maintains that its application to Muslims in India is
mandatory. Though the institution of the qazi
(qà∂ì, Islamic judge) was abolished in British India
in 1864, there now exists in some localized areas in
India a non-governmental alternative dispute reso-
lution mechanism to decide issues of Muslim per-
sonal law. These are called Shariat Courts and are
presided over by qazis. The state has often shied
away from progressive legislation for Muslim
women as it has not wished to create a political
issue with Indian Muslims (who have also resisted
the idea of integration).
It is, however, important to point out that in
India and Bangladesh the applicable criminal law is
secular and Islamic laws have not entered into this
arena. This is the case even though in Bangladesh
the constitution was amended in 1988 to make the
religion of the republic Islam, with the rider in the
amendment that, “other religions may be practiced
in peace and harmony.” In Pakistan, the state has
taken steps to extend Islamic law outside the sphere
of personal law.
Pakistan is a declared religious state and its gen-
esis was the creation of a homeland for Muslims.
The legal system has therefore accepted that the
state and religion cannot conceptually be separated
and that it is the business of the state to ensure that
its citizens order their lives according to Islamic ide-
ology. While family law was always included, in
1979 the Hudood Ordinances expanded the scope
to criminal laws. In 1980, a Federal Shariat Court
was introduced with the power to review all laws
(except personal and fiscal laws) and to decide
whether these were in consonance with the Qur±àn
and sunna. Appeal would lie to a special Shariat
Appellate Bench of the Supreme Court.
The introduction of Islamic criminal laws had a
profound impact on the number of women who
were imprisoned and the numbers increased almost
threefold over time due to the application of the
Adultery Ordinance 1979, which covers the offenses
of rape and adultery. In 1989 the number of women
imprisoned under the Adultery Ordinance alone
was reportedly approximately 6,000.
Adultery, which under the secular British Penal
Code was defined as a private offence, was changed
under the Adultery Ordinance 1979 and made a
public offence (cognizable and non-bailable) for
which the state could initiate prosecutions. Accord-
ing to activists in Pakistan, the complainant in an
adultery case is often a member of the woman’s
own family. It is a convenient way for a husband
who wants to marry a second time to get rid of his
wife; for a father to punish an errant daughter who434 law: enforcement
does not want to follow the family’s dictates as to
whom she should marry; or an easy strategy to
remove a woman if she will inherit property. Fur-
ther, as the Safia Bibi case and the more recent
Zafran Bibi case show, the introduction of adultery
as a public offence after 1979 has made a rape vic-
tim vulnerable to a counter charge of adultery.
Zafran Bibi had filed a criminal complaint for
rape under the Adultery Ordinance 1979. Whilst
rape was not proved, on the basis that intercourse
had occurred Zafran Bibi was convicted of zinà
(adultery) under this ordinance and was sentenced
to the maximum punishment of death by stoning.
The case was taken up by the Human Rights Com-
mission of Pakistan and Zafran Bibi’s conviction
and sentence were eventually set aside.
Despite intensive lobbying efforts made by human
rights groups, even today over 7,000 women and
children are imprisoned in the 75 jails of Pakistan,
of whom more than 50 percent are women impris-
oned under the Adultery Ordinance. Almost all
these women come from the poorest sections of
society. They are especially vulnerable because of
their illiteracy, low economic status, and limited
access to legal resources. These women suffer the
dual yoke of oppression as state law is superim-
posed upon the existing tribal structure, which is
also protected by Pakistani law. As Nafisa Shah
(1998) points out, the imposition of the Hudood
Ordinances and the Qisas and Diyat Act 1990 have
added tribal characteristics to the Pakistani justice
system.
In India and Bangladesh, though women may not
be imprisoned for adultery, they are imprisoned as
in Pakistan for prostitution or murder (often of
their husbands). As in the case of their Pakistani
counterparts they come from poverty-stricken
backgrounds. In all three jurisdictions these women
are kept in overcrowded conditions without access
to health or legal aid facilities. Many have young
children incarcerated with them as these children
have no homes or family to go to. In 2002 the
Indian Council of Legal Aid and Advice filed a pub-
lic interest litigation in the Supreme Court asking
that state governments formulate proper guidelines
for the protection and welfare of children of women
prisoners. In Karachi Central Jail, Pakistan, the
children of women prisoners are taught by a teacher
whose salary is paid by a local NGO (non-govern-
mental organization), the EDHI Trust, rather than
by the government.
The judiciary and the police in the subcontinent
have taken an ambivalent view of women’s rights.
In dealing with the issue of dowry, which is preva-