Saadia Toor, "Gender, Sexuality, and Islam under the Shadow of Empire"
(page 4 of 7)

'Runaway Marriages' and the Saima Waheed Case:

In February 1996—almost ten years after the mysterious death of General Zia and Pakistan's return to democracy—22-year-old Saima Waheed married against the wishes of her parents, leading to a contentious legal battle which gripped the country and generated a 'moral panic' around the issue of women's status within 'Islam' and Pakistani society.[24]

Legally, the issue seemed fairly straightforward. A precedent-setting case had already established, without ambiguity, that an adult Muslim woman in Pakistan had the religious and legal right to contract marriage on her own behalf, without the intercession of a wali or legal guardian. Moreover, such 'runaway marriages' are hardly news even—or perhaps especially—in socially conservative societies such as Pakistan, characterized as they are by gender segregation and the institution of arranged marriage, and social strictures regarding marriage across caste/class/ethnic divides; in fact, they are often the only means for young men and women to assert some modicum of control over their lives.[25]

Saima was the college-educated daughter of an economically and politically influential family, the Ropris. Arshad Ahmad, the man she chose to marry, was a teacher at a government college in a small town. To give a sense of the class divide here, Ahmad supplemented his income of Rs 5000 a month (less than $60) by giving private lessons, while Saima's pocket money alone—which she received as a director of her father's company—was double that.

Saima informed her parents of her desire to marry Arshad, and his parents, following prescribed social norms, formally proposed marriage to her family. However, when it became clear that her family was not only rejecting the proposal but intended to marry her elsewhere, Saima took decisive action. She and Arshad married in the office of a friend of his (a lawyer) with all the required legal and religious protocol. Saima returned home immediately afterwards, and some days later broke the news to her family, expecting that they would capitulate in the face of a fait accompli and agree to a formal public ceremony. Instead, she was beaten, drugged, and deprived of food for several days. She finally managed to escape and elicit the services of Asma Jahangir, a prominent women's and human rights lawyer, a veteran of the Zia period and the bête noir of religious conservatives (Saima's father and uncle were prominent leaders of a highly conservative Sunni sect). Thus the decision by a daughter of the Ropri family to publicly violate the norms of this new, upwardly mobile orthodoxy was no laughing matter—the fact that she elicited the support of Asma Jahangir and chose to live in the women's shelter run by her law firm was to add insult to injury. They responded by subjecting Ahmad's family to physical harassment, and by filing an FIR (First Information Report) with the police, challenging the legality of her marriage to Ahmad.

These, then, are the factors which turned an ordinary story of a runaway marriage into a battle for the consolidation of class and patriarchal power played on a national stage. In the legal discourse around the case, Saima's exercise of a right granted to her both by secular and religious law was understood and projected as quintessentially transgressive, and hence shameful both at the familial and national level. This act of moral depravity on her part was connected to the "loss of cultural purity caused by the combined influences of neo-imperial designs and the treachery of their local collaborators,"[26] the latter, of course, an open reference to feminist activists in general, and her lawyer, Asma Jahangir, in particular.[27]

The discourse around the case abounds in the established and familiar postcolonial binaries of East/West, tradition/modernity, public/private, sacred/profane. These need to be understood, first and foremost, in the context of Pakistan's colonial history and its contemporary postcolonial condition—a people struggling to forge an identity in a society undergoing rapid social and economic change, and secondly, vis-à-vis the power strategies of the socially ascendant Islamist classes engaged in a struggle for hegemony within Pakistan—forging alliances with the older elite while at the same time seeking to displace them. Class struggle is itself always already a gendered process, both discursively and materially—a fact not often noted in most Marxist or feminist writing. The attempt of a rising class or class faction to replace another one is also simultaneously about the clash between different and competing patriarchies or patriarchal arrangements. Taking account of this class context also highlights the status of women within kin-networks, where they function as commodities to be exchanged—and the role of marriage in consolidating class power. Hence the rhetoric of marriage as something too important to be left to the men and women concerned.

