It is material to caption here that ‘domestic violence’ as targeting the weakest of society i.e women and infirm old (parents) has been increasing abnormally.
The question of law rises as:-
“Whether an act of violence on a housewife by husband during continuity of marital ties is justified?
The answer is “No”.
“Whether there is any legislation so as to accommodate such a driven out house-wife?
Despite changing and developing the status of a woman from daughter to wife and wife to mother, she has been assured of her maintenance by the men regardless of his status as father; brother; husband or son being capable of earning.
This has been the reason that every touch-stone of measuring “respect” of a man has not been attached to his poverty or wealth but as stated by the Holy Prophet PBUH that:
“Among you the most respectable is the one who respects women and the most disrespectful is the one who disrespects the women”
The Holy Prophet also said
“It is the generous (in character) who is good to women and it is the wicked who insults them”.
One must remember that when a woman agrees to part with her status as daughter so as to step into status as wife, she relieves her father/brother from her maintenance/care, which duty is presumed to have been taken by the man being husband, once he accepts her in her Nikah.
Such an agreement not only requires the husband to maintain her but to give due respect to the wife. Respect shall always include the dignity of woman and if she is compelled to step out on ‘road’ certainly certain privileges, which she in all circumstances enjoys, shall stand prejudiced.
It is also divinely instructed that:-
“And live with them honourably” (Al-Nisaa 4:19)
It may well be added that driving a woman out of the house would certainly expose her to “Namahrams” who otherwise are not permitted to come in contact with a “woman”.
If a man does not legally part with his status as husband, he legally is believed to continue discharging all his obligations which he owned at the time of Nikah/marriage.
The term “maintenance” would never find its true meaning by throwing some money at her or expecting her parents to take care of her but it shall always include all which are necessary to complete the term “life”.
However, this shall never give any undue advantage to woman because such obligation is well balanced:
“Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him” (al-Talaaq 65:7)
The accommodation is a necessary part of the maintenance, hence if a man for any reason wants a temporary separation, he is not expected to deprive her of any right which does include accommodation.
It may be added that divine advice for a ‘man’ (husband) even while divorcing his wife is:
“Lodge them (divorced women) where you dwell, according to your means” (al-Talaaq 65:6)
However, it is an irony that we experience such incidents on a regular basis which the man dares to do while wrongly interpreting certain privileges, given to man only.
Keeping above in view, it must be added that since the “state” has been given the ultimate status of “guardian” therefore, if there is any such infringements then it is the state which should be available thereby ensuring temporary arrangement couple with a complete mechanism.
No law allows one to become victim of cruelty merely for the reason of his/her being a women, child, old aged and infirm rather directs all relations such as husband, and son of an old aged and infirm parent to show love at such time of their life by ensuring all privileges of life to them.
This has always been the divine direction in all religion and expectation from every civilized culture and society.
It is enacted to provide protection to the weakest class of society i.e ‘women and children” as, normally, we are carrying a presumption of living a “male dominant society” where aggrieved even does not dare to tell about “domestic violence” because of threats of being abandoned or dispossessed/removed from household.
One of the aims of the law is also to ensure immediate interim relief to an aggrieved from being dispossessed/removed from household but also:
Couple with direction to pay monetary relief to the person aggrieved within the period specified, as directed in accordance with law.
Accordingly, a sail even cursory to the relevant Articles of Constitution of Pakistan delivers that:
The continuity of the poor status of women in our society reflects complete negation of legislation with regard to women laws, aimed at achieving the desired ‘object’.
The scope of Women in Distress and Detention Fund Act, 1996 was aimed to ‘rehabilitate’ by providing legal assistance, jobs and shelter even to those women who are:
Our claim of being civilized society; dictates of pro-women laws and even decrees of Shariah should have eliminated all said evils and there should have remained no single custom or usage degrading/lowering the women or depriving their guaranteed rights to have a fair trial against any charge (allegation) but details as given above reflects different scenario that:
is routine practice particularly in the backward area of certain regions, therefore judicial propriety demands to examine this issue seriously with a view to ensure strict application of law and to curb these illegal activities.
Most of the offences against women are the result of so- called custom or usage which allow holding of ‘JIRGAs’ or illegal and inhuman decisions taken in the name of ‘Ghairat’ etc.
The women are considered as true and complete owners of their respective property which they either receive as a result of inheritance or as dower, dowry or gift.
The woman does find her entitlement in law of inheritance and Islam does not recognize any excuse to exclude the woman from her such right. The Holy Quran dictates that:
“Unto men (of the family) belongs a share of that which Parents and near kindred leave, and unto women a share of that which parents and near kindred leave, whether it be a little or much – a determinate share.” [Noble Quran 4.7].
The men have no right to part a woman from her own belonging or property and even the Constitution guarantees such protection as is evident from:
Article 2(a): no action, detrimental to the life, liberty, body, reputation or property of any person, shall be taken except ‘in accordance with law’;
Article 14 of Constitution of Pakistan ensures ‘dignity’ and ‘privacy of a home’ as inviolable. Suffice to say that though the word ‘man’ is used in this Article yet the protection thereof cannot be confined to the ‘man’ because ‘dignity’ is also inviolable for women.
It may be noted here that every ‘society/community’ may have its own rituals; traditions and other customs to lead the life but that should not in any way be in conflict with dictates of laws of the land.
The society shall have to honour the laws of land so as to let the sense of “good governance” prevails as is demand of Article-5 of Constitution of Pakistan, 1973, which reads as: Article 5. Loyalty to the State and obedience to Constitution and law.-
The above context also demands a reference to Article-8 of the Constitution which reads as:-
Article 8. Laws inconsistent with or in derogation of Fundamental rights to be void.–
‘DARUL-AMAN’ were notified in certain divisions by the Government of Pakistan which was issued with an object:
There can be no concept of safety and rehabilitation unless all related departments are in coordination with each other.
The ‘Dar-ul-Aman’ guidelines specifically speak of the active role of the ‘Social Welfare Department’, District Administration, District Police and NGOs.
Since it is the responsibility of the State to provide ‘security’ at the gross root level hence the establishment of ‘Dar-ul-Aman’ was to be established at each District.
The law defines domestic violence as ‘all acts of physical, emotional, psychological, sexual and economic abuse committed by a respondent against women, children, vulnerable persons, or any other person with whom the respondent is or has been in a domestic relationship that causes fear, physical or psychological harm to the aggrieved person.’
It includes, but is not limited to, acts such as repeated exhibition of possessiveness or jealousy which lead to invasion of privacy, liberty, integrity and security, threats of divorce or second marriage on baseless accusations or infertility, willful or negligent abandonment, stalking, harassment, or compelling the wife to cohabit with anybody other than the husband.
Most fundamentally, it also criminalizes the act of humiliation and false allegation on the character of the female or any member of the shared households, as well as intentional deprivation of economic or financial resources or hindrance to access of such resources which the aggrieved person is entitled to under law.
The act of domestic violence [if the offense committed does not fall under the Pakistan Penal Code] shall be punishable with imprisonment of maximum three years and minimum six months, depending on the gravity of the crime committed. According to the law, if an offence falling under the PPC is committed in a domestic relationship, the crime shall be punishable as under the PPC.
A fine ranging from Rs20,000 to Rs100,000 would also be imposed on the perpetrator of domestic violence, that would be paid as compensation to the aggrieved person. In case of default in payment of fine, the perpetrator may be awarded three months imprisonment. The Bill also envisages the creation of a Protection Committee to assist the aggrieved person and process his/her application in court.