It means that police cannot break into my house, on secret information, in order to catch me red-handed in my wash-room, masturbating. Even a magistrate cannot issue a search warrant to the police officers to search my home, looking for evidence pointing me conducting—or more precisely committing—masturbation. Even my S.H.O.[26] cannot call me to police station, on the complaint of my neighbor, to investigate if I do masturbate in my wash-room at night—alone of course. It seems that I actually have some freedom.

So teenagers in my country (and also non-teens) can masturbate without fear of ‘Chappa’—a Police raid in local slang. But what are the legal options available to a teen who is bored of masturbating and wants to have sex with a partner. By the way the latest research on teenagers’ concepts about ‘having sex’ shows that while almost all of them consider penile-vaginal intercourse to be sex, most of them also consider penile-anal intercourse as sex. And while many include manual and oral stimulation in sex, some even consider kissing, dating and touching the breasts as falling in the definition of having sex.[27] But whatever he thinks, a local internet-connected global teen can’t have sex with his or her pet, no matter how lovey-dovey they may be, because the punishment is up to life imprisonment.[28] Without going into rather awkward discussion of whether sex with an animal ‘should’ have been criminalized or would it have been better to let the social morality deal with it, we will definitely enjoy scrutinizing the interesting contours of vagueness of the provision which actually criminalizes sex with a pet; which otherwise should have been a straight forward simple task of legal drafting. What this “anti-pet” law in fact prohibits is “unnatural sex”, which it defines as the act of sex “against the order of nature” with any man, woman or animal. This unromantic provision clarifies that unlike most of the contemporary teens, by having sex it simply means penetration for purposes of getting sexual pleasure.

A series of very intriguing questions arise; whether penetration in this provision means penetration of penis or does it criminalize penetration of any body part into the body of another? This is ambiguous. Does law intend to criminalize penetration of tongue into the mouth of the partner? And by the way which body part of the receiving partner will constitute the penetration, vagina, anus or mouth? Will a girl penetrating her finger in the mouth of a boy can be booked under this offence? I had never thought about it; what really is the sex “in the order of nature”? Mind boggling. It seems that the “naturalness-of-the-sex” in the traditional wisdom is tied up with its functionality; procreation. So the penile-anal, animal or “same-sex” sex is considered “unnatural” as it cannot produce babies. Lately, however, a challenge to this traditional concept of “naturalness-of-sex” is gaining popularity. According to this new view, instead of functionality, naturalness of sex should be gauged on the basis of its observance by the number of animal species in nature. On this criterion, homosexuality seems very popular, perfectly normal and quite natural as it has been observed that at least 1,500 animal species, including lions and dwarf chimpanzees practice homosexuality regularly.[29] But courts have crystallized this Hegelian law. A larger bench[30] of Supreme Court declared that sex against the order of nature means penetrating penis in the anus.[31]

So far so good, it seems that oral sex is not a crime. By the way oral sex is also allowed in Islam. Muslim jurists have considered this question deeply and realistically and concluded that for the husband to perform cunnilingus on his wife or for the wife to perform fellatio on her husband is completely Islamic and there is no sin in it. However, couples are advised to take care as if while the wife is performing oral sex on her husband and during sucking husband comes and semen are released, such oral sex is considered Makrooh (blameworthy), though still not illegal.[32]

But the naughty mind doesn’t stop here. Another series of new questions arise (I hope these questions are not initiated in the Police mind). Does this offence of unnatural sex, which is committed when a man penetrates his penis in the anus of a man, animal or a woman imply that an act of man having vaginal sex with a female monkey, or the act of a monkey having a vaginal sex with a woman, is legal? As the law stands now, it pretty much seems like that! But what does “stands now” mean? What you are thinking might be out-right weird, but it is right; unless a case of a lovey-dovey human and, his closest living cousin, monkey couple comes to court and court decides whether or not to extend the meaning of this obscure provision to the monkey genitals, we are forced to keep our fingers crossed. Same is the case with oral sex. Unless police arrests a couple having oral sex red-handed and puts the court in the awkward position of deciding the legality of intimate personal sexual positions and practices, we are not sure if it’s a crime too! Logic cannot come to our rescue here as the great judge Holmes rightly said in 1881 that “[t]he life of the law has not been logic: it has been experience.”[33]

If the naughty mind is not controlled, a stream of dirty thoughts continues. The above two inter-specie cases would not even constitute the crimes of fornication[34] or adultery[35], both of which require both partners of sex to be humans and inclusion of an animal partner will take the act out of the ambit of this crime. Same is the case with rape law which cannot be committed unless both the rapist and the victim are humans.[36]

On serious reflection however, I figured that this law of “unnatural sex” is in fact very feminist; and discriminatory too. To start with, if its discriminatory its illegal because every discriminatory law is out right violation of Article 25 of our grand law, the Constitution itself which forbids legislature from enacting any law which would create discrimination on the basis of sex.[37] Keeping in mind this provision criminalizing only that sexual act which involves penetration of penis of one partner into the anus of another, it is clear as a bright sunny day that whereas a gay couple will fall squarely within its ambit, booked for a hell of a life imprisonment, a lesbian couple will go scot free. Obviously, in lesbian sex there is no—there cannot be, by the very definition of it—penetration of penis. It seems that by not prohibiting lesbian sex in fact our law has legalized it, as the basic principle of our Constitution says that what is not prohibited by law is presumed to have been allowed.[38] Thus by criminalizing sex between two male citizens while legalizing sex between two female citizens the legislature has discriminated between gays and lesbians and thus violated its own mother, the Constitution.

