On Nov. 22, 2022, the Federal Shariat Court (FSC) of Pakistan issued a judgment determining that no provision of the Punjab Protection of Women against Violence Act, 2016, a law enacted by the Provincial Assembly of the Punjab, is “against the injunctions of Islam as laid down in the Holy Quran and Sunnah.”
Under article 203D(1) of the Constitution of Pakistan, the FSC, when petitioned by a Pakistani citizen, the federal government, or a provincial government, has the power and jurisdiction to decide whether any law or provision of law is “repugnant” to Islamic law (“injunctions of Islam”) as laid down in the Quran, the central religious text of Islam, and the Sunnah, the traditions and practices of the Prophet Muhammad. Any law or provision held to be repugnant by the court ceases to have effect and the government must take steps to amend the law or provision.
Judgment of the Court
Several petitioners have challenged various provisions of the Punjab Protection of Women against Violence Act, 2016 on the grounds, among others, that it is “gender biased” and detrimental to Pakistan’s “family system.” After reviewing the divergent pleadings and arguments of the parties, the court formulated six questions as “points of determinations”:
- Whether a woman has the right to access to justice against her family members according to the injunction of Islam, especially against her husband if she is a victim of “domestic violence.
- Whether the impugned law is discriminatory against males, as it talks about the rights of females only, and hence against the injunctions of Islam.
- Whether the impugned act would devastate the family system of Pakistan and hence be against the injunctions of Islam.
- Whether a husband is permitted to commit “domestic violence”’ against his wife according to the injunctions of Islam.
- Whether the procedure laid down in the impugned act is against the injunctions of Islam.
- Whether making any male person wear a GPS tracker is against the injunctions of Islam. (FSC Judgment para. 11.)
On the first point, the court held that the petitioners’ assertions that a woman “has no right to complain against her husband” and that the right to file a domestic violence complaint against her husband would “devastate the family system” are absurd because they “have nothing to do with Islam.” The provisions in the law in which women are provided the right to access to justice are also “not against the injunctions of Islam.” (Para. 13.) The court also stated that the law is not against men as is portrayed by the petitioners but “rather it is against the perpetrator of domestic violence, be it male or female” and that the “purpose and the scope of the impugned law, as stated in its preamble, is in accordance to the injunctions of Islam.” (Para. 14.) The court also argued that
[a]ccording to the Sunnah and the Ahadith [transmitted narrations] of the Prophet (SAW) domestic violence is not permissible in Islam. Hence, the term ‘domestic violence’ as defined in the Impugned Act is in accordance with the injunctions of Islam, therefore, the husband of a woman is not allowed to commit the crime of domestic violence against his wife in any form and manner. (Para. 25.)
On the question of a male person wearing a GPS tracker, the court held that
[t]he use of new and latest technology to protect the life of any person is very much in accordance with the Shariah, rather it is the preferable course to adopt, because giving protection to life of any person is one of the primary goals of Shariah, hence adopting any means possible and available are permissible according to the injunctions of Islam. According to the principle of Maqasid al-Sharia (رشیعہ مقاصد) i.e. goals of sharia, the protection of life, Hifz ul-Nafs has priority over any other right including the likelihood or risk of causing indignity to any alleged criminal person. (Para. 33.)
In conclusion, the court dismissed all the petitions, holding that “[n]o provision of the impugned Act is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW).” (Para. 36.) The court also commended the work of the Violence Against Women Center (VAWC) in the city of Multan, which was established under the act, and directed the provincial government to “ensure the proper implementation of this law and to further roll out this law in each and every district of the Punjab.” The court also directed that a “compliance report of the implementation and roll out of the Punjab Protection of Women against Violence Act, 2016 … in the entire Province be submitted to this Court.” (Para. 37.)
Tariq Ahmad, Law Library of Congress
January 26, 2023
Read more Global Legal Monitor articles.