As hundreds of women reportedly languish in jail for marrying without the consent of their guardians, in a major ruling this week, the Supreme Court of Pakistan has decided to examine the constitutional and religious validity of such marriages.
Significantly, the court reserved judgment in an appeal by Muhammad Iqbal challenging an earlier decision of the Lahore High Court declaring void his marriage with Shabina Zafar.
Iqbal and Shabina got married of their own free will on June 25, 1996. Four days later, Shabina's father lodged a case with the police, accusing the couple of adultery under Pakistan's draconian Hudood ordinance.
The couple's appeal in the High Court brought a ruling that the marriage was void because Muslim women cannot marry without the consent of their guardians. In 1977, Iqbal moved the apex court against the High Court decision.
While that case drags on, a division bench of the Sindh High Court asked for the names of police officials holding another couple, Balakh Sher Mahar and Shaista Almani, in custody.
The court ordered the investigating officers to return on November 18 with a complete report of cases registered against the two, ordering that their safety should be ensured.
Mahar and Shaista, both in their 20s, hail from a remote Pakistan district where they had married against the wishes of their respective families. They were arrested by the police after fleeing to the southern city of Karachi.
"I have committed no crime. I just married according to Islamic injunctions. Still they want to kill me," cried Shaista, when she appeared in the court. "God will help us, we have done nothing wrong," she said.
A statement issued by the Joint Action Committee (JAC) for People's Rights (an alliance of over a dozen NGOs working for human rights and women's rights), says the couple's life is under threat.
"Tribal chiefs have assigned dozens of armed tribesmen from their area to hunt down the couple," adds the statement. It demands the government take action against the threatening parties.
Prominent lawyer and former chairperson of the Human Rights Commission of Pakistan, Asma Jehangir says the federal Shariat Court, a constitutional court authorized to define laws in the light of Islam, had ruled that a guardian's consent is not required for marriage.
"The concept is neither legal nor feasible. It is ridiculous to impose a condition of consultation on a woman of 40 who wants to marry a person of her free will," she remarks.
But Riazul Hasan Gillani, an expert in Islamic jurisprudence, says the judgment of the Shariat Court is defective as the question of a marriage's validity does not come within its purview, but under Muslim Personal Law.
He adds that in any religion, runaway marriages are performed by clerics unless the consent of the guardian is obtained. "Such marriages would give rise to moral anarchy in our society," fears Gillani.
But Justice Karamat Nazir Bhandari, one of the members of the bench hearing the appeal, retorts that the Shariat Court had decided the issue conclusively, and reopening the case would be tantamount to creating judicial anarchy.
Attorney General Makhdoom Ali Khan also disagrees with Gillani, citing Article 203G of the Constitution, which says the judgment of the Shariat Court is final and binding on all subsidiary courts -- including High Courts.
"The law relating to wali (guardian) is not governed by any statutory law and only the federal Shariat Court can define it," he asserts categorically.
Ms Jehangir is also counsel for Saima Waheed, who married Arshad Ahmad without the consent of her father, Maulana Abdul Waheed Rokri.
The couple, now living in Norway, have placed on court record an affidavit stating Saima's father wished to marry her to his business partner, a Saudi Sheikh 25 years older than her, for financial benefits.
When she refused, her father tried to get her engaged to another person of his choice. He said that as her guardian, he did not need her consent to marry ve her to anyone.
Saima says Arshad, whom she liked, had proposed to her twice through his parents. She says after marrying Arshad, she returned to her parental home.
According to Saima, when her father came to know about the marriage, he beat her up severely, locking her up in a room for one month before she managed to contact Asma Jehangir.
Lawyer Furrakh Rehman holds that contrary to the Constitutional right to marry by free will, state institutions, particularly the police, often deter and arrest couples and brutalize them.
In most of the cases, especially if the family happens to be influential, women are subjected to torture to make them change their statements.
"The police take advantage of the existing controversial and discriminatory laws against women to victimize the couples. Usually, police register the case under the Hudood ordinance, arresting the married couples on charges of adultery," he says.
Lawyer and social activist, Liaquat Bhatti, feels the government must share the blame. "Unfortunately, even the rulers are not willing to accept this basic human right (to marry of one's own free will)," he points out.
"There is also a need to create awareness regarding such issues where even religious leaders can play an important role. It should be highlighted that Islam allows marriage by free will and choice, and that it is not a crime," he stresses.