Coming back to our frustrated teen, who desperately wants to have sex but cannot do so with his pet or with a same sex friend. What could he do? Hmmm….let me think. Having sex with an opposite sex friend sounds a good idea. After all every teen in the western world does it. Well, some don’t, and they are normally referred to psychologists for being so “unnatural”! It seems even the biological-psychological naturalness is ordained largely by culture--postmodernism. My suggestion to such bored teens is to be sensitive to their own cultural subtleties because the western “naturalness” can put them behind the bars for up to five long years as having sex without getting married is a serious crime here.[39] Don’t even think about it. When in Rome, do as Romans do; simple, get married before you fuck dude![40]

“Fuck” used to be a very offensive word and it would never be used is decent writing. If at all, it used to be referred as the “F-word”. This however is changing. Not only standard dictionaries have started defining it without any warning, there are actually serious articles written on it. For instance, Law College of Ohio State University published a 74 pages article on it, titled “Fuck”.[41]

Back from the epistemology to the physics of fuck; marriage. Marriage is generally seen as a civil contract.[42] A contract is defined in our law as a legally enforceable agreement, [43] where agreement is a set of mutual promises.[44] A legally enforceable agreement is the one which has been entered after fulfilling the conditions laid down by law. Main such conditions are, that:

(a)- Agreement should have been made by the parties who are legally competent to do so, i.e., they should have attained the age of 18 years, should be of sound mind, etc.

(b)- Agreement should have been entered between the parties with their free consent i.e., neither by coercion, nor by fraud, etc.

(c)- Agreement should not have been entered to achieve any illegal object, for instance an agreement to commit robbery will not be enforced by our Courts.[45]

As a conceptual limitation, breach of a contract between two private parties is never interfered by the police force of state which always results in a monetary compensation, not in arrest and a prison term.[46] If marriage is a contract, why has its violation been criminalized? To be honest, marriage does not fit-in as a contract. If the act to be done is illegal, doing of that act, whether before or after entering into a contract will be a crime. A good example is murder. If, however, the act is legal, for example sale of my house, it will be legal if done through a contract and any breach of this sale contract will entail monetary compensation, no offence. On the other hand, if I will sale my house without entering into a legal contract, law will simply ignore my act of sale as if it never happened. No offence. Looking in this background, sex is not an illegal object to be achieved. In fact it is considered a sacred act and our Constitution proclaims to protect it.[47] But doing of this in essence a legal act, without fulfilling the procedural requirements of contract is not simply ignored by the State as it does in cases of such ignorance of procedural law in other private contracts. Nor the breach of the contract of marriage results in monetary compensation, like all the other breaches of contracts. Marriage does not fit into a contract, and sex into a lawful object.

In order to make sense, perhaps we should see sex and marriage from a fresh angle; from the angle of a license.

Even though Article 18 of the Constitution empowers the legislature to regulate only a ‘trade’ or a ‘profession’ by a licensing system,[48] people generally see Nikah Nama (marriage certificate) as a license to have sex and produce babies. Perhaps Pakistanis generally view sex as a trade and producing babies as a profession. Seeing marriage as a license is not that unreasonable after all. Marriage makes a lot of sense as a license to have sex and make babies. This means that sex is a state controlled act; it is allowed only with a permit (called marriage certificate) from the state, without which it is a crime, and you a criminal.

Licenses under the law are issued on the basis of proved qualifications. For instance, license to practice law is issued after proving that you have acquired the requisite legal education and done the initial practice under the supervision of a qualified legal practitioner. Similar is the case with license to practice medicine. License to practice law is issued under the Legal Practitioners’ Act,[49] while license to practice medicine is issued under the Medical Council Ordinance;[50] and both these laws lay down the qualifications which need to be proved before a license under these laws can be granted. But which law controls our marriages and what are the qualifications that this law requires before issuing this marriage-license?

The law defining and controlling our marriages is Islamic law or ‘Shariat’. The Shariat Application Act[51] in its section 2 says,

“Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.”

Thus unless legislature passes an enactment which over-rides Muslim Personal Law, Shariat is the applicable law. Just as Shariat does not require the registration of Nikah (marriage) but since Family Laws[52] makes it mandatory, it is required. A simple question; we can find the legislative enactments in the statute books published and maintained by the state, where does we find ‘Shariat’ or ‘Muslim Personal Law’?  Answer is not that simple; in the opinions of scholars. That’s true. And the shades of ambiguity multiply when you also take into consideration the fact that ‘Shariat’ for each sect of the Muslims is different and in any given case, ‘Personal Law’ of that particular sect will be applied.

