Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 6 July 2005
Review: /80/05

Cultural Courts: Where victims are held guilty

Mukhtar Mai

Across South Asia, women who are victims of abuses and violence including rape are being condemned as guilty in the name of Sharia, gotra and maintaining tradition. The alleged rape of Imrana by her father-in-law Ali Mohammad in Muzaffarnagar district of Uttar Pradesh of India and the rape of Mukhtar Mai on the order of jirga, village council, in Pakistan are not isolated incidents. Yet, the response of the governments to the menace of injustices by the "cultural courts" can at best be described as knee-jerk. Politicisation of the crimes against Imrana by political parties in India and ban on travel on Mukhtar Mai in the name of protecting the image of Pakistan only make women more vulnerable to such gruesome violence.

I. In the name of Sharia

In early June 2005, 28-year-old Imrana, a mother of five, was allegedly raped by her father-in-law Ali Mohammad while she was asleep in her house in Charthawal town in Muzaffarnagar When the rape came to the attention of the panchayat, head of the Nurwaan Masjid in the Charthawal issued a fatwa that Imrana must accept her father-in-law as husband and her husband, Nur Illahi as a son. To add insult to injury, on 27 June 2005,Islamic seminary of Darul Uloom Deoband issued another fatwa that Imrana had become haram (prohibited) for her husband and her marriage stood dissolved as she was forced into sexual relationship by her father-in-law. The victim was punished and condemned! While All India Muslim Personal Law Board supported the ruling on dissolution of the marriage, All India Muslim Women's Personal Law Board condemned it.

Courtesy: Reuters

Across the border in Pakistan, Mukthar Mai gang rape case has been rightly making international headlines. On 22 June 2002, Mukhtaran Mai was gang raped allegedly on the orders of a Jirga, village council, in the southern Punjab village of Meerwala in Pakistan. Controlled by the influential Mastoi, the Jirga ordered rape of Mukthar Mai as punishment for alleged rape of a Mastoi girl by Mai's 12-year-old brother Shakoor that had allegedly brought shame to the Mastoi clan. However, at the trial court, it was revealed that the 12-year-old boy had in fact been kidnapped and sodomised by the same men who later made up his jury. The Mai family had allegedly threatened to report the matter to the police.

On 30 June 2002, a case was registered with the Dera Ghazi Khan (southern Punjab) police against 14 men for the gang rape of Mukhtar Mai. All were arrested and charged under various provisions of the Pakistan Penal Code (provisions 109/149) of 1868, the Anti-Terrorism Act (7c & 21-1) of 1997 and the Offence of Zina (Enforcement of Hadd) Ordinance of 1979. Four of the 14 accused were charged with raping Ms Mai while the rest were booked for abetment. On 31 August 2002, the trial court at Dera Ghazi Khan convicted six of the 14 accused to death, four of these were sentenced for raping her while two were convicted for being a part of the Jirga that decreed the rape. The remaining eight were released and subsequently freed. However, on appeals by the State and the victim, the Multan bench of the Lahore High Court reversed the trial court's judgment on the basis of "insufficient evidence" and "faulty investigations" and acquitted five of the six accused while the death sentence of the sixth accused was commuted to life imprisonment. All the five acquitted were set free.

On 28 June 2005, a Supreme Court Bench of Pakistan overturned the Lahore High Court judgement and ordered the immediate re-arrest of all 13 accused. The accused have been arrested and sent to judicial custody till their appeals are decided. The final judgement is awaited.

II. In the name of Gotra, caste

Across India, Hindu caste panchayats too have been perpetrating injustices with virtual impunity in the name of gotra, caste. On 11 October 2004, Rampal and Sonia of Assanda village in Jhajjar district who have been married for two years were issued order to dissolve their marriage by the Assanda village Panchayat and declare themselves brother and sister as they belonged to the same `gotra' (caste). The panchayat had even decided that Sonia, who is pregnant with Rampal's child, would have to abort her child as it was "illegitimate". The National Human Rights Commission of India intervened in the matter. On 28 October 2004, the village Panchayat decided to validate Sonia's marriage to Rampal and accept her back in the village after Sonia's father swore that he belonged to the Hooda gotra. But no action was taken against the Panchayat members.

Even the Supreme Court of India had to intervene. On 7 December 2004, Supreme Court directed the Haryana Police to provide adequate protection to Hari Om from a lower caste of Badshahpur village and Manju belonging to an upper caste from Gurgaon. They belong to different castes and got married in a temple at Muzaffarnagar in Uttar Pradesh on 21 July 2004. However, the village Panchayat declared their marriage illegal. Both of them had left their home as they were sure that their parents and village panchayat would not approve of their marriage. Manju's parents filed a case of abduction against Hari Om and the police brought the girl back and restored to her parents. Her parents forced her into second marriage on 18 August 2004. But she fled the house of her second husband and returned to Hari Om at Muzaffarnagar. Meanwhile, the village panchayats at Badshahpur (Gurgaon) and Ladhpur (Jhajjar) refused to recognize the marriage and ordered that the girl should be produced before them and sent back to her second husband Pradeep of Ladhpur. Feeling threatened by the diktats of panchayats, Manju and Hari Om moved the Supreme Court.

III. In the name of tribal traditions

In Mizoram State of India, the condition of the indigenous Mizo women is no better. They continue to suffer from injustices awarded by the Village Defence Party, Joint Action Committee and the Village Council Court established under various customary laws of the State.

There are reports that those caught in conflict with the law are put into wooden cages by these organizations as a part of traditional justice. The accused are not handed over to the police. The complaints, which are sometimes criminal in nature, are decided by the so-called Joint Action Committees or Village Defence Party. They also impose monetary penalty. The hairs of the accused are shaved off. The community leader and other individuals can order dismantling or ransacking of the houses and force them out of their house for allegedly not conforming to certain norms set by the traditional bodies.

Mrs. Sangkhumi, a divorcee and virtual homeless was allegedly found to be in possession of 1 litre country liquor in the late evening of 22 August 2004. She was taken into custody by the Village Council President of Vaivakawn, Mr. Rotluanga. She was brutally beaten. They also extorted her money amounting to Rs 2,600. In addition, the Village Council President and his accomplice shaved off her hair. If she were to be found guilty under the Mizoram Total Prohibition Act, 1995, she could be fined but no corporal punishment could be awarded.

IV. Way forward

Undoubtedly, the governments must recognise the cultural rights, religious freedoms and practices. But these rights are neither absolute nor be justified to commit crimes and injustices against man or women, individuals or groups.

The initiative undertaken by the Guwahati High Court to codify the tribal customary laws in the North East India is instructive as to how to deal with other personal/customary laws of different religious and ethnic groups. The codification of personal laws must not be construed as drafting Uniform Civil Code. But it is essential to ensure that those cultural and religious practices which are derogatory to the dignity of human being especially women are renounced and personal/customary laws must respect the inalienable and inherent equality in dignity and rights of all members of human family, the individual rights and freedoms, and conform to the mandate of the Constitution and States' obligations under international human rights law. In addition, it is essential to ensure that customary laws do not interfere with criminal offences. The codification of personal/customary laws will also help to determine who or which bodies could issue orders on customary matters. The government must raise awareness on these customary laws and provide training to these practitioners of customary laws to impart judicious decision.

Unless, the governments take measures to codify and reform personal/customary laws with full, effective and equal participation of women, medieval practices that condemn the victims will continue unabated. Until then the fatwas of self-styled judges of the "Cultural Courts" must be banned and such judges be brought to justice if there is any violation of the rights of the victims because of their decrees.

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