“I feel alone,” a woman anonymously confessed to Geo News, “Everyone has moved on with their lives, except me. I pretend to look happy in front of my parents, since I know that they are worried about me. But this is my life now.”[1] From Nayab Gohar[2]to Fatmat-uz Zuhra,[3] being victims of the customary practice of “ghag” has permanently changed their lives. The Pashto word, also written as “ghagh” or “ghak”, roughly translates to a call, proclamation or announcement made by a male member of the community to invoke a marriage claim on young girls and women.
The custom has existed in tribal regions for several hundred years, continually transgressing the rights of women. In majority of instances, the declaration for marriage is enforced by firing rounds of bullets at the gate of the woman’s residence. Sometimes, where the act is not incited by revenge or other political reasons, a messenger is sent to the house informing the family of the man’s intentions. Not only is ghag invoked without prior consent of the family and girl involved, but it also renders the girl unavailable to other marriage proposals and bars her from marrying another man unless she is freed from the ghag by the man. However, this is largely redundant since ghag, unfortunately, subjects the girl to a lifelong stigma. Consequently, the right to marriage is interfered with.
The practice is prevalent in Pakhtun-dominated regions of Khyber Pakhtunkhwa (KP).[4] Historically, it is linked to the birth right of male cousins, particularly paternal ones, over their female cousins, irrespective of whether the girl intends to partake in such a marriage. Majority of the time, advancing a ghag claim deters potential suitors as to avoid inter-clan rivalries, suitors consider it best to not interfere. In cases where interference is seen, the matter morphs into one of honour or “ghairat” and inadvertently leaves a lifelong mark on the girl, her family, and the tribe.[5] Unofficial estimates suggest that in 2016, nearly twenty girls committed suicide following the claim of ghag,[6] however, the real numbers are likely to be much higher since the practice is significantly underreported due to stigma.
Begum Shaista Ikramulla, a Pakistani drafter, acknowledged the importance of recognising “a code of civilized behaviour” such as the Universal Declaration of Human Rights (UDHR) which not only concerns international relations but extends to domestic affairs like marriage.[7] Article 16 of the Declaration stipulates that both men and women are entitled to a free marriage where full consent of the intending spouses is present. On this basis, the customary practice of ghag contravenes human rights under the UDHR and other international human rights instruments.[8] A South African Judge, Albie Sachs, once said, “Denying people access to marriage … [means] denying them the status and dignity of being ordinary citizens in society.”[9] This is particularly insightful and highlights the recognition of individuals – women in this case – as humans with free will within the societal framework.
Not only do international agreements grant the right to marriage, but both Pakistan’s Constitution and Shariah law empower women to enter valid marriages with their free consent. In 2012, Sitara Ayaz, the then Provincial Minister for Social Welfare and Women Empowerment (2008-2013), proposed a bill to eradicate the custom of ghag.[10] The KP Provincial Assembly unanimously enacted the Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013 (Ghag Act)[11] to criminalise the custom. The Ghag Act is brief and to the point, with a total of nine provisions dealing with both substantive and procedural elements. The statute elucidates the term “ghag” as:
“[A] custom, usage, tradition or practice whereby a person forcibly demands or claims the hand of a woman, without her own or her parents’ or wali’s will and free consent, by making an open declaration either by words spoken or written or by visible representation or by an imputation, innuendo, or insinuation, directly or indirectly, in a locality or before public in general that the woman shall stand engaged to him or any other particular man and that no other man shall make a marriage proposal to her or marry her, threatening her parents and other relatives to refrain from giving her hand in marriage to any other person, and shall also include obstructing the marriage of such woman in any other manner pursuant to such declaration.”[12]
The definition is wide to accommodate all acts that could potentially be perpetrated. The punishment for ghag is not less than three (3) years and up to seven (7) years imprisonment and/or payment of a fine of up to five hundred thousand rupees (PKR 500,000/-).[13] The offence is cognizable, non-bailable and non-compoundable which grants it considerable power as a deterrent. In addition, those who wilfully aid or abet the crime of ghag are subject to the same punishment as provided above.[14] Moreover, the Court of Sessions has jurisdiction to try the offence following the procedure laid down under the Code of Criminal Procedure 1898. Further, the legislation has overriding effect over other laws on account of it being a special law.
Although the prohibition of the custom is a milestone for the legal system and for women who have been and are likely to become targets of the practice, cases are underreported, and the law has not been applied fruitfully. In 2017, the Peshawar High Court (PHC) heard a petition instated by Nayab Gohar, a twenty-nine-year-old woman, accusing her uncle and cousin of invoking ghag.[15] In the exercise of her “option to puberty”, the marriage proposal sent by the accused, Abid Saleem, was rejected. [16] In 2011, when Abid failed to forcefully marry the petitioner, he fired shots at her father. Consequently, the petitioner abandoned her studies and confined herself to her home for nearly two decades. The petitioner’s lawyer explained that even though a First Investigation Report (FIR) was registered under the Ghag Act at the Kharakai police station in Peshawar, the local court granted Abid bail.[17]
While hearing a petition filed by Amina, the PHC, comprising of Justice Ikramullah Khan and Justice Ishtiaq Ibrahim, declared that nobody is allowed to use the word “ghag” during proceedings and that the petitioner “has the right to marry a man of her own choice.” [18] They further added that “nobody can seize this fundamental right from a girl” and that whoever acted unlawfully would be punished accordingly.[19] Despite evidence and arguments presented by the petitioner’s lawyer, the respondent successfully argued that the court had no jurisdiction to enforce the Ghag Act in the then province of FATA. Such an argument would not have been valid if the statute was not limited in its application, therefore, as Sitara Ayaz suggested, similar legislation should be adopted by the federal government so that punishment is not simply restricted to Pakhtun regions. [20]
In 2021, Zainab, a twenty-three-year-old girl became the target of ghag when the accused, Khan Mohammad, approached her home with the intent to marry her, refusal of which would result in dire consequences. [21] The case was registered at the Raghzai Police Station where the SHO, Habibul Islam, told The News that the accused was arrested. Inamullah Gandapur, DSP of South Waziristan, told The News that three more cases of Ghag were reported in Azam Warsak Police Station last year and prompt arrests were made. The DSP also highlighted that, with the help of locals and civil society, the police are working towards raising awareness of and eliminating the practice of ghag.