That’s pretty messy. No wonder lawyers charge so much. So, after figuring out which law defines and controls our marriages we come back to our question of what are the legal qualifications for getting the marriage-license? Under our ‘Shariat’ or ‘Muslim Personal Law’ proof of being able to physically perform the act of sexual intercourse is not required, nor that of actually producing babies, nor even that of being able to maintain the wife. Even holding of a good moral character is not a pre-requisite for getting marriage-license. Interesting, but then what are actually the qualifications that are required? Before you can get the license to have sex and make babies you need to prove that you have attained the requisite age,[53] requisite faith,[54] legal capacity to get this license (unmarried if you want the license as a wife and married to a maximum of 3 women in case you applied for license as a husband)[55] and that you are not mad; although lunatics can legally get married through their guardians.[56] Pretty interesting.

Now let’s see how does law deal with the marriage culprits; those who violate the marriage-license law and make ‘unlicensed love’.

First is Rape. It is the case where a person has sex with a woman without her consent.[57] It is an outrageous violation of the marriage-license law and thus is dealt with strictly. On filing of complaint, police does not need a warrant from magistrate before arresting the accused and the punishment is anywhere from 10 years in jail to straight away death.[58] However, one interesting aspect of this law is that the offence of rape is ‘male’ specific. Section 375 of Pakistan Penal Code, 1860 clearly states that ‘A “man” is said to commit rape who has sexual intercourse with a “woman”…’ This means that this crime can only be committed by a man. A woman can never commit an offence of rape, even if she has sexual intercourse with a man without his consent and even against his will. So a man who has been raped by a woman has no legal remedy. Law does not recognize such an act as an offence. Any woman can do it with complete impunity. She can even claim that she has been allowed to do so by law! Now think about this, when a woman is raped by a man, the minimum punishment that the rapist gets is 10 years.[59] But when a man is raped by another man, the minimum punishment that the rapist gets is just 2 years.[60] Mathematically speaking, we can say that on the scale of 10, where a woman’s sexual sanctity is 10, a man has zero sexual sanctity as against a woman and a sexual sanctity of just 2 against another man.

So the scheme of our sexual law is that if a man has sexual intercourse with another man, he is booked for up to 10 years in prison under the offence of ‘unnatural offences’[61] and if he has an intercourse with a woman without her consent, he is booked for up to death under the offence of rape.[62] But if a woman has sexual intercourse with a man without his consent, she goes scot free and if she has sex with another woman, again she goes scot free!

So much for unlicensed sex against nature and without consent. Now something about the unlicensed-sex, pure and simple. Although Islam is very strict about singing, dancing and fornication, state had been historically taking liberal view on it.[63] However, with the orthodox interpretation of Islam getting dominance during the state sponsorship of Afghan Jihad against Soviet Union, illegal sex is being seen very strongly by the orthodox scholars.[64] Law is also strict about illicit sex. It says that whoever will have sex without first getting married can be sentenced to imprisonment for up to 5 years.[65] However, there is confusion here. Law talks about two types of un-licensed sex, fornication and adultery.[66]

Oxford English Dictionary[67] defines fornication as having sex with somebody that you are not married to while the same dictionary defines adultery as sex between a married person and somebody who is not their husband or wife.  Simply speaking fornication is unlicensed sex between an otherwise unmarried couple while adultery is unlicensed sex between a couple at least one of whom is married to someone else. Our criminal code defines fornication as an offence which is committed when a man and a woman not married to each other have sexual intercourse.[68] Adultery, on the other hand, is a crime which is committed when a person has sexual intercourse with a woman whom he knows to be the wife of another man.[69] It is clear that our law does not restrict the crime of fornication for an otherwise unmarried couple. The language of section 496-B[70] is clear, it says:

“A man and a woman not married to each other are said to commit fornication if they …… have sexual intercourse …...”

Whether both or any one of these accused is married or not is not a fact law is bothered about. If they are not married to each other, they are covered under this law. And punishment is meant for both the partners; subsection 2 of this provision says:

“Whoever commits fornication shall be punished with imprisonment……”

So far so good. Now let’s see the provision dealing with adultery. It is section 497[71] and says:

“Whoever has sexual intercourse with a person who is…..wife of another man…..is guilty of the offence of adultery, and shall be punished with imprisonment…..”

For the purposes of adultery, therefore, it does not matter if the man is married or not but woman has to be otherwise married to someone else. This generates the confusion because the case of unlicensed sex by a married woman has already been covered under the provision of fornication[72], then what is the use of this provision? There is more to come. It is clear from the plain reading of this provision that in the offence of adultery, woman is not a criminal and she cannot be punished. A woman is not punished in case of rape, although that is also an unlicensed sex, but there sexual intercourse is committed without her consent. Here however, she is the consenting party. But still, she is not liable to be punished. Why? This section is the original section which was enacted by the British Raj in 1860. It is said that it was thought that Indian women had no free-will and were practically the properties of their husbands. That’s why this provision of adultery also talks about the consent of the husband of the adulteress. It says:

“Whoever has sexual intercourse with a person who is….wife of another man, without the consent…..of that man….”

So conceptually speaking, it was enacted to punish a person (Adulterer) for violating rights over the property (wife) of a person (husband). I am not shocked because it was enacted more than a century and a half ago. Obviously the social structure and moral values of our society were not similar to what they are today. But what surprises me is the fact that this section[73] was deleted by the so-called Islamic regime of General Zia by virtue of Hudood Ordinance.[74] So section 497 was deleted in the year 1979. However, in the year 2006[75], it was again inserted back in the criminal code, as it is—that is, just as it was in the year 1860. Has our legislature reached the conclusion that contemporary Pakistani wife, who had acquired a free will and had become an independent citizen of the country in 1979, has once again become a property lacking any free will in 2006?

