The customary practices specifically discussed here is the practice known as swara, vani or vulver – all of which are the same in essence i.e. the practices of selling girls into ‘marriage’ in exchange for money, settling disputes with the exchange of girls and the use of girl as compensation for crimes.
This practice has been widely condemned and is illegal under various provisions of law in Pakistan.
Provisions of Law:
310. Compounding of qisas (Sulh) in qatl-i-amd:
- In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i-sulh, compound his right of qisas: Provided that a female shall not be given in marriage or otherwise in badl-i-sulh.
- Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badf-i-sufh shall not be less than the value of diyat.
- Where the Government is the wali, it may compound the right of qisas: Provided that fee value of badi-i-sulh shall not be less than the value of diyat.
- Where the badl-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari’ah, the right of qisasshall be deemed to have been compounded and the offender shall be liable to diyat.
- Badl-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.
Explanation: In this section, Badl-i-sulh means the mutually agreed compensation according to Shari’ah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property.
310-A. Punishment for giving a female in marriage or otherwise in badal-i-sulh:
Whoever gives a female in marriage or otherwise in badal-i-sulh shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than three years.
A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
- against her will
- without her consent
- with her consent, when the consent has been obtained by putting her in fear of death or of hurt
- with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
- with or without her consent when she is under sixteen years of age
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
365-B. Kidnapping, abducting or inducing woman to compel for marriage etc:
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also he liable to fine; and whoever by means of criminal intimidation as defined in this Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
In this Act, unless there is anything repugnant in the subject or context,
- “child” means a person who, if male, is under eighteen years of age, and if a female, is under sixteen years of age;
- “child marriage” means a marriage to which either of the contracting parties is a child;
4. Punishment for male adult above eighteen years of age marrying a child.
Whoever, being male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
5. Punishment for solemnizing a child marriage.
Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both unless he proves that he had reason to believe that the marriage was not a child marriage.
6. Punishment for parent or guardian concerned in child marriage.
- Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with a fine which may extend to one thousand rupees, or with both;
Provided no woman shall be punishable with imprisonment.
- For the purpose of this section, it shall be presumed, unless and until contrary is proven, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized