“Is there anyone who can ensure delivery of justice to her in her life,” asked 80-year-old bed-confined Dr Saeeda Sultan when talking to the Express Tribune from Peshawar? “I need justice. I need justice, I don’t have the power to challenge influential opponents against influential opponents for their denial of my genuine right of dower (Haq Mehr).”
It took 51 years of waiting for an 80-year-old Dr Sultan to be heard and relieved from the disgrace of being denied her fundamental right by the system, which has no space for the weak and marginalised.
Dr Sultan, a resident of Peshawar, has been fighting for her dower (Haq Mehr), against her in-laws for the last 51 years. She initially filed a petition in the Peshawar civil court in 1971. She has since been making frequent court visits to get justice but without joy.
According to Dr Sultan's daughter, Dr Kashmala Orakzai, from the civil to the supreme court, rulings have been passed in her favour, but none of the court orders could be executed.
Dr Sultan says that she wants her dowerwhile she is still alive to distribute amongst her children in accordance with the Islamic teachings.
Dr Sultan currently suffers from several health complications and cannot move independently. Her age and deteriorating health make it virtually impossible for her to make repeated court visits.
From her experiences, she believes that the legal system does not support marginalized groups, particularly women, even for their genuine rights stipulated by the religion and the Constitution. Powerful and influential individuals can readily circumvent and flout justice at will.
For Kashmala, it is not a matter of money or a piece of land; it is a matter of her mother’s genuine right, which her religion and the Constitution provide.
On the question of Dowry, Ghulam Majid, a senior research officer for the Council of Islamic Ideology, explained that Sharia provides clear instructions on the right of women to dowry to comply with dignity and respect. In this respect, there is no upper limit for dowry; instead, a lower limit is fixed, which can be cash, jewellery, property, or all three.
Referring to a Hadees, Ghulam Majid explained that if a person agrees to dowry with the intention of not complying, he will be punished in the akhra. Still, nothing is stopping the government from prescribing punishment for the violator of dower (Haq Mehr), and there is no harm in doing this.
The Ordeal of Violence
The ordeal of Dr, Sultan and her children is not restricted to the inadequacies of the legal system, but it entails constant physical and mental torture.
Dr Sultan, showing torture marks on their hands and a damaged ear, intimated that she was beaten by her brother-in-law's children when she visited her portion of the joint family house. They not only beat her up but deprived her of the gold jewelry she was wearing and locked her in the joint home.
Dr Kashmala said that since the dowry property conflict started, her mother has survived many violent attacks. The perpetrators had not only committed physical violence against her mother but subjected her to a constant state of mental torture by resorting to different tactics.
Kashmala explained that her mother’s physical and mental torture is not limited to her objectors but includes law enforcers.
Recalling one of many violent attacks that her mother has survived, she said that on one occasion her mother was beaten so severely that she had to take her to the Bhana Mari police station in an injured state to register the case.
The police officer on duty, instead of filing a report on behalf of her mother, reported it as his interpretation of the case, thus making the case very weak at the very start, according to Dr Kashmala.
It was an armed attack on Dr Saeeda. In such cases, the presence of the victim party at the incident site is usually compulsory during the police investigation. Still, the Bhana Mari police neither consulted nor took us to the incident site visit.
According to Dr Kashmala, the opponent party has been investing money in links to delay the implementation of court orders. As a result, many years have passed since the Supreme Court’s decision in her mother's favour, yet the possession of the property remains in the hands of her mother’s in-laws.
She said her cousin's Advocate Liaquat Ali, former Nazim Kafiat Ullah Orkzai, and Sadiqullah Orkzai are leading players in delaying the implementation of the apex court decision. They have strong personal and political links in the law and political circles.
She explained that they had hired some noted lawyers, but none of them could present the case before the court with any full conviction due to an alleged backdoor pressure.
From Civil to Supreme Court
Dr Saeeda Sultan married Dost Khan Orkzai, a native of Orakzai Agency [now Orakzai district], in 1953. At the time of Nikkah, her in-laws transferred more than 3 Kanal properties in her name as HaqMehr from their joint properties. Dower (Haq Mehr), document was signed by all the shareholders, according to Dr Saeeda’s daughter Dr Kashmala.
Dr Saeeda Sultan had filed a petition to get her dower property in 1971 with the support of her husband while he was alive. More than 50 years have passed since the petition was filed, but justice could not be served. The case continues to linger in the courts.
According to Dr Kashmala, courts have passed rulings in favour of her mother from lower to top. Still, executions of these have been constantly circumvented by the inadequate and corrupt system.