And by virtue of the same law[76] which re-inserted the old adultery provision, offence of fornication[77] was added. Now if a couple is charged for illicit sex where the woman is otherwise married, and they are booked under the offence of adultery, it will make the man liable for a prison sentence for up to 5 years while the woman will go scot free. The man will certainly protest as to why should the woman also not get punished as she was party in the crime as much as he was, and will ask the police, or the court, to book them under the provision of fornication[78] which will also be equally applicable and under which both the man and the woman will be liable for a prison sentence of up to 5 years. At this stage the woman will protest that when a provision of law, which is equally applicable in the case and in which her liberty is not hindered, is available, why should that provision be not applied to her?

I have no idea what the court, in such an eventuality will decide, and on what grounds? Certainly it will be confused. But more confusing thing at the moment is how can a law, a properly legislated law[79], which is drafted by the specialized draftsmen of law ministry, is then presented before the National Assembly of 332 elected representatives[80], who discuss and debate over it for days and weeks and voted upon, is then sent to the upper house, the Senate, consisting of 104 elected representatives[81] as well as technocrats, is again discussed and debated for days and weeks, and only then passed and sent for assent of the President, make such blunders?

Much of this mess that I have created above could have been cleaned up if, and only if, offence of Adultery[82] is simply removed from the statute book. This will leave an open field to the offence of fornication[83] to cover all cases of illicit sex, without any over-lappings and conflicts. To be honest, even otherwise, the law of fornication has been enacted quite progressively. In fact it has been enacted in a much more modern way than most of our criminal laws. Its procedure[84] categorically takes away all powers of arrest and investigation from police. So now, since the year 2006 of our lord, when the Protection of Women Act was passed, if a complaint regarding commission of fornication is lodged with the police, it cannot do anything, unless authorized by a court of law. [85] The law requires that keeping in view the dignity of man and privacy of home,[86] which is the fundamental right of everyone, court will not even entertain the complaint[87] regarding fornication unless such complainant and two-eye witnesses of the offence appear in the court in person and swear on oath that they saw the act of fornication with their own eyes.[88] If the court will find their statements reliable, it will issue summons to the accused to appear and defend their case—no police, no arrest.[89] However, if the Court does not find the initial statements of the complainant and his witnesses truthful, it will dismiss the Complaint straight away.[90] Not only this, but if the dismissing Court will find that the Complainant and the witnesses were knowingly bringing false charges of fornication, it can forthwith convict such Complainant and all his/her witnesses without any other proof and can send them to prison for up to 5 years.[91] This is a very effective tool to curb the misuse of the law and checking the coming up of false charges of fornication for settling private scores and defaming others.

A move for similar amendment in the blasphemy law,[92] prescribing up to death penalty for defiling the sacred name of the Holy Prophet Muhammad (Peace be upon him), a move which was meant to discourage the rising trend of misusing this provision to settle personal scores,[93] however, was rejected by the Council of Islamic Ideology.[94] Council of Islamic Ideology is a Constitutional body,[95] which is not only the ultimate arbiter of “Islamic-ness” of a proposed law[96] but is also responsible to act as the “Islamic mentor” of the legislatures.[97]

Economics of Marriage:

Problems of sex-with-men, sex-with-animals and sex-against-the-order-of-nature are not the only ‘sexual problems’ of our legal system. In the year 2012 a new section was added in the criminal code[98] which has criminalized the act of marriage with Quran. Haven’t we already seen that law criminalizes unnatural marriage? Not actually. Technically speaking, what we saw as crime is “unnatural sex”, not “unnatural marriage”. Thus our law does not criminalize any kind of marriage, not even a marriage with the ‘word of God’; until the year 2012. But the question is why would anyone marry the Holy Book? More than religion, this has to do with the economics; the economics of marriage.

Marrying their daughters and sisters with the Holy Book is a tradition followed in many feudal families of Pakistan.[99] More than marriage, this is a holy vow on the Holy Quran, forcefully extracted from the poor bride, of not to marry any one in her life time. Families enforce such a “marriage” on their girls in order to check seepage of their properties through inheritance, to the lineage of their future son-in-laws. Lineage and property are closely linked in our world view. Despite of the fact that Holy Christ had no father and our Holy Prophet (pbuh) had no male descendant, we insist that lineage runs through males; so inherited property should be distributed among sons only. But our faith poses challenge to our world view. Daughters also inherit property according to Islamic principles, to defeat which, we devised a tool—Marriage with Quran. This marriage ensures that the bride dies issue-less and thus whatever she inherits from her father, is ultimately inherited back by her brothers and their children. Finally, law made anyone facilitating such a marriage punishable with up to 7 years of imprisonment,[100]  a counter tool which is focused more on economic rights of women than restoration of Islamic ideals.

