lent among Muslims as well as Hindus, activists say
that despite the insertion of section 304B in the
Indian Penal Code in 1986 convictions are rare and
judges are often uninterested. In India it is said that
there are about 5,000 dowry deaths annually. In
all three jurisdictions allegations are consistently
made of custodial rape. A study in Bangladesh by
the NGO Odhikar documented that 13 women
were raped by members of law enforcement agen-
cies in 2000, the youngest being a girl of six.
Given the strength of patriarchal structures within
the subcontinent, the application of “Islamic”
criminal law becomes even more complex because
of its “moral” connotation. In Pakistan a definite
anti-woman bias is evident from the language used
by courts to describe a rape victim. Some of the
terms used are “loose character,” “habitual case
of enjoying sexual intercourse,” “shady person,”
“willing party,” and “woman of easy virtue.” Thus,
once women are imprisoned under the Adultery
Ordinance 1979 in Pakistan, whether rightly or
wrongly, they lose the protection of the family. In
the Bangladeshi context, Naila Kabeer (1989) also
notes that rehabilitation, whether of prostitutes,
jail inmates, or other fallen women, is determined
by notions of “purity.” As compared to male pris-
oners, women receive fewer visitors and a larger
proportion of women in prison are without legal
representation. Their contact with the family is also
broken by the fact that in all three countries, there
are fewer women’s jails than men’s jails. Women
may therefore be imprisoned away from their
hometowns. In the province of Sindh (Pakistan),
for example, there is only one woman’s jail in Lar-
kana. In Tamil Nadu, India, there are nine central
prisons and only two women’s jails.
The response of states within the subcontinent
has varied. In Bangladesh, a series of laws has been
promulgated making kidnapping, trafficking, rape,
and acid throwing offenses with a maximum
penalty of life imprisonment or death. In India,
Muslim women are governed by the secular crimi-
nal laws, which have been amended proactively. In
1983 the minimum punishment was increased in
cases of custodial rape. To contend with dowry
deaths Section 174(2) of the Indian Criminal Pro-
cedure Code now requires that in cases of death of
a woman within seven years of her marriage the
police have to send the body to a civil surgeon for
examination. In stark contrast, in Pakistan the state
has enacted discriminatory laws in the form of the
Hudood Ordinances, which it refuses to repeal on
one pretext or another, despite the recommenda-
tion of the Pakistan Commission on Inquiry for
Women (1997).
south asia 435In Pakistan, the judicial system also recognizes
tribal customary law under which killings of women
in furtherance of male honor are condoned. In
these cases a lesser sentence is given to the accused
because “sudden and grave provocation” is ac-
cepted as a mitigating factor. Even in those cases of
murder that are prosecuted, under the Qisas and
Diyat Law it is possible for the murderer to pay
blood money to the heirs of the murder victim and
thus, contrary to the principles of human rights,
murder has been made a compoundable offence.
Ironically, whilst adultery has been categorized as a
public offence that is non-compoundable, murder
has been reconceptualized as a compoundable pri-
vate offence against the victim rather than the state.
Judicial acceptance in Pakistan of crimes of honor
under the defense of grave and sudden provocation
also indicates that the tribal code of justice is not
limited to the tribal area (FATA); its principles have
a more general application within the Islamic crim-
inal laws and the Indo-British court system. In 2000,
the Human Rights Commission of Pakistan reported
that over 1,000 honor killings take place in Pakis-
tan every year. These are generally not prosecuted.
In Bangladesh, as the state has begun to sponsor
Islamization, activists say that in rural areas women
are now increasingly facing trials through the fatwa
(religious judgment). Village elders usually form a
salish or tribunal from which women are excluded,
as they are in Pakistan from the tribal jirga.
Interestingly the tribal jirgadoes not sanctify itself
by applying Islamic law, but the Bangladeshi salish
has meted out “Islamic” punishments in contra-
vention of the Penal Code and some women have
been publicly flogged.
Whether finding its justification in religion or
tribalism, the ultimate effect of the interplay of
tribal laws, customary practices, Islamic law, and
Indo-British traditions is to deprive women, and
any advantage or opportunity offered by one law
or system is cancelled out by the other.
The subordination of women through violence
cuts across all cultures and religions within the sub-
continent. In Pakistan the situation is starker
because of state-enacted Islamic criminal laws that
reinforce women’s secondary status and are not
used for her protection but rather for her policing
and punishment. By allowing imprisonment of
women in large numbers under the Adultery
Ordinance the law has provided an additional tool
of oppression for men to wield in Pakistan.Bibliography
N. Ahmad, The position of women with reference to the
Pakistan criminal justice system, in Alam-e-Niswan 1:1
(n.d.), 57.