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Constitutional and

Legal Rights of
Women in Pakistan

Electronic copy available at: http://ssrn.com/abstract=2484371

Constitutional and
Legal Rights of
Women in Pakistan

WOMEN AID TRUST

Electronic copy available at: htt

2013 ii . All Rights Reserved Title: : Constitutional and Legal Rights of Women in Pakistan Writers : Asma Mushtaq (Advocate High Court) Munazza Razzaq (Advocate High Court) Shagufta Omar (Director Research Cell) Edited by : Ameena Suhail (Advocate High Court) Published by : Women Aid Trust. 60/- This booklet has been published on the eve of International Women Day 8th March. 2013 No. Pakistan First Edition : 8th March. : 3000 Price : Rs.

Constitutional Rights for Women 2-3 1.Rights provided to Women under Criminal law 4 a.C) 10-11 c. The West Pakistan Family Courts Act. Rights to Freedom 4. Rights to Property 5. Pakistan Penal Code(PPC). Rights to Equality (irrespective of gender. Rights of women Prisoners 12 2.P.1961 13-14 c.1939 b. Rights to Culture: 6. Legal Rights 3 1. religion.1964 14-15 d. Muslim Family Laws Ordinance.1979 d. Offences of Qazaf (Enforcement of 11-12 Hadd)Ordinance. 1860 4-10 b. Contents Preface Constitutional and Legal Rights of Women in 1 Pakistan A. Rights of life and liberty 2. Criminal Procedure Code (Cr. Right to Constitutional Remedies to Protect Fundamental Rights B. residence) 3.Rights provided to women under Family Laws 12 a. race. caste. The Guardians and Wards Act.1890 15-16 iii . The Dissolution of Muslim Marriage 12-13 Act. Social Rights 7.

Factories Act. e. Mines Maternity Benefit Act 1941 17 e. Dowry and Bridal Gifts( Restriction)Act. 1958 17-18 iv .Rights provided to Women under Civil Laws 17 a. 1934 17 c. The Maternity Benefit Ordinance.1929 16 f. Married Women Property Act. 1874 17 d. 1908 17 b. Child Marriage Restraint Act. Code of Civil Procedure.1976 16 3.

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colour. acid attacks. vigilante justice. rape. The concept of human rights acknowledges that every human being on earth is entitled to enjoy his/her basic rights without distinction as to race. The Constitution of Islamic Republic of Pakistan guarantees fundamental rights of every citizen without discrimination on basis of gender. At the same time. language. Allah SWT said in Quran: O mankind! Lo! We have created you male and female. mutilations. condition of women in rural areas is deplorable amidst heinous anti woman practices like forced marriages. and have made you nations and tribes that ye may know one another. property. karokare and vani etc. national or social origin. PREFACE The 21st century is an era of human rights in which the evolution of individuals as well as of nations would be judged. women are participating in every field of life and working for the social and economic development of the society. in the progress of Muslim world. Women played vital role in every sphere of life side by side with men. honor killings. in the sight of Allah. In the urban areas of Pakistan. sawara. Lo! The noblest of you. gender. is the best in conduct. Foundation of the Constitution of Pakistan 1973 are embedded in Islam. religion. Aware 1. birth or status. political or otherwise. a religion that has recognized all human rights inclusive of women rights 1400 years ago. 1 Surah Al Hujrat: 13 vi . Lo! Allah is Knower.

We hope this work will prove beneficial on the subject towards awareness building in the society and pray to almighty Allah for his blessings in our work & plans. which are given by the Constitution of Islamic Republic of Pakistan.This booklet is a tiny effort to bring awareness among the masses about women’s basic rights. Shaheena Khan General Secretary Women Aid Trust vii . 1973 and by other laws of the land.

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When a right is safeguarded through constitutional guarantee it is called fundamental or constitutional right.” 1 . Constitutional and Legal Rights of Women in Pakistan Constitutional and Legal Rights of Women in Pakistan Law was born with the birth of man. It can be created and enforced either by a constitutional provision or by an ordinary enactment. especially one guaranteed by the state Constitution. A “Right” is an interest recognized and protected by law. to keep the society intact. According to Black’s Law Dictionary: “Constitutional right is a right guaranteed by a Constitution. observe some rules by which their relation with one another are determined. they must. with the creation of Adam came the command: “Thou shall not” and for the disobedience of that command the penalty therefore. So long as men live together.

