Student Work Cousin Marriage in Pakistan PDF

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Excellent studentwork on past questions...

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PART A Stage One - Re-inventing the Wheel Before the question detailing the specific area of work was released, I thought about what the best methods of researching the paper may be. I began by making a list of steps I could take and avenues to explore. One of the first steps was to read the examples of good work available on the law school intranet (in the way that solicitors would look at examples of best practice) and to do an internet (search engine) search on the terms “research methods” legal.1 The former method was very useful and confirmed that the other steps I had in mind should be fruitful. The latter method provided little information other than links to university courses on legal research methods. However, one site did suggest that the starting point for internet legal research is to either find a legal research page which lists legal resources on the internet or by doing a word check on a search engine.2 I checked Strathclyde’s Law and Andersonian Libraries and the LLB General Information Handbook for academic material on legal research methods and for further research ideas. The General Information Handbook contained a list of useful weblinks and although the book suggested by the search of the Law Library looked appropriate, it was however, on loan until after the due date of the assignment.3 I repeated the same search in my local library (which often has recommended text books available for loan) but again all the relevant books were unavailable. I then tried to locate a journal article on legal research methods in the Law Library and online in Athens but I was unable to find anything at all via this search.4 Finally, I checked the Centre for Academic Practice website. However, the only vaguely relevant resource there was on dissertation writing.5 Stage Two – Picking a Jurisdiction The importance of picking a jurisdiction with an appropriate amount of easily accessible information available is obvious. Ideally I wanted to consider a variety of sources as well as the relevant statutory material of both jurisdictions. My first port of call was to do an internet (search engine) search and a search in Strathclyde’s Libraries on the terms marrying “first cousin” and various combinations of marriage, cousin, consanguinity and other similar terms to see if any one jurisdiction frequently appeared. The internet search brought up several items of interest, two of which were concerned with the medical repercussions of first cousins

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I used a search engine called Search Thingy – Top ten search engines. This site allows you to do a search on their top ten list of search engines simultaneously. Please note that the search engines used for all searches related to this assignment were: Google, alltheweb, Yahoo, Hotbot, About, Excite, iWon, Northern Light, Complete Planet and Alta Vista. The web address for Search Thingy is http://www.searchthingy.com/search.asp 2 Information taken from an article by Lyonette Louis-Jacques, Legal Research Using the Internet available on-line at http://www.lib.uchicago.edu/~llou/mpoctalk.html 3 I checked for academic material on legal research methods in the law library by using the on-line catalogue. 4 In Athens I did an on-line search in Blackwell Synergry, ingenta, netlibrary and SwetsWise. 5 Although interesting to note that there is no standard practice for research in this area, all I could take from this resource was the obvious but crucial point to make sure that the question asked is actually answered.

marrying.6 One of these articles discussed research which had found that Pakistani babies had a three times greater chance of dieing than babies born to other races, due to the tradition of first cousins marrying.7 The library search produced little of relevance and as there seemed to be several articles of interest and avenues to explore on the internet, I decided to continue my research through this medium. This was compounded by the results of a general search for books relating to Pakistan in the University Libraries (there were some but not all totally relevant) and my local library (there were none at all). At this stage I did another check for journal articles in Athens and as the only result for consanguinity and marriages was Pakistan, I felt optimistic that there would be a plethora of material available.8 Before fully deciding on Pakistan however, I thought it wise to check that I would be able to access enough statutory material to actually answer the question. Therefore, my next internet search was Pakistan legislation. This led me to several useful sites as listed in Appendix One. Although I was finding it impossible to access the Pakistan government site I did have access to a variety of other sources and these highlighted a variety of organisations that may be able to assist me. A list of organisations I contacted is contained in Appendix Two. However, I did not receive any responses to any of my e-mails. Accessing legislation on domestic relations proved tricky until I realised that I was thinking about the source of Pakistan’s laws in completely the wrong way. I decided to look for background information on Pakistan and its legal system.9 I repeated a similar search for materials on this area relating to Scotland. Stage Three – Identifying Relevant Sources of Law The Islamic Republic of Pakistan, unlike Scotland, has a written constitution which was amended in 1998 as follow