However, several problems persist. For instance, in certain cases, jurisdiction becomes a contention while in others, bail is granted even though the Ghag Act clearly stipulates that the offence is non-bailable. The enactment of an area-specific law provides jurisdictional challenges and is counterproductive since the custom would be prohibited in KP but if a man invoked ghag in Islamabad or Karachi, it would not be recognised as an offence. Additionally, Mariam Bibi, a social worker in Peshawar, is of the view that enforcement is key in eradicating the custom.[22] The enactment of a federal statute or incorporation of the offence into the Pakistan Penal Code would act as a more effective preventative measure. Not only this, but a greater degree of awareness is also required in both rural and urban areas of society so that victims can seek redressal from courts and report incidences of ghag.
Moreover, the judiciary and police should be equipped with a better understanding of how the law is to be applied. As is obvious from the examples above, the granting of bail for a non-bailable offence can become a cause for concern. Nevertheless, a combination of awareness campaigns, greater police action, and stronger judicial application should eventually bring the chapter of ghag to an end for the women of Pakistan.
References
[1] Mehmood Jan Babar, ‘No Way Forward or Back: Ghag, the Oppressive Tribal Practice’ (Geo TV) <https://www.geo.tv/latest/181470-no-way-forward-no-way-back> accessed 2 March 2022.
[2] Waseem Ahmad Shah, ‘Woman Moves PHC Against Ghag Custom’ Dawn News <https://www.dawn.com/news/1325552> accessed 2 March 2022.
[3] Akhtar Amin, ‘Ghag’ Case Accused Granted Bail After Apology in PHC’ The News (15 March 2019) <https://www.thenews.com.pk/print/444180-ghag-case-accused-granted-bail-after-apology-in-phc> accessed 2 March 2022.
[4] Neha Ali Gohar, ‘Honour Crimes in Pakistan. Unveiling Reality and Perception’ (2014) Community Appraisal and Motivation Programme (CAMP) <https://fid4sa-repository.ub.uni-heidelberg.de/3380/1/HC%20Report%20CAMP.pdf> accessed 2 March 2022.
[5] Ibid.
[6] Babar, supra note 1.
[7] OHCHR, ‘Universal Declaration of Human Rights at 70: 30 Articles on 30 Articles – Article 16’ <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23927&LangID=E> accessed 2 March 2022.
[8] International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.
[9] OHCHR, supra note 7.
[10] Mohammad Ashfaq, ‘KP Assembly Bans Forced Marriage Under Ghag’ Dawn News (8 January 2013) <https://www.dawn.com/news/777316/kp-assembly-bans-forced-marriage-under-ghag> accessed 2 March 2022.
[11] Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013.
[12] Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013, s 2(1)(b): Explanation – For the purpose of this definition, ghag shall also include “awaz”, “noom” or any word or phrase, denoting such declaration.
[13] Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013, s 4.
[14] Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013, s 5.
[15] Shah, supra note 2.
[16] Ibid.
[17] Ibid.
[18] Akhtar Amin, ‘Nobody Allowed to Use the Word ‘Ghag’: PHC’ The News (19 December 2017) <https://www.thenews.com.pk/print/257783-nobody-allowed-to-use-the-word-ghag-phc> accessed 2 March 2022.
[19] A. M. Khan, ‘Man Booked in Peshawar for “Ghaging” Chitrali Student’ Chitral Today (21 October 2020) <https://chitraltoday.net/2020/10/21/man-booked-in-peshawar-for-ghaging-chitrali-student/> accessed 2 March 2022.
[20] Abubakar Siddique, ‘“Ghagh”: The Pashtun Custom of Men Forcing Marriage proposals on Women’ The Atlantic (9 December 2012) <https://www.theatlantic.com/international/archive/2012/12/ghagh-the-pashtun-custom-of-men-forcing-marriage-proposals-on-women/266059/> accessed 2 March 2022.
[21] Bureau Report, ‘Ghag Custom Still Continues as South Waziristan Reports Cases’ The News (18 February 2021) <https://www.thenews.com.pk/print/791650-ghag-custom-still-continues-as-south-waziristan-reports-cases#:~:text=On%20January%2015%2C%202021%2C%20a,three%20days%20after%20the%20incident.> accessed 2 March 2022.
[22] Siddique, supra note 20.
