Fundamental Rights can only be taken away or curtailed in accordance with specific legal provisions. You can challenge any violation or curtailment of your fundamental rights in the form of a writ to the High Court or even to the Supreme Court~ On the application of any aggrieved person, the court can order any authority within its territorial jurisdiction (for the High Court this means within a particular province) to uphold fundamental rights.

For example, in 1995 Naseem Firdaus filed a writ petition in the Lahore High Court against her department, the semi-government Punjab Small Industries Corporation, alleging that she had been discriminated against on the grounds of her sex (i.e., in contravention of Articles 25 and 27). PSIC had selected a junior male colleague to a post Naseem was qualified to be selected for. The judge agreed that the PSIC had acted ‘in clear violation’ of the Constftution and Naseem won the case.

Female medical college students took a writ petition up to the Supreme Court against the discriminatory quota system which meant that girls had to secure higher marks than boys to get admission in co­educational medical colleges. The Supreme Court agreed that in this instance the quota system was a gross violation’ of Articles 25 and 22. It also pointed out that the Constitution allows discrimination only when it is a protective measure in women’s favour.

I lqbal Bibi had been kept at the Multan Darul Aman against her will on the orders of a Magistrate. Arguing her writ petition that Article 9 gave her the right of freedom of life and liberty, lqbal Bibi was released on the orders of the Lahore High Court. The court said that to hold her without lawful authority ‘would be a sin against the fundamental right enshrined in the Constitution.’

It is a positive trend in issues of fundamental rights that the superior courts in recent years have been increasingly widening the definition and scope of fundamental rights as well as accepting fewer and fewer restrictions as necessary.

When any of your other legal rights have been violated by a public authority, the Federal or provincial governments or local authority, and when no immediate and adequate remedy is available, you can file a writ in the High Court in the following circumstances:

• when the concerned authority has acted in violation of law, or not acted in the way it was required to act or in a manner which the law does not empower it to do. The court can order the authority to refrain from doing that which is not required by law or order it to do what is required by law, e.g., a false case has been registered against you.
• when an authority has ordered something to be done which the authority was not legally empowered to order. The court can declare such an act null and void
• if a public authority’s appointment is disputed or the rounds for a person holding a public office are not clear. The court can ask the authority to explain under what law and authority the office is being held -e.g., a college principal is appointed in violation of seniority.
• when a person is being held in illegal confinement against their will by a public authority or by a private person. The court can order the production of the person in court and check the reasons for confinement and set the person free if there is no legal authority - known as a habeas corpus petition, this can be used to restore he custody of children snatched by a parent away from the parent who has rightful custody or to trace persons illegally held by the state agencies.

The Rights of a Female Accused

In 1994 the Criminal Procedure Code (Sec.167) was amended to provide greater protection to accused women. These changes have greatly reduced the chances of abuse of women in custody. Any violation of the protective procedures and provisions mentioned below can be challenged in the courts.

A woman accused of an offence

• is to be arrested and searched only by female police;
• cannot be arrested nor kept in a police station (thana) after sunset and before sunrise;
• can only be interrogated in the presence of female guards;
• Magistrates can only give Police permission to keep an accused woman in police custody in cases of murder or dacoity; such permission must also record the reasons in writing;
• is to be sent to jail and can only be interrogated by the investigating police officer in the premises of the jail and in the presence of a female police officer;
• can only be taken out of jail for the purposes of an investigation during daytime and if permission is granted by a Magistrate and she is accompanied by a female police officer appointed by the Magistrate.

An accused woman’s right to bail is the same as a male accused’s rights in bailable offences (usually minor offences), but for non-bailable offences (e.g., dacoity) women are given greater benefits by the law and the courts can order that an accused woman be granted bail simply on the grounds that she is a woman (CrPC Sec.497).

Marriage

Other laws which deal with rights in marriage include the Child Marriage Restraint Act of 1929, the Dissolution of Muslim Marriages Act of 1939.

When is a Marriage Void (batil) or Irregular (fasid)?

The Nikahnama

The MFLO requires all couples to fill in a standard nikahnama (a copy is reproduced at the end of this booklet), which follows the principle under Muslim law that marriage is a contract. This contract sets out the rights of the bride and groom and, like any other contract, the conditions can be changed through mutual agreement (in writing) at any time during the marriage.

The nikahnama may be one of the most important things you sign in your life:read it carefully and make sure you take full advantage of the rights it can give you.

The Importance of Registering a Nikahnama

To claim her rights as a wife, a woman first has to prove the validity of the marriage and a registered marriage is regarded by the courts as the main proof of a valid marriage.