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Is there anything wrong with cousins marrying? Debate on BBC Asian Network, Wednesday 24th September 2003 http://www.bbc.co.uk/asiannetwork/presenters/sonia_deol/discuss_20030924.shtml and BBC News, Health, Wednesday, 21 February, 2001, 01:58 GMT, Campaign tackles Asian child deaths by Cindi John discussed a survey by Birmingham Health Authorty http://news.bbc.co.uk/1/hi/health/1180146.stm 7 Ibid. In the Cindi John article Dr Mamoona Tahir found that genetic illnesses accounted for 40% of these deaths in the cities Pakistani community. 8 Again I searched Blackwell Synergry, ingenta, netlibrary and SwetsWise. The article was called Prevalence and perceptions about consanguineous marriages among patients presenting to family physicians, in 2001 at a Teaching Hospital in Karachi, Pakistan, Waris QIDWAI, Iqbal Azam SYED and Faisal M KHAN, The Aga Khan University, Karachi, Pakistan, Asia Pacific Family Medicine, 2003;2: 27–31 9 In particular the CIA’s World Factbook site was useful on http://www.odci.gov/cia/publications/factbook/geos/pk.html#top also useful was the Country Profile in The Foreign and Commonwealth Office site at http://www.fco.gov.uk/servlet/Front? pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029394365&a=KCountryProfile&ai d=1019041564003 and the Pakistan Index at http://www.oefre.unibe.ch/law/icl/pk__indx.html

Islam is the State religion… and it is the obligation of the State to enable the Muslims of Pakistan… to order their lives in accordance with the fundamental principles and basic concepts of Islam as set out in the Holy Quran and Sunnah.10 This 1998 Act introduced the supremacy of the Quran (Islamic equivalent of the Bible) and Sunnah (deeds and utterances [of Muhammad] that form the basis for the practice of the Muslim community).11 A recent decision of Pakistan’s Supreme Court (the highest court) has strengthened this position and in fact appears to have taken this one stage further.12 PART B The Qur’an states forbidden degree of relationships (Appendix Three).13 Chapter Four of the Book of Marriage (Appendix Four) also discusses forbidden degrees of relationships. As mentioned previously, Pakistan as an Islamic state, is in the position that all legislation has to be interpreted in light of the teachings of the Qu’ran. Therefore, as cousin is not a forbidden degree of relationship in the Qu’ran, marriage between cousins is legal in Pakistan. In fact, unlike Scotland where it is rare for first cousins to marry, it is actually very common. In a survey of 393 patients in a teaching hospital in Pakistan , 25% were either married to or were planning to marry their first cousin and a further 14% their second cousin.14 Looking at Pakistan as a whole, it has been suggested that as many as 60% of reported marriages are ‘consanguineous’ with 80% of such marriages between first cousins.15 The reason behind the popularity of first cousins marrying is largely cultural. The patients surveyed gave the following reasons why a decision to marry a first cousin is often made

10 Constitution (Fifteen Amendment) Act 1998 inserts a new article 2B into the constitution stating the supremacy of the Quran and Sunnah available on-line at http://www.pakistani.org/pakistan/constitution/ 11 Explanations taken from What does the Qu’ran really say?, CBS News http://www.cbsnews.com/stories/2003/07/25/world/main565035.shtml and the Pakistan Glossary http://atheism.about.com/library/FAQs/islam/countries/bl_PakistanGlossary.htm? terms=Quran+pakistan respectively. 12 Zaheer-ud-din v. The State 1993 SCMR 1718 concerned freedom of religion. It is interesting to note the comments made at p. 1774 “Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet as the real and the effective law. In that view of the matter, the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet are now the positive law." Futhermore at p. 1775 "Therefore, every man-made law must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet p.b.u.h.). Therefore, even the Fundamental Rights as given in the Constitution must not violate the norms of Islam. [...] Anything, in any fundamental right, which violates the Injunctions of Islam thus must be repugnant.". For a discussion of this see Centre of Islamic and middle eastern law, yearbook vol. 1, islam and fundamental rights in Pakistan, the case of zaheer-ud-din v the state and its impact of the fundamental right to freedom of religion by martin lau http://www.soas.ac.uk/Centres/IslamicLaw/YB1Zaheer-ud-din.html 13 At verses 4:22 – 24 of the Qur’an. Available on-line at http://www.islamabad.net/islam-more.htm 14 Prevalence and perceptions about consanguineous marriages among patients presenting to family physicians, in 2001 at a Teaching Hospital in Karachi, Pakistan, page 27 Waris Qidwai, Iqbal Azam Syed and Faisal M Khan, The Aga Khan University, Karachi, Pakistan,Asia Pacific Family Medicine, 2003;2: 27–31 15 Ibid, page 27

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Arranged marriage, It is healthy to marry within the family, It is traditional, It is difficult to find a mate outside the family due to religion, status, caste, family differences and the fear of incompatibility Security of knowing the mate in the family, culture and religion, and having more information about the mate before marriage16

