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Women and property

Women and property

Women and property

By: RAFIA ZAKARIA

It was a story of one woman and two men, each one alleging that she was married to him.

There were two accounts and two marriage contracts. The first man, Mohammad Tariq, said that he had married the woman, 28-year-old Naseem Akhtar, on Dec 25 last year. The second man, Mohammad Imran Khan, said that he had married the same woman on May 14. The woman herself said that she had only married Mr Tariq and never Mr Khan. Her father, Ali Mohammad, corroborated his daughter’s claim that she was married only to Mr Tariq.

Fed up with Mr Khan’s claim that he was married to her, Ms Akhtar filed a jactitation suit. Under Pakistani law, the jactitation cause of action is available to anyone who faces another person wrongfully alleging that he is married to him or her. Under a jactitation lawsuit, the defendant (the person accused of making a wrongful claim of marriage) can defend themselves in three ways: they can deny that they ever made a claim of marriage; they can say that the allegations are not false (that the marriage actually exists); or they can assert that the other party actually consented or acquiesced to making the claims of a marital relationship.

In this case, Ms Akhtar filed her suit against what she maintained were Mr Khan’s false claims of marriage on June 26 in the family court of Sillanwali, Sargodha district. While the suit was pending, she lived at her father’s residence.

Before the suit for jactitation of marriage could be decided by the family court, an annoyed Mr Khan filed his own lawsuit. In a habeas corpus petition at the Lahore High Court (LHC), he alleged that it was unfair that Ms Akhtar was still being permitted to live at her father’s residence. The petition, therefore, sought to recover the custody of Ms Akhtar from her father. Implicit in that allegation was the claim that since Ms Akhtar’s father was not a neutral party in the case (he was supporting the claim that the position being maintained by Mr Khan was false), Ms Akhtar should not be allowed to stay with him.

The LHC heard Mr Khan’s petition on July 4. At issue was whether she should be permitted to stay at her father’s house while the matter of who she was really married to was still pending in the Sargodha court. The LHC ruled that because the court in Sargodha had not yet ruled on the jactitation case, Ms Akhtar must go and live at the Darul Aman shelter instead of her father’s house until a determination was made regarding which of the two marriages (and marriage documents) was authentic. Following the decision, Ms Akhtar was forced to leave her father’s home and go live at the Darul Aman shelter indefinitely.

On her behalf, her lawyers filed an appeal with the Supreme Court on the issue of whether the LHC had been correct in making Ms Akhtar leave her father’s house.

That was the long and complex story of how the case ended up before the SC, with Justices Asif Saeed Khosa and Ijaz Ahmed Chaudhry presiding. A judgment was issued following a hearing on July 19. Vacating the judgment of the LHC, the SC held that the latter had misjudged the use of habeas petitions in the case. The purpose of habeas, the higher court clarified, was to provide relief to a person whose liberty has been curtailed — instead of the opposite. In a terse decision, the SC not only vacated the existing order, leaving Ms Akhtar free to return to her father’s home as she wished, but also warned against the LHC’s excessive moralising which used the possibility of wrongdoing to sequester the woman at the centre of the issue. A grown woman, the SC ruled, cannot be subjected to such a restriction of her liberty.

The twists and turns of the case and the allegations and counter-allegations of its legal history provide a picture of the conundrums placed before courts when personal relationships such as marriage go awry. Foremost among these is the challenge of determining legal truths while also respecting personal choice. On the one hand is the issue of who Ms Akhtar was legally married to.

On the surface, that issue should seem easily resolved by simply listening to her own testimony regarding the authenticity of her marriage to one party. However, since marriage is also a legal relationship with consequences for property division, documentary proof must be considered before such dispensations are made. Actual truths can be told and witnessed but legal truths are created through the court record, through the admission of evidence and restricted by its rules.

At the same time, it must also be remembered that there is a thin line between respecting the material consequences of marital contracts and considering one of the parties as disputed property to be put away in a neutral place.

Courts everywhere are swamped, and because of that they often attempt, through orders and injunctions, to stop time — that is, prevent matters from proceeding in either direction — until they can reach a decision. In this case, the SC was correct to point out that the effort to do so was an unjustifiable impingement on the freedom of an adult female. Hence, the legal question in the case was answered.

What remains untouched is the sociological concept of female freedom reflected in the facts of the case, where until the intervention of the highest court in the land, few distinctions are visible between women and property.

The writer is an attorney teaching constitutional law and political philosophy. rafia.zakaria@gmail.com

Dawn

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