Without proof of marriage:

• it raises doubts about the very existence of marriage and thus it is very difficult for a woman to claim the rights due by virtue of marriage, such as haq mehr, maintenance and inheritance;
• it is very difficult for a woman to claim any of the specific rights which were agreed to in that particular marriage (e.g., the right to work during marriage, or a specific amount of post-divorce maintenance);
• doubts may be raised about any children’s legitimacy and inheritance rights;
• a woman may be exposed to charges of zina under the Hudood Ordinances.

It you lose your nikahnama or it gets damaged, you can ask the Union Council where you were married for a duplicate copy. There are always four copies of a nikahnama, including one for the bride:

make sure you keep your own copy of your nikahnama somewhere safe.

If you do not have a nikahnama and want to secure your marriage rights, or someone is harassing you by claiming you are married to them, apply to the Family Court for a Jactitation suit. This is a suit filed to silence a false claim of marriage. The verdict in the suit is a declaration of non existence or existence of marriage between two individuals. The Court will decide on evidene. To secure your rights in marriage, having a nikahnama is not a must, but its unavailability can make the situation very complicated.

16 Steps for Securing your Rights in Marriage

• Obtain a nikahnama form from the licensed Nikah Registrar of the area.
• Check that none of the clauses have already been struck out (some maulvis bring nikahnamas with important clauses for women’s rights struck out); if they have, demand another, unmarked form.Fill in standard nikahnama and:
• Record the true status of the bride, i.e. whether unmarried, divorced or widowed (clause 5).write amount of haq mehr, whether prompt or deferred, what form it is in (gold, jewellery or cash) and whetherany property given in lieu of haq mehr (clauses 13,14,15 & 16). Fill this in very carefully and make sure that whatever has been settled is correctly reflected in the written contract because whatever is written in the nikahnama will be upheld.
• state whether there are any special conditions to the marriage (clause 17) e.g., the wife has the right to work, to mobility or to pursue studies post-marriage. Such conditions prove helpful in the event of any dispute between the spouses.
• ensure the right of talaq-e-tafweez has been delegated unconditionally (clause 18). The correct way to obtain this right is to write the simple word ‘yes’. If any condition is to be mentioned it must be written in very clear words, eg., nothing vague such as ‘ba matabiq shariat’ or ‘in accordance with law’.
• state whether husband’s right of divorce is curtailed (clause 19) e.g., a lump sum is to be paid on divorce. This right can only be curtailed and not taken away completely, and any such statement in the nikahnama will have no legal value.
• Mention all other written contracts/conditions attached with the marriage relating to dower and maintenance (clause 20) e.g., maintenance in the event of divorce or provisions forjeb kharch/wife’s pocket money. Mention whether groom has an existing marriage and whether permission has been taken for contracting another marriage (clauses 21 & 22). If crossed out and later proved that husband already married, this can be used as evidence of fraud and forgery.
• Before signing, bride should read the conditions of the marriage and question anything she does not understand. Note: any conditions which are against the law will not be upheld.
• Ask bride and groom (no one else) in front of witnesses hether they freely consent to marry each other.
• Have bride, groom, 2 witnesses, and person who performs nikah sign nikahnama.
• As soon as possible after nikah ceremony have Nikah Registrar sign, seal and register nikahnama.
• Keep a copy of completed and registered nikahnama for bride to keep for herself somewhere safe.
• If jehez given, make complete list of items, stating their value, and have the groom and 2 witnesses sign the
• list as correct and formally received; as an extra recaution keep receipt of transport used to carry jehez.

Rights of the Wife in Polygamy

Under the MFLO, polygamy is restricted and permission for a man to marry again is only given under specific circumstances and following specific procedures. In the event of a violation of these procedures, the wife/wives can take their husband to court.

Polygamy: What to do if your rights have been violated

Just obtaining a wife’s permission to remarry is no permission in the eyes of the law. If the procedure described above has not been followed, the existing wife/wives and/or the new wife can report a complaint to the Union Council which will then file a case against the husband in a Magistrate’s Court or they can directly file a complaint.

Several things can then happen:

• a marriage contracted in violation of Sec. 6 of the MFLO cannot be registered and the courts only consider registered marriages to be valid;
• the haq mehr, whether prompt or deferred of the existing wife/wives becomes due; a court can order that unpaid haq mehr be recovered as arrears of land revenue;
• on complaint, if the husband is convicted for not following the legal procedure, he can be sentenced to jail, for up to one year and/or a fine of up to Rs 5,000;
• the wife/wives can file a suit for divorce under the Dissolution of Muslim Marriages Act, 1939

According to the law, wives in a polygamous marriage have to be treated equitably and this includes provision for separate living arrangements if there has been such an agreement during the marriage. Any violation of this is acceptable grounds for divorce under the Dissolution of Muslim Marriages Act, 1939.