It is also interesting to note that of the reasons above  44.7% of the patients listed ‘arranged marriage’ as their reason for consanguineous marriage and  61.6% gave constraints of religion, status and caste as their reason for difficulties in finding a mate outside the family17 According to the Foreign and Commonwealth Office the British Government is concerned about human rights violations in Pakistan.18 It is apparent from reading articles on the internet that as women can be subjected to ‘honour killings’ or accused and convicted of ‘zena’ (sex out with marriage) on little evidence (and with few repercussions for violent ‘punishment’) finding a mate in what we would consider normal circumstances here in Scotland could have horrible outcomes for the Pakistani woman.19 It is also apparent from the research for this paper, that women’s role in the Scottish and Pakistan societies are very different.20 This seems largely down to the use of the Qu’ran as a legal as well as a religious document. This does, however, place marrying your first cousin in greater context and perhaps explains its popularity in Pakistan. In Scotland the relevant legislation dealing with forbidden degree of marriage is under section 2 and schedule 1 of the Marriage (Scotland) Act 1977 (see Appendix Five). Although religion has an important part to play in many Scottish and British people’s lives (there are approximately 40 million Anglican and Roman Catholics in Britain out of a population of 60 million) it is no longer the case that the church’s beliefs correspond with the law or social beliefs of Scotland.21 Divorce is now common place as is sex (and living together) before marriage and gay relationships.22 16

Ibid, page 27 Ibid, page 28 18 Foreign and Commonwealth Office, Country Profiles, Pakistan available on-line at http://www.fco.gov.uk/servlet/Front? pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029394365&a=KCountryProfile&ai d=1019041564003 19 For information on ‘honour killing’ as accusations of ‘zena’ please see the Amnesty International website at http://web.amnesty.org and Women Living Under Muslim Laws site at http://www.wluml.org/english/ 20 It appears that women are very much second class citizens and in fact since 1983 their status has been reduced to that of half a man in relation to bearing witness in court (which makes her testimony inadmissible in rape cases). For more information see Women Living Under Muslim Laws, Publications, Dossier 3, Women’s Movement in Pakistan: State, Class and Gender available on-line at http://www.wluml.org/english/ 21 As at July 2003. CIA FActsheet, United Kingdom, http://www.odci.gov/cia/publications/factbook/geos/uk.html 22 Sex before marriage (or fornication) is disallowed by both the Anglican and Roman Catholic Church. However, the rise in teenage pregnancies and in single parents would seem to indicate a decline in ‘morality’ perhaps as a result of religion as being viewed as ‘outdated’ by many in our society. It is 17

Although I could not locate figure relating to Scotland, I managed to establish that in Birmingham in 1986/87 out of 2431 Obstetric Inpatients, 0.2% of them were in a consanguineous marriage.23 Although, such a marriage is perfectly legal perhaps equality between the sexes in Scotland, greater opportunity to meet potential mates out with your family circle and the ‘sexual freedom’ enjoyed by women in Scotland makes marrying your first cousin an almost alien concept. This highlights how important the society and culture surrounding a piece of legislation actually is. The health problems associated with consanguineous marriages are well document and there are suggestions that problems may not be as prevalent as suggested.24 In any case moral and genetic issues surrounding consanguinity have always been at the fore and were considered as part of the Kilbrandon report into the Marriage Law of Scotland presented in May 1969.25 Organised religion is often criticised as a means of control. Therefore, it could also be argued that basing an entire legal system on religion is fundamentally flawed and is the ultimate form of control. How can a defence be made when the defence may be classed as blasphemy? Pakistan in particular has been recently criticised for its anti blasphemy use of the death penalty.26 This would seem to indicate that the legal system is based on fear and control of women as property and commodities. Although, both Scotland and Pakistan allow you to marry your cousin by law, the cultural differences highlight that the social and cultural context of a piece of law is in many ways as important as the law itself. Word count: 1599

now in many ways socially accepted and certainly the social stigma of decades gone by is no longer attached to the child of un-wed parents. For further information see http://www.christian.org.uk/htmlpublications/gaymarriage.htm and http://www.painsley.org.uk/re/GCSE-Edexcel/marriage/marriage %20revision.htm 23 This is taken from http://www.consang.net/global_prevalence/tables/Europe.pdf 24 See articles in Bibliography 25 Available on-line from BOPCRIS at http://www.bopcris.ac.uk/bop1965/ref2585.html 26 See the human rights section of the Foreign and Commonwealth website on http://www.fco.gov.uk/servlet/Front? pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029394365&a=KCountryProfile&ai d=1019041564003