Rights to Freedom a. Safeguard as to arrest and detention(Art. Protection against double punishment (Art.15). Freedom of assembly (Art.18).10). c. d. 2.9). 27). 19). and d. Equality regarding accessibility to public places (Art.” 1 Means a person cannot be punished for any offence which has been committed before the enactment of that law. etc (Art. 1973 (hereinafter referred to as “The Constitution”) all citizens are equal in the eyes of law and there must not be any discrimination on the basis of sex. Inviolability of dignity of man (Art. Freedom of trade. b. The Constitution has guaranteed twenty one fundamental rights. Freedom of religion (Art. 26). Protection against retrospective 1 punishment (Art. Freedom of association. b. f. c.12). which are as follows: 1. residence) a.Women Aid Trust A. Freedom of movement.(Art. c. Right to life and liberty (Art. 3. 17). 25).16).13). Freedom of speech (Art.(Art. Equality of employment (Art. 2 .20) “freedom of religion applies to minorities as well as various sects of religion. e. race. Rights of life and liberty a. b. and d. 14). religion. caste. Equality before law (Art. Rights to Equality (irrespective of gender. Constitutional Rights for women According to Article 25 of the Constitution of Islamic Republic of Pakistan. profession.

Freedom to acquire property (Art. every citizen of Pakistan can invoke the writ jurisdiction of high court and seek remedy against infringement of fundamental rights guaranteed there under. 4. Rights provided to women under Criminal Law 2. Rights to Culture: Preservation of language. Protection against taxation on basis of religion (Art.22).: 7thed.21). 3 . Constitutional and Legal Rights of Women in Pakistan g. Social Rights a. script.11) 7. Rights provided to women under Civil Law 3.24) 5. Rights provided to women under Family Law 2 Bryan A. and b. Protection of property rights (Art. Protection of religious and educational institutions(Art. 1. “Black’s Law Dictionary” (West Publishing Co. Legal Rights Legal right has been defined in Black’s Law Dictionary 2 as: “A right created or recognized by law”. Freedom from slavery (Art. Right to Constitutional Remedies to Protect Fundamental Rights Under Article 199 of the Constitution. and culture etc (Art 28) 6. and h. Freedom from forced Labor (Art. and b. Garrner.11). Following are the different categories of legal rights for women in Pakistan. Rights to Property a. B.23). USA).

1997 incorporated within Pakistan Penal Code (PPC) 1860. Section 336 A states that whoever voluntarily causes hurt by means of fire or any heated substance. Rights Provided to Women Under Criminal Law a. defaces or dismembers any organ of the body” Following words has been added in the definition of hurt by Criminal Law Amendment. is said to cause hurt5. or by means of any explosive or arsenic substance or by means of any substance which is deleterious to the human body to come into contact with. infirmity or injury to any person or impairs disables. 2009/Acid Control and Acid Crime Prevention Act. infirmity or injury to any person or impairs disables. Pakistan Penal Code (PPC) 1860: According to section 3103 and 310-A4. 2009 6 Criminal Law Amendment. harm. whoever gives a female in marriage or otherwise in Badal-I-Sulh shall be punished with rigorous imprisonment which may extend to 10 years and shall not be less than 3 years. 4 Criminal Law Amendment. disease. 3 Qisas and Diyat Ordinance. 2009/Acid Control and Acid Crime Prevention Act. harm. According to section 332 whoever causes pain. 2009 4 . disfigures. or by means of any poison or any corrosive substance or acid. or to receive into the blood is said to cause hurt by dangerous means or substances6. to inhale. 2005 5 “causes pain. defaces or dismembers any organ of the body or any part of any person without causing his/her death. disfigures. disease.Women Aid Trust 1. to swallow.

Section 365-B stipulates that a person. Section 354-A provides that if any person assaults or uses criminal force against any women and stripes her clothes in a manner which exposes her to the public view shall be punished with death sentence or life imprisonment. may be punished with life imprisonment. or with fine which may not be less than five hundred thousand rupees. According to section 354 a person may get two years imprisonment if he assaults a woman or uses criminal force against her with intent to outrage her modesty. Constitutional and Legal Rights of Women in Pakistan 336 B provides that a person causing hurt by dangerous means or substances. who kidnaps or abducts a woman for the purpose of rape or forceful marriage. 8 Criminal law Amendment. 7 Ibid. 8 Section 366-A provides if any person takes away any minor girl to another place or seduce her with intent of illicit intercourse with another person shall be punishable with imprisonment which may extents to 10 years and fine. or with both. That the Court may at any stage of the trial on an application by the aggrieved person direct the accused to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and such relief may include. 2006 /Women Protection Act. shall be punished with imprisonment for a term which may extend to life. but is not limited to loss of earning and medical expense7. 2006 5 .

