Understanding the Dua case [Part – I]

What transpired on April 16, 2022 and the events that subsequently unravelled therefrom were bewildering enough but certain intriguing conundrums surfaced that were left forsaken by commentators.

One question that was not taken into consideration in the case of Dua Zehra – a girl who allegedly married out of free will – was whether our justice system should allow women to choose whom they want to spend their lives with or force them back with their parents. Would granting custody of Dua to her parents amount to giving them a licence to pressurize their daughter into a forced marriage, creating a loophole that perpetrators of forced marriages can utilize while victims suffer in silence? How do we draw the lines in the sand in our law’s protection of both child marriage victims and forced marriage victims? In light of the first Dua interview that surfaced recently, this article will attempt to answer these difficult questions.

In order to address the aforementioned questions, one must first comprehend the ‘how’ and the ‘why’, as well as the underlying rationale behind the decisions of the Sindh and Lahore high courts.

Dua had suddenly vanished from her parent’s house in Karachi. Her parents were unaware of her whereabouts until April 25, 2022 when they discovered that Dua had married one Zaheer Ahmed in Lahore, Punjab.

It is a matter of grave concern that allegedly a 14-year-old opted to exercise her free will and elope. The question this raises is: can a girl of this age be deemed to have acquired a sufficient level of maturity, understanding, and in the least contemplate the significance of the institution of marriage? The answer is it is highly unlikely, even if we justify her actions under the guise of a toxic parental atmosphere and lack of ability to exercise free will.

Due to her alleged minor age, Dua’s case is different from the routine runaway marriage court case controversy, something that substantially complicated the courts’ decision. Dua claimed to be a major, whilst her parents maintained that she was underage. To resolve this controversy, the Sindh High Court ordered the authorities to conduct an ossification test, the result of which seemed to go with Dua’s stance as her medical tests provided that her age is 16 or 17.

Under our existing laws and judicial prescriptions, a sui juris – as in a major Muslim woman – is competent to contract a marriage out of her own free will without consent or permission from a guardian (Hafiz Abdul Waheed vs Mrs. Asma Jehangir, PLD 2004). Marriage under Islamic law is a civil contract and an adult Muslim girl is competent to enter into a marriage contract (Malik Wajid case, 2020). The term ‘adult’, according to Section 251 of Muhammadan Law by D F Mulla means “a person being a male, has attained the age of eighteen years or, being a female the age of sixteen years, or has attained puberty”. In other words, Muslim marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into it.

Leaving that aside, there were also allegations that Dua was abducted by a child trafficking gang who kidnapped her and decamped to Punjab. First, our police and intelligence agencies did a commendable job by acting promptly and with diligence to secure Dua and verify the veracity of these allegations. Second, before deciphering whether this was a case of abduction or not, if Dua were forced into marriage or abducted by gangs, which is alleged, then in that particular arc can criticism of our justice system for failing to protect innocents be justified. With all the ramped-up security and an overzealous media, Dua’s statement before the Sindh High Court was: “I got married of my own free will, no one kidnapped me; I want to go with my husband Zaheer and do not wish to see my parents.”

The implications of her statement tied the judge’s hands. To explain this, it would be advantageous to look at para 13 by Justice Muhammad Ali Mazhar in the Muhammad Asif Arain case (2012 P Cr L J 1553 KAR) wherein his lordship held that: “a major Muslim woman like a major Muslim such is sui juris and entitled to the same rights and liberties. There is no law that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability.” Similarly, in Mst Saima Mai v DPO, Khanewal (2022 CLC 134 LAH) while referring to a plethora of precedents, the court held that “Article 9 of the constitution has strenuously vouched for the protections of right to life of every person and it is the duty of the constitutional courts to protect and safeguard all the fundamental rights … Therefore, it remained a consistent practice of this court to issue appropriate directions to secure right to life… and also provide safeguards to their (matrimonial) lives.”

Meaning that a sui juris means a person who has attained the age of majority and has independence and the capacity to hold full social and civil rights, and can therefore exercise the right to enter into a contract of marriage which shall be valid.

Taking that into consideration, we now see the decisions of both the courts in the Dua Zehra case.

To be continued

Khadija Siddiqi is a barrister-at-law who practises human rights law. She tweets @khadijasid751

Amad Tahir is a criminal lawyer. He tweets @klMkLOz_4