On the road paved with good intentions

The National Assembly on November 15, unanimously passed a purportedly ‘landmark’ bill for prevention of anti-women practices. While the intent of the bill is certainly admirable, its execution leaves a lot to be desired and the proposed law is quite troubling in its implications, particularly in matters of inheritance and forced marriages.

That little thought has gone into the drafting of the bill is evident on first reading. Even the proposer, Dr Donya Aziz, seems to not have noticed the typographical errors. Had it received thorough examination before the Parliamentary Law and Justice Committee such mistakes would not have passed into the original bill.

More disturbingly, beyond spelling mistakes, there are several fundamental problems with the bill. The most troubling aspect is its implications regarding the law of inheritance. The bill declares that, whoever by illegal means deprives any woman from inheriting any movable or immovable property at the time of opening of succession shall be punished with imprisonment, not less than five years or with a fine of Rs100,000 or both. It effectively renders almost any dispute regarding inheritance as potentially a criminal offence. This is likely to be devastating in an area which is principally a civil family matter and is the purview of the civil courts. So poorly is the provision drafted qua criminal liability in inheritance matters that it beggars belief. It makes the offence effective from the date of the death of the deceased from whom a female is supposed to inherit. One wonders: what of delay in proceeding with division of inheritance? There is not even reasonable time given for inheritors to divide shares. To the best of my knowledge, criminal actions in such matters in Islam are unprecedented too.

The other troubling aspect of the bill is how it deals with marriages, purportedly under coercion and for other purposes. While one agrees with the fact that wani, badla-e-sulah, sawara and forced marriages are social evils and should be punished, not much thought appears to have gone into how these ought to be legislated against. Given that arranged marriages are still prevalent in our society, will daughters now be filing criminal complaints claiming coercion and seeking to have their in-laws and husbands jailed if they ultimately find the marriage not to their liking? What of a case where a husband is not divorcing a wife and there is no right of talaq delegated? Will this not be a strong counterblast option handed over to wives?

Possibly, the sole voice of temperance in the National Assembly was MNA Justice Fakhrun Nisa Khokhar, who proposed amendments and pointed out qua the offence of depriving women of their inheritance rights (s. 498 A), that the same may well be contrary to Islamic injunctions and the Succession Act. She even suggested that the proper way to deal with inheritance problems is to set up a special court of inheritance to deal with such matters, but her reasonable suggestions did not carry the day. Even otherwise, she pointed out that addition of minimum punishments was contrary to judicial practice and good sense. Lastly, she objected to the removal of another safety valve in law by the sovereign power of the province to remit, suspend sentences, etc. In cases of rape, the provincial government may no longer suspend, commute or remit any sentence. It is interesting to note that in cases of murder the provincial government still has the sovereign rights to remit and suspend the sentence, but not in the case of rape.

In conclusion, the bill possibly demonstrates in the most unfortunate way, not only the dysfunction of our parliament, but what the sage once said about the road and good intentions. If some of the problems are not addressed before the bill passes into law, it may well be a road that leads to the hell of criminal proceedings for some unfortunate and, possibly innocent, family members.

Published in The Express Tribune, November 21^st, 2011.