Devising of ways and means to swindle devolution of inheritance on daughters is an old age tradition, dowry being its one manifestation. Use of dowry to enable the newlywed couple start a household is understandable in the societies where marriages take place in early age. [101] However, this is not the only established use of this custom. Many a times, dowry functions as a pre-mortem inheritance to the bride.[102] This implies that in our culture, in order to combine the benefits of keeping the property within the lineage and of marrying off daughters, people give heavy dowries to their daughters in lieu of their future inheritance share. While doing so nature of inheritance and that of inheritor is kept in mind. Since marriage has made woman a “movable” member of the family, she only gets movable property; money, furniture, jewelry, etc, not land.[103]

Incidentally such a mode of restricting inheritance in certain communities has become an unbearable menace for many communities. The custom of giving dowry to daughters crossed all reasonable limits, especially for the class which would not have much to offer the bride in inheritance. Half a century ago uncontrolled limits of dowry became such a social evil that law had to be passed to curtail it. This law passed in the year 1976 provided a prison sentence of up to 6 months.[104] This punishment is meant for anyone who will give or receive dowry worth more than 5,000 rupees.[105] That’s true, the law says that dowry to a bride will not exceed an amount which is something like US dollars 50. Just to keep things in perspective, a locally made bi-cycle today costs more than that. The rampant violations of this law are a matter of ceremony. During the entire six months of winter season, thousands of marriages take place in Pakistan, most of which are celebrated with fan fare. This includes open, many a times publicly boasted, transfers of dowries worth hundreds of thousands, if not millions of rupees. But since a purchase receipt does not mention if it was issued against dowry purchase, nor people maintain accounts books of dowry, despite being an open secret, it is difficult to find records of dowries. However, it becomes an interesting matter when during or after divorce, a woman files case in the court for recovery of dowry articles. Literally in every case, the woman and her family members file affidavits and swear on oath in the witness box that they gave dowry worth millions of rupees. The courts, instead of punishing them with 6 months’ imprisonment, pass orders for recovery of the dowry (or part of it, depending on the evidence). In one such case, Lahore High Court while repelling the argument of the counsel for the groom that bride, which was demanding dowry worth hundreds of thousands could not have given it because of the legal restriction, held that “in spite of the restriction imposed in section 3[106] [of the Dowry and Bridal Gifts (Restriction) Act, 1976], a bride is the owner of the dowry and wari [gifts presented to bride from groom’s side] articles irrespective of their values and she is entitled to retain it forever and to claim its return or the value thereof, if the same is kept back by her husband or any other person.”[107] This is despite the fact that law calls for confiscation of any dowry beyond the legal limit.[108] Neither anyone was tried for violating the Dowry and Bridal Gifts (Restriction) Act, 1976 from the bride’s side nor from the groom’s side; neither before this judgment nor afterwards; just like thousands of such cases that are decided every month. To bring the open, public and blatant violations of this law even more apparent, another of its provisions restricts that the total expenditure on a marriage ceremony shall not exceed Rs. 2,500; which is equal to US dollars 25.[109] Traditionally, there are at least three marriage functions[110] which basically include dinner for the guests. The number of guests normally invited in marriages can be assessed from the capacity of the marriage halls, which, on average, caters for 500 guests.[111] In such like halls, the normal per head meal charges for a marriage guests is Rs. 2,000.[112] This means that if this law is followed, even the bride and groom cannot be served dinner on their wedding ceremony. I am not sure if the ceremonial and constant violations of this law should be more shocking or the unrealistic demands of it. But well, none is there; no one is shocked.

                                                                                                 

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[1] Daniel G. Amen, M.D., Making A Good Brain Great, Three Rivers Press, New York, 2005, 134-135.

[2] Jared Diamond, The Rise and Fall of the Third Chimpanzee, Vintage, 1992, 77.

[3] Will Durant, The Story of Civilization: 4, The Age of Faith, Simon and Schuster, 1950, 76.

[4] Bertrand Russell, Marriage and Morals, Routledge, 1929, Reprint 1991, 181.

[5] James Lull & Eduardo Neiva, The Language of Life: How communication Derives Human Evolution, Prometheus Books, 2012, 97.

[6] Al Gore, The Future, WH Allen, 2014, 132.

[7] Daniel Gilbert, Stumbling on Happiness, Vintage Books, 2007, 124.

[8] The Concise Oxford Dictionary of Current English, Clarendon Press, 9^th Edition, 1995.

[9] Pakistan Penal Code, 1860, section 496-B.

[10] Constitution of Islamic Republic of Pakistan, 1973, Article 2: Islam to be State Religion. Islam shall be the State religion of Pakistan.

[11] Muhammad Aftab Khan, Ph.D, Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 685.

[12] Pakistan Penal Code, 1860.

[13] Pakistan Penal Code, 1860, Section 294: Obscene Acts and Songs: Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b)sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

[14] Pakistan Penal Code, 1860, section 333: Itlaf-i-udw. Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-udw.

[15] Pakistan Penal Code, 1860, section 338-B: Isqat-i-Janin. Whoever, causes a woman with a child some of whose limbs or organs have been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, is said to cause Isqat-i-janin. Explanation. A woman who causes herself to miscarry is within the meaning of this section.

[16] Abbreviation for “First Information Report”, which is the jargon for the crime complaint lodged with the police under section 154 of the Code of Criminal Procedure, 1898.

[17] Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

[18] Hamid Khan, Constitutional and Political History of Pakistan, Oxford University Press, 2^nd Edition, 2009, 323.