Women Aid Trust Section 366-B provides that if any person imports any girl to outside of Pakistan with intent of illicit intercourse with another person shall be punishable with imprisonment which may extent to 10 years and fine. to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of. lets to hire or otherwise disposes of any person with the intent that such a person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person shall at any time be employed or used for any such purpose shall be punished with imprisonment which may extend to twenty-five years and shall also be liable to fine. Section 367-A provides that whoever kidnaps. 2006 /Women Protection Act.9 According to section 371-A whoever sells. or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subjected. 2006 10 Ibid. 6 . shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years and shall also be liable to fine.10 According to section 371-B whoever buys hires or otherwise obtains possession of any person with intent that such person shall at 9 Criminal law Amendment.

2006 12 Ibid. 13 Firstly section 376 PPC provides Rape according to that its punishment was 10 years. shall be punished with imprisonment which may extend to twenty- five years. 2006. and shall also be liable to fine. 2006 /Women Protection Act. and thereby also includes any intercourse without the consent of wife.11 Section 375 defines the crime of rape. each of such person shall be punished with death or imprisonment for life.13 Section 493 provides that every man who deceitfully causes any woman. Constitutional and Legal Rights of Women in Pakistan any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose.12 According to section 376. This insertion was enacted by Women Protection Act (criminal law amendment). 7 . This definition eliminates the condition of marriage earlier as described in PPC. Stating that man is said to commit rape who has sexual intercourse with a woman without her consent. According to section 376(2) when rape is committed by two or more persons in furtherance of common intention of all. After enactment of Hadd Zina Ordinance 1979 it become section 6 (1) and according to that its punishment was up to 25 years imprisonment. a person who commits rape shall be punished with death or imprisonment which may extend to 25 years and shall not be less than 10 years. or knowing it to be likely that such person will at any time be employed or used for any such purpose. shall be punished with rigorous imprisonment for a term which may 11 Criminal law Amendment. who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief.

2006 15 Criminal Law Amendment. Through this amendment Zina Bil Raza has been removed from the ambit of Hadd and a Tazir punishment has been imposed which is against the injunctions of Quran and Sunnah. 2006 18 Criminal Law Amendment. shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees. Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees. Section 496-B provides that a man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.e. The new provisions are as follows: 14 Criminal Law Amendment. 2006 16 Ibid. 2006/Women Protection Act. “Offences Against Women”. a person who entices a woman with intent to illicit intercourse with her or conceals or detains her for that purpose may be punished with imprisonment for a term up to 7 years and fine15. 2006/Women Protection Act.17 The new chapter XXA18 has been inserted i.Women Aid Trust extend to twenty-five years and shall also be liable to fine14. 17 Criminal Law Amendment.16 Section 496-C provides that whoever brings or levels or gives evidence of false charge of fornication against any person. According to section 496-A. 2011 8 . 2006/Women Protection Act.

000/.100.000/-. shall be punished with 3 years imprisonment or with fine Rs.500. shall be punished with imprisonment which extend to 7 years and not less than 3 years and shall also be liable to fine of Rs. Section 509 provides that a person who intends by uttering any word or making any sounds or gestures or exhibits any object to insult the modesty of any woman or otherwise intrudes upon the privacy of such woman at working places.000/-.Constitutional and Legal Rights of Women in Pakistan  Section 498-A provides that whosoever by deceitful or illegal means deprive any woman from inheriting any movable or immovable property shall be punished with imprisonment for a term which may extend to 10 years and not less than 5 years or with fine of Rs. A bill on domestic violence has been approved by National Assembly and is pending before Senate for approval.000/-.500.500. According to this enactment 9 . shall be punished with imprisonment which may extend to 7 years but not less than 3 years and shall also be liable to fine of Rs.  Section 498-B provides that whosoever coerces or in any manner compels a woman to enter into marriage.or with both.  Section 498-C provides that whoever compels or arranges or facilitates the marriage of a woman with Holy Quran .

Section 203-A provides the procedure of complaint in case of Zina that no court shall take cognizance of an offence under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance. 10 . Section 497 provides that women19 can claim bail as a matter of right. with strict regard to decency. except on a complaint lodged in a Court of competent jurisdiction20. except in cases of terrorism or offences in which punishment would extent to death penalty or life imprisonment. b.P.Women Aid Trust victim can file a case before the Court of law which would be decided as early as possible.C) 1898 Section 52 provides that whenever it is necessary to search a woman she must be searched by another woman. no Court shall take cognizance of an offence under section 7 of the said Ordinance except on a complaint lodged in a Court of competent jurisdiction21. 19 Code of Criminal procedure Amendment. Criminal Procedure Code (Cr. Section 203-B provides procedure of complaint in case of qazaf that subject to section 6(2) of the Offence of Qazaf (Enforcement of Hadd) Ordinance. 1979 (VIII of 1979). 1979 (VII of 1919). 2011 20 Criminal Law Amendment. 2006 21 Ibid. Section 167 clauses 5. 6 and 7 provides that there must be police stations for woman in every city and if no separate police station is available then a woman will be sent to judicial lockup and shall not be kept in a male police station. 2006 /Women Protection Act.