A Civil Court Judge Mudassir Shah Termizi had passed the first ruling of the case in favour of Dr Saeeda in 2006, according to Dr Kashmala. Still, the execution could not be possible due to various push and pull factors.
The case was later moved to the Peshawar High Court (PHC). Former PHC Justice Dost Muhammad Khan heard the case and noted observations in favour of the Dr Saeeda, but the judgment under his supervision was conflicting. Any attempt to get possession based on that judgment could lead to a human tragedy, explained Dr Kashmala.
After that, Dr Saeeda moved to the Supreme Court, and the apex court gave the ruling in her favour in 2010, but again, compliance with the court order could not be ensured.
When asked why execution remained ineffective, Dr Kashmala explained that the SC ordered the then Tehsildar and Patwari to ensure execution of the court order, but they allegedly had been bribed.
They pressured her mother to sign the possession documents under false pretense, but they did not give possession of the property to her. The Tehsildar submitted the signed documents to the SC. As a result, the case was closed. They had informed our lawyer that they were pressurized for the signing of documents. This was a blatant act of fraud maintained by Dr Kashmala.
In this regard, Qazi Muhammad Anwar, a former attorney general, and a constitutional lawyer, explained that after the last SC judgment, the Court was informed that the execution of the judgment had taken place, but this was only on paper but not on the ground. Accordingly, a review petition was filed in the court to ensure execution in true letter and spirit.
According to Dr Kashmala, the real culprit is Tehsildar in the case. He not only committed fraud with my mother but also misinformed the court.
She explained that the Tehsildar told her mother that he was new in the area and faced many challenges. He had to send a report of the execution of the court decision, and doing this within the time allowed was necessary for his job security.
He had assured her mother that he would immediately ensure possession of the dowry property, requesting her signature on the possession documents, which her mother signed. The Tehsildar had been retired for years, but the Haq Mehr property case was hanging in the balance.
Dr Kasmala added that I don’t know what prevents our lawyers from forcefully arguing our case against the perpetrator despite being paid some hefty fees while incurring other related expenses.
The dowry case is currently under proceedings in the Supreme Court registry of the Peshawar High Court (PHC). The SC accepted the review petition of the plaintiff in 2017, and only two hearings could be made possible till the date, according to Dr Kashmala. According to her, her mother’s case is being delayed intentionally.
Many Others Walking on the Tightrope
The elderly Dr Orakzai is not the only woman in Khyber-Pakhtunkhwa who has been victimised at the hands of in laws as well as the flawed justice system but there are hundreds of other women in the province who are experiencing such worst situations for taking stand against denial of their Islamic and legal right. Haleema Bibi is another example.
Haleema Bibi, mother of three from Peshawar, had not only been stood victim of physical and mental torture at the hand of her drug addict husband but she had been survived two murder attempts of the offender. She said that the offender had made first murder attempts when she was living with her at her house. As a result she suffered bullet injuries and remained hospitalized for weeks in critical condition.
She had been a victim of severe domestic violence for four long years but according to Bibi, she kept violence against her hidden from parents for the sake of her children. She has taken divorce and is living with her three young children.
The offender made second murder attempt on Bibi when she filed a petition to get possession of her haq mehar property. She was visiting court to attend a hearing when the offender opened indiscriminate fire on her leaving her with four bullets in her body.
“It was not the first time when he had made murder attempt but he had been made such attempt when she was living with him at his house,” she added.
Bibi, despite suffering six bullets in two murder attempts, could not get justice from the court. Later her dower issue was addressed by a local Jirga in which she was compensated for her haq mehar property but the compensation amount was half of the haq mehar property.
The important question which Haleema’s suffering raises is why the preparatory despite making two murder attempts could not be brought to justice?
The Section 324 of the Pakistan Penal Code states whoever commits an offense with the intention of hurting or killing someone will be considered guilty of murder attempt and shall be punished with imprisonment for either description for a term which may extend to ten years, but shall not be less than five years.
In addition, the same section is applied in the cases of domestic violence with some changes as per the requirement of the severity of the violence.
Similarly, if the offence has been committed in the name or on the pretext of honour and shall also be liable to fine and if hurt is caused to any person by such offence, the offender shall, in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused.
In case of attack in court premises, section 7 ATA (Anti-terrorism Act) can also be applied because it considered as terrorism act.
However, the offender in the case of Haleema could not be brought to justice in any of his crime against the women but the victim in any act of violence remained on the receiving, raising questions on the justice system as well as the role of concerned officials.
The tale of Rubina*, another resident of Peshawar, is not that different either. Dower property has made Rubina’s married life difficult as her in-laws were against it. From the very first day, her in-laws' attitude was humiliating because of dower property.
