Women and violence

While 'zina' covers rape, adultery and fornication the ordinance made radical difference to the law relating to these acts. Under the Penal Code women could not be charged with rape, only men could be punished for it. A child under 14 subjected to sexual intercourse was presumed to be raped...This regime was based on an assessment of the disadvantaged status of women made by the authors of the penal code in the first half of the 19th century...

The condition of women had not changed materially by 1979, in a large part of Pakistan, but General Zia ul Haq had no concern for this reality. Over the years the Zina ordinance has been an instrument of oppressing women. The main grounds are: Rape is extremely difficult to prove because the crime is not committed in the presence of four adult Muslims of Unimpeachable integrity who are required as witnesses to confirm the rape. At the same time a woman complaining of rape is presumed to have confessed to illicit sex, and if she gets pregnant that is held as absolute proof of her crime. As a result a large number of women have suffered imprisonment for failing to establish their case against rapists.

Instances of the abuse of this law are legion. The Zina Ordinance has been employed by men to prosecute their divorced wives and by parents of girls who marry against their wishes. In the rural areas generally divorces are verbal affairs. In many cases when divorced women take new husbands the former spouses have gone to the police and courts to deny divorce and accuse women of living in adultery. In cases of women entering into wedlock against parents ('guardians') wishes, the latter have initiated proceedings against them, denying their marriages and even forging documents...

Every year such cases come up before superior courts and in many cases the police have been found to be in collusion with complainants...Since marital rape is no longer an offence the victims can have no redress. This was demonstrated in a case which came up before the Lahore High Court. A 13-year-old girl appeared in the court. The effects of violence committed by her husband were visible all over her body but the court declined to intervene.

The ordinance has reinforced the anti-women biases of the judiciary...There is the indefensible provision of the Zina Ordinance which prescribes the punishment of stoning to death for adultery. . The provision was made on the basis that Islam provides for this punishment...As long as the law exists in its present form the sentence of stoning to death will continue to be made under Islamic law.

The question today is: what does a society do if a law is found discriminatory, oppressive and unjust? A just society will critically examine the legislation and remove the possibilities of injustice or repeal the law if it cannot be reformed. This has not happened in the case of the Zina Ordinance...Ample evidence is available to show that the Hudood laws do not represent a consensus of Islamic scholars, that they have been consistently abused, and that the punishments prescribed are contrary to contemporary values of justice. But in the face of all this evidence Pakistan remains deaf to the call for repeal of the Zina ordinances: this cuts deeper than the enormity embodied in these unjust instruments carried out in the name of Islam."