Zina and court marriage in Pakistan:
The court observed that the
accused was subjected to rape and was a victim, "never a consenting
party" to Zina after court marriage in Pakistan. Legal assistance to women
prisoners is rare, even where they are granted bail by the courts; they are
handicapped by not being able to come up with the required surety. At times,
courts have also ruled that surety can only be furnished by a close male
relative of the prisoner. This virtually deprives her of the right to bail
particularly where the pursuers are family members. For criminal liability
under qazf, Zina, and rape a girl is considered an adult at the age of 16 or
when she attains puberty, which can be as early as 10 or 11 years old for court marriage in
Pakistan. For boys, the age is fixed at 1o or when puberty.
Offences against Property Ordinance and the Prohibition Order:
Under the Offences against
Property Ordinance and the Prohibition Order, the age for an adult is 18 or
puberty. Since a female child attains puberty at an earlier age, she becomes
criminally liable sooner than a male child, this is ironic. The evidence of a
woman is not accepted for awarding hadd punishment because a woman is
considered deficient in the comprehension of such matters, yet for the
undergoing of punishment herself, even a 10 or 11-year-old is considered grown
up enough to receive the full measure of it. Even otherwise, physical maturity
has no nexus with mental development a double standard is thus observed only to
ensure that gender discrimination operates adversely for the woman in each
case. While the ordinary penal provisions in the law make exemptions for
offenses committed by children, the Hudood Ordinances have no such provision.
According to Section 82 of the Pakistan Penal Code 1860:
Section 82 of the Pakistan Penal
Code 1860 states that nothing would be an offense if it is done by a child
under seven years of age. Section 83 of the Code provides immunity to children
between the ages of 7 and 12 years if they do not have sufficient maturity of understanding"
of the nature and consequences of their conduct. Besides, in the past, all
children fewer than 14 suffering sexual abuse were presumed to have been raped
since any consent of the victim in such a matter, even if pleaded, was
considered immaterial in the case of a child.
Possible Efforts to Curb the Zina Cases:
Now children of any age can be
convicted of rape or Zina after court marriage in Pakistan. And "consent
can be used both in mitigation of the offender's crime and to charge the child
victim with the crime of Zina.
However, there has been a fortunate recent development where the Supreme Court
has held that "consent" can only be covered if given by a person who is
capable to give such consent by this definition of Zina-bil-jabr." In the
case referred, the victim of rape was 12 years of age. It is yet to be seen
what minimum age the superior courts will deem appropriate for legally
recognized consent for court marriage in Pakistan. Therefore, sexual intercourse committed with
a non-adult girl shall always be covered. The Pakistan Penal Code had provided
for punishment of a husband for having sex with a minor wife. His punishment in
case of a wife less than 12 years of age was transportation or 10 years of
imprisonment and a fine, and in case of a wife above that age it was imprisonment
for two years The Zina Ordinance does not recognize that offense any longer.