11 . Constitutional and Legal Rights of Women in Pakistan Section 203 C provides procedure of lodging of private complaint before competent Court in case fornication has been committed under section 496A of the Pakistan Penal Code22. (b) the wife shall. in reply to the husband's statement made in accordance with clause (a) says upon oath before the Courts: "I swear by Allah the Almighty that my husband is surely a 'liar' in his accusation of 'zina' against me'. (2) When the procedure specified in sub-section (1) has been completed. the Court shall pass an order dissolving the marriage between the husband and wife. the following procedure of 'Lian' shall apply as under :- (a) The husband shall take oath before the Court: "I swear by Allah the Almighty and say I am surely truthful in my accusation of 'zina' against my wife (name of wife)" and after he has said so four times. and. Offences of Qazaf (Enforcement of Hadd) Ordinance. which shall 22 Ibid. she shall say: "Allah's wrath be upon me if he is truthful in his accusation of 'zina' against me". Section 14 provides that when a husband accuses his wife before a Court who is 'muhsan' within the meaning of section 5 of Hadd-e-Zina Ordinance. c. 1979 Section 7 provides that a person who falsely accuses a woman of zina shall be awarded punishment of whipping numbering 80 stripes. 1979 and the wife does not accept the accusation as true. he shall say: "Allah's curse be upon me if I am 'liar' in my accusation of 'zina' against my wife (name of wife)". after she has said so four times.

d. Rights of Women Prisoners Women prisoners enjoy same rights as are provided to men prisoners. Rights Provided to Women under Family Laws a. or (b) In the case of the wife she has either agreed to go through the aforesaid procedure or accepted the husband's accusation as true. The Dissolution of Muslim Marriage Act . 1939 Section 2 provides that a wife can seek decree of dissolution of marriage in the following cases:  Whereabouts of husband have not been known for a period of four years. she shall be imprisoned until: (a) In the case of the husband he has agreed to go through the aforesaid procedure.  Husband has failed to provide maintenance for a period of two years. file appeals before competent Court of law and they also have the right of remission during their imprisonment on different occasions.23 2. 2010).  Husband consummates second marriage without permission of the first wife. 12 . According to Cr. (4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of 'zina' liable to hadd under the imposition of Hudood for the Offence of 'zina' Ordinance. (3) Where the husband or the wife refuses to go through the procedure specified in subsection (1) he or as the case may be.Women Aid Trust operate as a decree for dissolution of marriage and no appeal shall lie against it. 1979. In the same way they can pursue their cases.PC and Jail Manual women have every sort of protection in jail. 23 For detail see Jails In Pakistan Rules and Regulations by Asma Mushtaq (Women Aid Trust: Islamabad.

 Husband treats wife with cruelty and habitually assaults her. he would be punishable with imprisonment which may extent to three months and fine which may extent to one thousand rupees. 1961 Section 5 provides the nikkahnama form to be filled and to be registered with the nikkah registrar of concerned union council and this is the responsibility of husband. Constitutional and Legal Rights of Women in Pakistan  Husband has been sentenced to imprisonment for a period of seven years or onwards. In case of husband’s failure to obtain registration of his marriage.  Husband disposes the property of wife without her consent or prevents her from exercising her legal rights over it.  Husband obstructs wife in the observance of her religion. Whereas the superior Courts gives directions to the family Courts to decide the matter within six months. and  That husband accuses wife of zina and she denies so and proceedings of lian has been held24. uses her right of “option of puberty” to dissolve her marriage.  Husband has been insane for a period of two years. Section 6 prohibits second marriage of husband without prior permission of first wife.  Unequal treatment of husband in case of more than one wife. Muslim Family Laws Ordinance. if he does so he would be liable to imprisonment which may extend to 24 Read with section 14 of Hadd-e-Qazaf Ordinance 1979 13 .  Husband forces the wife to lead an immoral life.  Wife after attaining majority while marriage was solemnized by her father against her consent. b.  Husband is impotent.

