1

By
Tipu Salman Makhdoom
Advocate Supreme Court of Pakistan

CHAPTER 1
PASSIONATE LEGALITIES OF MARRIAGE

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

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

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 mens 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, biologys
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 males2 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
2

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

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 actuallygenetically
theirs. This resulted in creation of such religious morality and social
norms which inculcated deep rooted fear in womens 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

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

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.

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
4

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

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.

Daniel Gilbert, Stumbling on Happiness, Vintage Books, 2007, 124.

Oxford English Dictionary8 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
8

The Concise Oxford Dictionary of Current English, Clarendon Press, 9 th Edition, 1995.

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, lets 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
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.

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 cant be considered abnormal. Crimes like
Itlaf-i-udw14 which in fact is amputation and is punishable with up
to 10 years prison sentence, or Isqat-i-janin15 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

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.

crime

of

consequencea

by-product

crimean

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 FIR16 for the rape of her
daughter against the landlord and his son. What turned out under
the Islamic laws17 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 Safias case was
later reviewed and she too was acquitted.19 I think Safia will definitely
like this beautiful literary description of Zias hotly contested and
aggressively out-poured piousness:
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.

10

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 didnt go beyond parroting what he had heard
from the next mullah. A mullah without a beard, a mullah
in a four-star generals 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. Its a
common experience of lawyers that reading the plain language of
law, which itself is often quite obscure and sometimes even selfcontradictory, 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
20

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

11

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
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.

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
24

12

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 conductingor 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

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.

13

wash-room at nightalone of course. It seems that I actually have

some freedom.
So teenagers in my country (and also non-teens) can masturbate
without fear of Chappaa 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 cant have sex with his or her pet, no matter how loveydovey 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
27

Richard M. Lerner & Laurence Steinberg (Ed), Hand Book of Adolescent Psychology, John Wiley & Sons, Inc, 2nd
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.

14

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 samesex 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

15

homosexuality regularly.29 But courts have crystallized this Hegelian

law. A larger bench30 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 doesnt 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?
29

1,500 animal species practice homosexuality, October 23, 2006, www.news-medical.net/news/2006/10/23/1500animal-species-practice-homosexuality.aspx, Accessed on 07th March, 2015: The most well-known homosexual
animal is the dwarf chimpanzee, one of humanitys 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.

16

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 its 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

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..

17

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 nothere cannot be, by the
very definition of itpenetration 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.

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.

18

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 dont, and they are normally referred to
psychologists for being so unnatural! It seems even the biologicalpsychological

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 Dont 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

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.
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 Learners Dictionary of Current English,
Oxford University Press, 8th Ed, 2010 which simply defines fuck as to have sex with s[ome]b[ody].
40

19

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.

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

20

(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
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 nonperformance of the contract must be taken into account.
Illustrations..

21

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
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.

22

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 Act51 in its section 2 says,

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

23

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 Laws52
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.
Thats 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.
Thats pretty messy. No wonder lawyers charge so much. So, after
figuring out which law defines and controls our marriages we come
52

Muslim Family Laws Ordinance, 1961

24

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 marriagelicense. 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

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

25

are not mad; although lunatics can legally get married through their
guardians.56 Pretty interesting.
Now lets 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 marriagelicense 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
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 twentyfive 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.

26

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 womans 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 offences61 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!

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.

27

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 unlicensed 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

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 isnt 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 Learners Dictionary of Current English, Oxford University Press, 8 th Ed, 2010.

28

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-B70
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:
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.

29

Whoever commits fornication shall be punished with

imprisonment
So far so good. Now lets see the provision dealing with adultery. It is
section 49771 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. Thats
71

Pakistan Penal Code, 1860.

72

Pakistan Penal Code, section 496-B.

30

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 section73 was deleted by the socalled Islamic regime of General Zia by virtue of Hudood
Ordinance.74 So section 497 was deleted in the year 1979. However,
in the year 200675, it was again inserted back in the criminal code, as
it isthat 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?

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.

31

And by virtue of the same law76 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 fornication78 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 law79, which is drafted by the specialized draftsmen of law
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

32

ministry, is then presented before the National Assembly of 332

elected representatives80, 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 Adultery82 is simply removed
from the statute book. This will leave an open field to the offence of
fornication83 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
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.

33

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 caseno 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

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.

34

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

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

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 7th 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.

35

only the ultimate arbiter of Islamic-ness of a proposed law96 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-theorder-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.
Havent 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,
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.

36

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-inlaws. 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 toolMarriage 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

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.

37

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
101

Encyclopedia Britannica, Dowry, www.britannica.com/EBchecked/topic/170540/dowry, accessed on 2nd 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

38

anyone who will give or receive dowry worth more than 5,000
rupees. 105 Thats 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
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.

39

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 3106 [of the
Dowry and Bridal Gifts (Restriction) Act, 1976], a bride is the owner of
the dowry and wari [gifts presented to bride from grooms 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 brides side nor from the grooms
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,
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.

40

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

functions110 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.

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 2nd of March, 2015.

112

Web address: he.com.pk/featured-posts/best-marriage-banquet-halls-in-lahore-for-wedding-rates-menu-/2,

accessed on 2nd of March, 2015.