[19] Taimur-ul-Hassan, The Performance of Press During Women Movement in Pakistan, South Asian Studies, A Research Journal of South Asian Studies, Vol. 25, No. 2, July-December 2010, 311 to 321, 314.

[20] Mohammed Hanif, A Case of Exploding Mangoes, Random House Inida, 2008, 32

[21] Qanun e Shahadat Order, 1984

[22] Qanun e Shahadat Order, 1984, Article 164: Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.

[23] A Full Bench of a Court is a bench consisting of three judges.

[24] Aman Ullah Vs. State, PLD 2009 SC 542, 543. “3. According to medico-legal examination of the prosecution namely, Mst. Gulshan Bibi, she was about 18 years of age at the time of occurrence; her hymen was found torn at multiple places which bled on touch and the vagina admitted two fingers but rightly and painfully. From this medical evidence, it is obvious that sexual inter-course had been freshly committed with the said lady and further that she was not a female of easy virtue and was not used to committing sexual intercourse. No reasons could be offered to us to explain the alleged substitution of Amanullah [bail] petitioner with the person who had actually committed the sexual intercourse with the said lady. According to the police file, the petitioner had been declared innocent and his discharge had been recommended only because the C.A.M.B. Forensic Services Laboratory had found, after the D.N.A. test, that the traces of semen found in the vaginal swabs of the prosecutrix were not those of Amanullah petitioner. Such-like reports of the so-called experts are only corroborative in nature and are required only when the ocular testimony is of a doubtful character. In the present case, as has been mentioned above, no reasons could be offered as to why the prosecutrix who had admittedly been subjected to sexual intercourse, should have spared the actual offender and should have, instead substituted the petitioner for him. In the circumstances, at least prima facie and for the purpose of this bail petition, it could not be said that the testimony offered by the prosecutrix could admit of any doubt.”

[25] Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 185: A divorced woman is allowed to use a vibrator to satisfy her sexual desire if it is the last resort instead of committing fornication.

[26] Station House Officer, the officer in-charge of a Police Station.

[27] Richard M. Lerner & Laurence Steinberg (Ed), Hand Book of Adolescent Psychology, John Wiley & Sons, Inc, 2^nd Ed, 2004, 194

[28] Pakistan Penal Code, 1860, section 377: Unnatural Offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this selection.

[29] 1,500 animal species practice homosexuality, October 23, 2006, www.news-medical.net/news/2006/10/23/1500-animal-species-practice-homosexuality.aspx, Accessed on 07^th March, 2015: “The most well-known homosexual animal is the dwarf chimpanzee, one of humanity’s closest relatives. The entire species is bisexual. Lions are also homosexual. Male lions often band together with their brothers to lead the pride. To ensure loyalty, they strengthen the bonds by often having sex with each other.”

[30] A larger bench is a bench of the court consisting of more than 3 judges.

[31] Sain Vs. The State, 2007 SCMR 698, 703: The offence consists of penetration by the penis into the anus, and the merest penetration suffices to establish the offence. Proof of ejaculation is not necessary for conviction.

[32] Muhammad Aftab Khan, Ph.D., Sex & Sexuality in Islam, Nashriyat, Lahore, 2006, 184.

[33]Oliver Wendell Holmes, The Common Law, The Belknap Press of Harvard University Press, 2009, 3

[34] Pakistan Penal Code, 1860, section 496-B.

[35] Pakistan Penal Code, 1860, section 497.

[36] Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a woman under circumstances……..

[37] Constitution of Pakistan, 1973, Article 25: Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent  the State from making any special provision for the protection of women and children.

[38] Constitution of Pakistan, 1973, Article 4: Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular: (a) no action detrimental to the life, liberty, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do.

[39] Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.

[40] The Concise Oxford Dictionary of Current English, Clarendon Press, Oxford, 9^th Edition, 1995 defined “fuck” as an act of sexual intercourse. However, before the next word, fuck-up, there is a section on usage, which says, “Although widely used in many sections of society, fuck is still generally considered to be one of the most offensive words in the English language. In discussion about bad language it is sometimes referred to euphemistically as the F-word.” However, this passage of usage is not there in Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press, 8^th Ed, 2010 which simply defines “fuck” as “to have sex with s[ome]b[ody].”

[41] Christopher M. Fairman, Fuck, Public Law and Legal Theory Working Paper Series No. 59, Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 39, The Ohio State University, Moritz, College of Law, March, 2006, 1-74, 11:

“Linguists studying fuck identify two distinctive words. Fuck1 means literally “to copulate.” It also encompasses figurative uses such as “to deceive.” Fuck2, however, has no intrinsic meaning at all. Rather, it is merely a word of offensive force that can be substituted in oaths for other swearwords or in maledictions.”

[42] The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 239: Definition of Marriage. Marriage (nikah) is defined to be a contract which has for its object the procreation and the legalizing of children.

[43]Contract Act, 1872, section 2. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: ….. (h) An agreement enforceable by law is a contract….

[44] Contract Act, 1872, section 2 (e): “Every promise and every set of promises, forming the consideration for each other, is an agreement.”

[45] Contract Act, 1872, section 10: All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in [Pakistan], and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

[46] Contract Act, 1872, section 73: When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation – In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.

Illustrations……..