Appendix One – useful website’s – note not all these site’s were found by searching on the terms Pakistan legislation. Several of the site’s found through this search had links to other site’s listed below (and so on and so forth). Search Engines 1. Search Thingy http://www.searchthingy.com/search.asp

Scottish Links 2. Scottish Law Online http://www.scottishlaw.org.uk/scotlaw/statute.html. 3. General Register Office for Scotland http://www.gro-scotland.gov.uk

Legal Research Page (with lists of resources) 4. Findlaw http://www.findlaw.com/12international/countries/. 5. WorldLII at http://www.worldlii.org/catalog/3084.html 6. Advanced Legal Studies Institute http://www.nyazee.com/ 7. Pakistani legislation http://www.jamilandjamil.com/publications/main.html 8. Carrow’s Pakistani Law Links http://www.carrow.com/linkpakistan.html 9. Pakistan Lawyer.com http://pakistanlawyer.net/main.htm 10. Pakistan Law InfoBase http://www.nyazee.com/pklaw/Pakistan%20Law %20Infobase.html 11. Jus & Laye Lawyers http://www.lawfirm.org.pk/index.html

Government, Parliaments and Courts 12. Pakistan Government http://www.pak.gov.pk/govt/ – which would not open 13. Pakistani Parliament http://www.pak.gov.pk/govt/parment.htm – which would not open 14. Supreme Court of Pakistan http://www.supremecourt.gov.pk/ – which would not open 15. The British Council Pakistan http://www.britishcouncil.org.pk/index.asp 16. The Pakistan Judiciary http://www.pak.gov.pk/public/govt/judiciary.htm – which would not open 17. Pakistan Law Commission http://www.paklawcom.gov.pk/ 18. The Constitution of Pakistan http://www.pakistani.org/pakistan/constitution/

Religious Pages

19. The Holy Qu’ran http://www.islamabad.net/islam-more.htm 20. Life in Islam – marriage http://www.anwary-islam.com/life/marriage.htm 21. Pakistan glossary of religious terms http://atheism.about.com/library/FAQs/islam/countries/bl_PakistanGlossary.ht m?terms=Quran+pakistan 22. Sunnah Kitab al-nakiha (the book of marriage) http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/muslim/008.smt.ht ml 23. Muslim Education Trust http://www.metpdx.org/

Background (to Pakistan) Pages 24. Pakistan Development Gateway on http://www.pdg.org.pk/SocDev-2.htm 25. CIA, The World Factbook, Pakistan http://www.odci.gov/cia/publications/factbook/geos/pk.html 26. Country Profile, Pakistan, BBC news http://news.bbc.co.uk/1/hi/world/south_asia/country_profiles/1157960.stm 27. Foreign and Commonwealth Office http://www.fco.gov.uk 28. Law Library of Congress, guide to law online, Pakistan http://www.loc.gov/law/guide/pakistan.html 29. Pakistan Index http://www.oefre.unibe.ch/law/icl/pk__indx.html 30. Constitution, Government and Legislation – Pakistan http://jurist.law.pitt.edu/world/pak.htm 31. US Department of State – Pakistan http://www.state.gov/g/drl/rls/hrrpt/2001/sa/8237.htm

Miscellaneous 32. Amnesty International http://web.amnesty.org 33. Cousin Couples.com http://www.cousincouples.com 34. Pakistan News Service http://www.paknews.com/ 35. Women Living Under Muslim Laws http://www.wluml.org/english/ 36. The United Nations http://www.un.org/english/ 37. Consang.net http://www.consang.net/ 38. The British Official Publications Collaborative Reader Information Service http://www.bopcris.ac.uk/

Appendix Two – Organisations contacted 1. Jus & Laye Lawyers - http://www.lawfirm.org.pk/index.html 2. Women Living Under Muslim Laws http://www.wluml.org/english/index.shtml 3. Cousin Couples.com http://www.cousincouples.com 4. Foreign and Commonwealth Office http://www.fco.gov.uk 5. Pakistan Development Gateway on http://www.pdg.org.pk/SocDev-2.htm 6. Pakistan Law Commission http://www.paklawcom.gov.pk/

Appendix Three Verses 4:22 – 24 of the Qur’an state And marry not those women whom your fathers married, except what has already happened (of that nature) in the past. Lo! it was ever lewdness and abomination, and an evil way. Forbidden unto you are your mothers and your daughters, and your ...