In Rubina’s family it is customary for the family to transfer property in the name of women whether she is a daughter or daughter in law and her father did the same to continue the legacy. Initially, the in-laws resisted but later they agreed and wrote a portion of their house on her name as haq Mehar.
She said that she has spent 14 years of her married life and they have three grown up children but the pressures for returning dower property has yet to come to an end.
They, including the husband, have adopted a humiliating attitude to get the house portion back on their name. “The house is now in the custody of my in-laws and I just want to get my dower share but they are not ready to give my share. I don't want to register FIR just because I want to continue my married life with my husband and children,” she said.
Dower is one of the fundamental rights of woman provided by Islam as well as the law. This right provides women economic and financial stability at the beginning of her marriage life. But Pakistani society takes it as a nuisance if a woman demands her genuine rights and deals with violence.
KP Ombudsperson was contacted by this correspondent for her comment on the dower situation in KP but she could not make her availability for comment.
If laws protect dowry rights, then what else?
According to Advocate Huma Jamil Babar says section 10 of the Muslim Family Laws Ordinance 1961 stipulates to the dower that where no details about the mode of dowry payment are specified in the Nikahnama [the marriage contract], the entire amount of the dowry shall be presumed to be payable on demand.
This applies to all dowry-related things, whether cash, jewelry, property, or other items.
Regarding the procedure, Advocate Huma explained that the system is the same as the other family cases. A woman must approach the court under section 10 of the family laws. However, the dowry's unclear status can make a case more complicated and time-consuming.
Elaborating further, Advocate Huma explained that sometimes random things are mentioned in the Nikahnama, for example, two marala plots somewhere in Peshawar but without the exact location of the plot or the Khsra number or in case of a portion than which if it’s in a joint compound.
These ambiguities leave cases undecided for years or, in some cases, decades. Otherwise, six months is the fixed period to give a ruling on family cases, Advocate Huma explained.
It is to mention that Dr Sultan’s dowry document clearly mentioned Khsra no and the exact location of the property, and she has all the documents and court ruling.
Talking about delays in dower case decisions, an advocate of the High Court Agha Sajid Shah, explained that the vast bulk of cases in family courts and a shortage of judges are important factors in causing delays in such cases. He further said the ratio of dowry cases is increasing because of a growing awareness among women about their rights.
Sajid Khan Tanoli, an advocate of the Supreme Court with years of experience in handling civil and criminal cases, said it is a common perception in our society that women don’t have rights in the property, and if a woman demands her right, whether in inheritance property or dower right she is declared Baghi. Seeking a share in property is considered taboo in our society. Whether it is a share in inheritance property or Dower (Haq Mehr) doesn't matter.
Advocate Atif Majeed Kayani shared that if a woman has documents of her Haq Mehr property, the respective law ensures delivery of her right. In such cases, a man has no other option but to hand over possession of the property to the woman. According to the law, Haq Mehr is a woman's genuine right, and no one can deny her this right.
The System’s Actual Dilemma
There is no deficiency in the enforcement of laws as far as public interest issues are concerned. The real dilemma is that the system operators don’t act according to the true letter and spirit of the law, according to Dr Akhtar Ali Shah, an Advocate of the High Court and former civil servant KP and a retired IGP.
Dr Shah said FIR sets the whole investigation system into motion, but individual bias plays an important role in spoiling or improving the real spirit of the issue. The rest of the investigation or court case proceedings depend on the information included in the First Information Report.
Dr Shah observed that the structural reforms are introduced at the top level, but those at the sharp end of the implementation are left out. These are your police officers, Patwaris, or Tehsildars who deal with the public.
At this level, lack of proper training, careless and casual attitude of the frontline officers are some of the contributing factors to the system's failings, which have severe consequences for women and others too.
With regards to challenges faced by women in getting their rights, Dr Shah took the view that male-dominated society and feudal structures compound women's problems because, for example, when a woman persists in her rights, the traditional culture, instead of supporting them, resist them.
Dr Shah suggested that there is a need to update the exam system of police and other enforcing departments so that the entire investigation and implementation system can be ‘biased-neutralized.’
Until and unless we don’t introduce reforms at the grassroots level, this system will continue creating problems for the public, particularly women.
He said the rule of law is a fundamental element in any state system of governance, and if it does not work in its actual letter of spirit, improvements in the justice system are not possible.
Regarding the implications of such an inadequate system at the state level, Dr Shah said that the rule of law is a fundamental element. It will lead to chaos, public uncertainty, militancy, and civil war if it does not prevail.
Shazia Mehboob Tanoli is a freelance investigative journalist based in Islamabad. She tweets @shizrehman. All information and facts provided are the sole responsibility of the writer.