[47] Constitution of Pakistan, 1973, Article 35: Protection of Family, etc. The State shall protect the marriage, the family, the mother and the child.

[48] Constitution of Pakistan, 1973, Article 18: Freedom of Trade, Business or Profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business:

Provided that nothing in this Article shall prevent:

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

[49] Legal Practitioners and Bar Councils Act, 1973.

[50] Medical and Dental Council Ordinance, 1962.

[51] The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962

[52] Muslim Family Laws Ordinance, 1961

[53] Child Marriage Restraint Act, 1929, section  2. Definitions. In this Act, unless there is anything repugnant in the subject or context, (a) “child” means a person who, if a male, is under 18 years of age, and if a female, is under 16 years of age.

[54] The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 248: Difference of Religion. (1) A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatoress or a fire-worshipper. A marriage, however, with an idolatoress or a fire-worshipper, is not void, but merely irregular. (2) A Muslim woman cannot contract a valid marriage except with a Muslim. She cannot contract a valid marriage even with a Kitabia, that is, a Christian or a Jew. A marriage, however, with a non-Muslim, whether he is, a Kitabi, that is, a Christian or a Jew, or a non-Kitabi, that is, an idolator or a fire-worshipper, is irregular, not void.

[55] The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 244: Number of Wives. A Muslim may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four; the marriage is not void, but merely irregular.

Section 245: Plurality of husbands. It is not lawful for a Muslim woman to have more than one

[56] Contract Act, 1872, section 11. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.

However, under Islamic Law a lunatic can also get married. The Right Honourable, Sir Dinshah Fardunji Mulla, Principles of Mahomedan Law, Revised by M. Hidayatullah, Mansoor Book House, Lahore, Reprint 2011, section 240: Capacity for marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

[57] Pakistan Penal Code, 1860, section 375: Rape. A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,--(i) against her will; (ii) without her consent; (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt, (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) with or without her consent when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

[58] Pakistan Penal Code, 1860, section 376: Punishment for rape. (1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine. (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.

[59] Pakistan Penal Code, 1860, section 377.

[60] Pakistan Penal Code, 1860, section 376.

[61] Pakistan Penal Code, 1860, section 377.

[62] Pakistan Penal Code, 1860, section 376.

[63] Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005,, 28: Orthodox Islam forbids singing and dancing on the grounds that it may lead to a loss of self-control and then to debauchery and fornication. The Mughals, the Muslim rulers who controlled large parts of India between the sixteenth and eighteenth centuries did not see entertainment this way. Dancing and singing were considered to be forms of refined culture, and patronage of the arts was a symbol of Mughal status.

[64] Louise Brown, The Dancing Girls of Lahore, Perfectbound, 2005, 64: Islam is very positive about sex, provided it takes place within marriage. The problem is that attraction between men and women is considered so inevitable and so uncontrollable that it will lead to chaos if it isn’t regulated. Separating the sexes is essential to prevent fornication and maintain social order. Men and women have to live in separate worlds.

[65] Pakistan Penal Code, 1860, section 496-B.

[66] Pakistan Penal Code, 1860, section 497.

[67] Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press, 8^th Ed, 2010.

[68] Pakistan Penal Code, 1860, section 496-B: Fornication. (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another. (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.

[69] Pakistan Penal Code, 1860, section 497: Adultery. Whoever has sexual intercourse with a person who is and who he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the shall wife shall not be punishable as an abettor.

[70] Pakistan Penal Code, 1860.

[71] Pakistan Penal Code, 1860.

[72] Pakistan Penal Code, section 496-B.

[73] Pakistan Penal Code, section 497.

[74] Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 19.

[75] Protection of Women (Criminal Laws Amendment) Act, 2006.

[76] Protection of Women (Criminal Laws Amendment) Act, 2006.

[77] Pakistan Penal Code, 1860, section 496-B.

[78] Pakistan Penal Code, 1860, section 496-B.

[79] Constitution of Islamic Republic of Pakistan, 1973, Article 70: Introduction and Passing of Bills. (1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and if the Bill is passed without amendment by the other House also, it shall be presented to the President for assent. (2) If a Bill transmitted to a House under clause (1) is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill with those amendments it shall be presented to the President for assent. (3) If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent. (4) In this Article and the succeeding provisions of the Constitution, “Federal Legislative List” means the Federal Legislative List in the Fourth Schedule.

[80] Constitution of Islamic Republic of Pakistan, 1973, Article 51.

[81] Constitution of Islamic Republic of Pakistan, 1973, Article 59.

[82] Pakistan Penal Code, 1860, section 497.

[83] Pakistan Penal Code, section 496-B.

[84] Criminal Procedure Code, 1898, section 203-C.

[85] Criminal Procedure Code, 1898, Schedule II, section 496-B, Column 3.

[86] Constitution of Islamic Republic of Pakistan, 1973, Article 14: Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

[87] Criminal Procedure Code, 1898, section 203-C (1): No Court shall take cognizance of an offence under section 496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction.

[88] Criminal Procedure Code, 1898, section 203-C (2):The Presiding Officer of a Court taking cognizance of an offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication.

[89] Criminal Procedure Code, 1898, section 203-C (4): If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused.

[90] Criminal Procedure Code, 1898, section 203-C (5): The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.