schedule 1 part 1 provides that following matters comes within the ambit of family Courts:  Dissolution of Marriage (including Khula)  Dower  Maintenance  Custody of Children (visitation rights of parents in case of separation of parents)  Guardianship  Recovery of Dowry Articles  Personal property and belongings of a wife 14 . then the provisions of section 7 shall be applicable in its true spirit.Women Aid Trust one year or fine which may extend to five thousand rupees. 1964 Section 5. Section 7 provides procedure of registration of divorce it is the responsibility of husband to send notice of divorce to wife and arbitration council as well. The West Pakistan Family Courts Act . Section 8 provides for the possible delegated rights of divorce to the wife and in case she wishes to exercise that right. c. If he fails to do so he will be liable to imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both. Section 9 provides that in case husband fails to maintain his wife adequately or where there is more wives and fails to maintain them or one of them equitably the wives can claim the past as well as future maintenance as a matter of right. the entire amount of dower shall be payable on the demand of wife at any time. Section 10 provides details about that in case of non- specification of mode of payment of the dower in the nikahnama or the marriage contract.

Court shall pass interim order for maintenance immediately after filing of the written statement.26 d. shall be borne by the father. 15 . clothing. 25 Family Law Courts( Amendment) Act. whatsoever. The Family Court- (a) In a suit for maintenance of children. However. all the day to day expenditures of the minor. 2008 26 Ibid. Court may at any stage of the proceedings pass an interim order for maintenance. lodging. If the father fails to fulfill this liability the minor may seek help of the Court and the Court may fix quantum of maintenance allowance keeping in view the standard of life of both the families and coercive measures may also be used to recover the allowance from father. Constitutional and Legal Rights of Women in Pakistan Section 17-A Interim order for maintenance 25. in this rule the paramount consideration in respect of the custody of child is minor’s welfare. Whereby the father shall make payment by the fourteenth of each month in advance. (b) In any other suit for maintenance. While deciding such disputes the Court may deviate from the above mentioned common law and allow mother to continue the custody even after the son exceeds the age limit of 7 years. Hence. 1890 In case of separation between the spouses. education and health etc. the mother has the legal right to keep the custody of her son till the age of 7 years while her daughter shall remain in her custody till marriage. like feeding. in case of any default in payment the Court shall strike off the right of defense and decree the suit. The Guardians and Wards Act . But in any case.

Dowry and Bridal Gifts(Restriction) Act.29 f.27 e. 2008 16 . 28 That the superior Court and the Muslim jurists have established the principle that any such marriage will be considered valid. (This law has proved ineffective and impractical. Section 9 provides that in case of violation of above the person would be punishable with imprisonment which may extent to six months. Section 6 provides that expenditure on marriage including mehandi. on the first date of hearing pass interim order for the custody of minor to the mother and visitation rights of the father. the Court shall.Women Aid Trust Provided that where the minor has not attained the age of seven years in the case of male or the age of 16 years in the case of female. 27 Guardian and Wards (Amendment) Act. barat and valima shall not exceed twenty-five hundred rupees. 29 Family Law Courts( Amendment) Act. 1929 Marriage of girls during childhood is prohibited. reasonable legislation and implementation has been required on this important issue). Minimum marriage age was extended to 18 years through an amendment in family law amendment. 2008. The parents and the nikkahkhwan both are liable to be punished with imprisonment and fine if they are involved in arranging the marriage of a girl who is under sixteen years 28. Child Marriage Restraint Act. 1976 Section 3 provides that presents given to bride by her parents or the presents given to bridegroom shall not exceed five thousand rupees.

Dismissal during period of pregnancy is prohibited. there must be a day care center for their children. Mines Maternity Benefit Act 1941 This Act prohibits the employment of women in mines for a certain period before and after childbirth and to provide for payment of maternity benefit to them. earnings and wages. Constitutional and Legal Rights of Women in Pakistan 3. 1958 This Act prohibits the employment of women workers for a certain period before and after 17 . c. 1908 Section 56 provides that a woman cannot be sent behind bars in execution of decree and in financial matters. There must be 14 annual leaves. Factories Act. Married Women Property Act 1874 This enactment protects the rights of married woman with respect to her property (moveable or immovable). In case of death of women her family would be entitled to receive the maternity benefits. Rights Provided to Women under Civil Laws a. d. The Maternity Benefit Ordinance. e. Code of Civil Procedure. 10 occasional leaves and 16 sick leaves with full salary to be provided to women workers. It is prohibited for the women and child workers to clean up or assemble any part of running machinery of the factory. b. Females working hours would not be more than 48 hours per week. 1934 In case there would be more than 50 women working in a factory. After every six days there would be one holiday with salary.

18 . Dismissal during period of pregnancy is prohibited.Women Aid Trust childbirth. In case of death of women her family would be entitled to receive the maternity benefits. It also provides for payment of maternity benefit to them.