he Federal Shariat Court recently declared in Prof M Ibrahim Khan and another etc v Province of Punjab etc, Shariat Petition No. 03/I of 2016 that the Punjab Protection of Women Against Violence Act of 2016 is not against any injunctions of Islam. The verdict finally lays to rest a false viewabout the Act. Unfortunately, it does nothing in terms of providing a practical solution to many victims of domestic violence in the Punjab.

One need not look further than the para-wise comments submitted by the Law and Parliamentary Affairs Department, in the case, wherein it’s conspicuously stated that the first Protection Centre under the Act of 2016 was established in Multan. The fact is that Multan is the only district in the entire province where this requirement of the law has been met.

The reason for the non-implementation of the law is that the requisite notification for it to come into force, as envisaged under Section 1(3) of the Act, has not been issued in many areas of the Punjab. It goes without saying that this is yet another example of the Legislature making a law under Article 75 of the constitution and the Executive failing to implement it under the pretext, based on surmise and conjecture, that the province lacks the necessary resources.

The legislation thus merely gives false hope to the victims, silences criticism and is nothing more than amere pretence of administration of justice.

Most victims of domestic violence approaching the authorities are afforded no protection either because the courts refrain from adjudicating on the matter on jurisdictional grounds or lack the authority to entertain the complaints after a certain period of time due to the limitation provided in Section 21 of the Act. Either way, the victims showing the courage and resolve to face their abusers are let down and denied a forum to seek justice.

In the first instance, it is averred that the Act is a special law that ousts the jurisdiction of regular courts because special laws prevail over general law. It is argued that as per Section 2(d) of the Act, only a family court established under the Family Courts Act, 1964, can entertain complaints of domestic violence. However, no notification, as envisaged under Section 1(3) of the Act, has been issued in districts other than Multan. Family courts in other districts thus lack jurisdiction so that the victims lack a competent forum. Further, the nature of the Act, which creates a special law, itself bars them from seeking redress for their grievance under general law. It’s an irony that the avenue had been available to them prior to the enactment.

The nature of the Act itself bars many victims from seeking redress for their grievance under general law. The avenue had been available to them prior to the enactment of the Act.

In the latter case, a court can only take cognizance and adjudicate upon receiving a “complaint from the District Women Protection Officer or a Woman Protection Officer acting on behalf of the District Women Protection Officer.” Since no District Women Protection Officers have been appointed, no complaint can be submitted to the court. Resultantly, the mandatory nature of Section 21 of the Act, bars the courts from providing a remedy to victims. Although a complaint can still be lodged under Section 4 of the Act by an aggrieved person, the court cannot proceed with the trial or penalise the perpetrator. In essence, the Act is rendered unenforceable, resulting in a substantial erosion, even denial, of access to justice.

At the time of this writing, no such measures have been taken to ensure the implementation of Section 3 of the Act, despite the lapse of nearly six years. This is despite the fact that Section 31 of the Act directs the government to remove within two years “any difficulty... to the provisions of the Act.”

The situation is dire. The provincial Legislature and the Executive are apparently unmindful of the menace of domestic violence. Although legislation has been enacted by the former, for the latter to implement it, the real issue, as held by Justice Ramesh Chandra Lahoti In Re: Noise Pollution, (2005) 5 SCC 733 is “with the implementation of the laws.” What is needed in the Punjab is a will to implement the law.

It is pertinent to note here that victims of domestic violence in Sindh too had, like their sisters in the Punjab, suffered due to a similar conundrum. However, the High Court of Sindh came to their rescue by exercising its powers under Article 199 of the constitution which, as held in Muhammad Suleman v SHO and others, PLD 2020 LAH 534 gives “wide powers to the superior courts to enforce fundamental rights, ensure compliance with the rule of law and provide access to justice to all citizens.” In the case of MstHina v Province of Sindh through Secretary Home Department Sindh at Karachi, PLD 2019 KAR 363, the High Court issued a writ in the nature of mandamus to various departments, directing them to ensure implementation of the Domestic Violence (Prevention and Protection) Act, 2013, and submit reports on monthly basis to ensure compliance with the court’s direction.

One way to get the Executive branch in the Punjab to perform its statutory duty is for our Judiciary to follow the precedent created by the High Court of Sindh and demand that the Executive implement the Act in letter and spirit. There should be legal consequences for a failure. The Lahore High Court itself had held in Mst Sana Khursheed v Government of the Punjab, PLD 2022 LAH 346 that when a wronged citizen cannot walk to justice, justice should walk to them “because the foundation of rule of law is the access to justice and the dispensation of justice.” It is high time for such positive and affirmative action. Without it, the victims of domestic violence lack a real remedy.

Chaudhry Amad Tahir is a criminal law  practitioner. He tweets @klMkLOz_4 Khadija Siddiqi is a barrister-at-law and a practitioner of human rights law. She tweets @khadijasid751