[91] Pakistan Penal Code, 1860, section 496-C: Punishment for false accusation of fornication. Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees:

Provided that a Presiding Officer of a Court dismissing a complaint under section 203-C of the Code of Criminal Procedure, 1898 and after providing the accused an opportunity to show cause if satisfied that an offence under this section has been committed shall not require any further proof and shall forthwith proceed to pass the sentence.

[92] Pakistan Penal Code, 1860, section 295-C: Use of derogatory remarks etc., in respect of the Holy Prophet. Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammd (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

[93] Gleanings, Into the Fiery Furnace: Christian Couple in Pakistan Burned for ‘Blasphemy’, November 6^th, 2014, www.christianitytoday.com/gleanings/2014/november/into-fiery-furnace-christians-pakistan-burned-blasphemy.html?paging=off, accessed on 7^th March, 2015.

[94] The Express Tribune, September 20, 2013, Advice to Legislature: No Need to Amend Blasphemy Laws, says CII, tribune.com.pk/story/606884/advice-to-legislature-no-need-to-amend-blasphemy-law-cii/, accessed on 7^th March, 2015.

[95] Constitution of Islamic Republic of Pakistan, 1973, Article 228: Composition, etc., of Islamic Council. (1) There shall be constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this Part referred to as the Islamic Council. (2) The Islamic Council shall consist of such members, being not less than eight and not more than twenty as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan.

[96] Constitution of Islamic Republic of Pakistan, 1973, Article 229: Reference by Majlis-e-Shoora (Parliament), etc., to Islamic Council. The President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam.

[97] Constitution of Islamic Republic of Pakistan, 1973, Article 230: Functions of the Islamic Council. (1) The functions of the Islamic Council shall be: (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether proposed law is or is not repugnant to the Injunctions of Islam.

[98] Pakistan Penal Code, 1860.

[99] Daily Times, March, 13, 2007,” Prominent families in Sindh and marriage to the Holy Quran.”

[100] Pakistan Penal Code, 1860, section 498-C: Prohibition of marriage with the Holy Quran. Whoever compels or arranges or facilitates the marriage of woman with the Holy Quran shall be punished with imprisonment of either description which may extend to seven years which shall not be less than three years and shall be liable to fine of five hundred thousand rupees. Explanation. Oath by a woman on Holy Quran to remain un-married for the rest of her life or, not to claim her share of inheritance shall be deemed to be marriage with the Holy Quran.

[101] Encyclopedia Britannica, Dowry, www.britannica.com/EBchecked/topic/170540/dowry, accessed on 2^nd March, 2015.

[102] Jack Goody, Stanely Jeyaraja Tambiah, Bridewealth and Dowry, Cambridge University Press, 1973, 1.

[103] Veena Talwar Oldenburg, Dowry Murder; The Imperial Origins of a Cultural Crime, Oxford University Press, 2002, 20.

[104] Dowry and Bridal Gifts (Restriction) Act, 1976, section 9: Penalty and procedure.- (1) Whoever, contravenes, or fails to comply with, any provision of this Act or the rules made thereunder, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provisions of this Act shall be forfeited to the Federal Government to be utilized for the marriage of poor girls in such a way as may be prescribed by rules made under this Act: Provided that if both the parents of a party to the marriage contravene, or fail to comply with, any provision of this Act or the rules made thereunder, action under this section shall be taken only against the father: Provided further that if the parent who contravenes, or fails to comply with, any provisions of this Act or the rules made thereunder, is a female, shall be punishable with fine only. (2) An offence punishable under this Act shall be triable only by a Family Court established under the West Pakistan Family Courts Act, 1964 (W.P. Act No. XXXV of 1964). (3) No Family Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by, or under the authority of, the Deputy Commissioner within nine months from the date of nikah, and if rukhsati takes place some time after nikah, from the date of such rukhsati. (4) While trying an offence punishable under this Act, a Family Court shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial off offences by Magistrates.

[105] Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. - (1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.
Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such rukhsati.

[106]Dowry and Bridal Gifts (Restriction) Act, 1976, section 3. Restriction on dowry, presents and bridal gifts. - (1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees.
Explanation. The ceiling of five thousand rupees specified in this sub-section does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given. (2) No dowry, bridal gifts or presents may be given before or after six months of nikah and if rukhsati takes place some time after nikah, after six months of such rukhsati.

[107] Gul Sher Vs. Mst. Maryam Sultana, 2011 YLR 1000, para-5.

[108] Dowry and Bridal Gifts (Restriction) Act, 1976, section 9.

[109] Dowry and Bridal Gifts (Restriction) Act, 1976, section 6. Expenditure on marriage. - The total expenditure on a marriage, excluding the value of dowry, bridal gifts and presents, but including the expenses on mehndi, baarat and valima, incurred by or on behalf of either party to the marriage shall not exceed two thousand and five hundred rupees. 

[110] Mehndi, Baraat and Walima.

[111] www.hotelandhalls.com/shalimar-marriage-hall-wah-cantt/, accessed on 2^nd of March, 2015.

[112] Web address: he.com.pk/featured-posts/best-marriage-banquet-halls-in-lahore-for-wedding-rates-menu-/2, accessed on 2^nd of March, 2015.