The intersection of class and patriarchy is evident also in the anxiety around Asma Jahangir, the lawyer. This anxiety reflected the fear of emasculation by the 'uppity' and depraved woman and is also-already a class anxiety—in their struggle for hegemony, the upwardly mobile class represented by the Ropris projected Jahangir as a representative of the 'Westernized' and 'morally bankrupt' bourgeois class.

Ultimately, the Saima case was not simply about 'secular liberals' versus 'religious conservatives,' or even 'fundamentalists.' Even socially progressive individuals who supported her actions on principle were heard expressing insecurity about the precedent it set for their own daughters, underlining the fact that the control of female sexuality is not the purview of religion alone. The Saima case is thus a fascinating lens into the field of struggle between different patriarchies, highlighting as it does the very way in which they sometimes contradict, and sometimes reinforce one another. In fact, if anything, this case illustrates the premium placed on controlling female sexuality across class lines.

Saima's case was argued, and ultimately judged, not within the terms of existing Muslim family laws in the Pakistan Penal Code or the Shariat—both of which were unambiguous in their understanding of the rights of adult Muslim women with regard to marriage—but on the undesirability of filial disobedience, to the extent that the judgments of both Justice Chaudhry and Justice Ramday, while diametrically opposed, expressed the desirability that parental authority be juridically enforceable. Although both judgments talk of this obedience in general terms it is clear, given the context of the case, that the anxiety they express is not just a generalized one regarding parental control over children, but a very specific anxiety over female (sexual) agency.

This case highlights the fact that despite ubiquitous references to 'Islam,' the 'Shariat,' and even Pakistan as the 'Islamic Republic,' it is in fact patriarchy—or rather patriarchies—that were at issue here. When it came to the issue of the legality of the marriage, Saima's case was fairly straightforward and easily resolved by recourse to legal precedence alone. In fact, the Lahore High Court did validate her marriage on legal grounds, albeit through a split verdict. The judgments of the three judges provide an extremely interesting lens into the complexities of patriarchy within Pakistani society.[28] Among other things, they demonstrate that 'Islam'—whether as a basis for individual/national identity, as a religious and cultural system, or as a set of injunctions encoded in theological and juridical textual sources—is always/already an internally contested discourse rather than a monolithic and internally coherent thing.

Saima's case is also a fascinating glimpse into the habitus of her particular class, and its complex and contradictory relationship to an increasingly global capitalist modernity. Despite the conservative nature of her family, Saima was hardly a stereotypically oppressed or even a 'traditional' young woman by Pakistani standards. She was active in intercollegiate (and therefore non-segregated) events, which is where she first met Arshad. Her father was not only aware of her attendance at such events—despite the gender segregation that was the norm within the family—but by all accounts took intense pride in her achievements. She owned a car and a mobile phone, both symbols of mobility and autonomy as well as wealth and social status. Daughters of the Ropri family were also not denied access to other accoutrements of wealth such as swimming and riding, both activities associated with the Westernized upper classes. Their dress code was also unconventional—they wore jeans and t-shirts at home and, even when outside, continued to wear them under the hijab. Thus the 'fundamentalist' (if there is such a monolithic figure) does not unequivocally despise the West or 'modernity,' understood as commodities—cultural and otherwise.

But all these accoutrements were given to Saima to enhance her father's social status, in particular by making her a more desirable commodity on the marriage market, which her father could expect to deploy to his strategic advantage, given that marriages in Pakistan (as elsewhere) are still very much about cementing relations between men. The minute she challenged his authority, these markers of privilege were summarily taken away, as was her mobility. Saima, on the other hand, understood her education as a means of asserting her independence.[29] The fact that her father explicitly exposed his daughters to the very accoutrements associated with 'Westernized modernity' and the 'depraved' upper classes as a means to secure social status shows the complex and contradictory relationship between desire, class, and patriarchal interests especially as mediated through/by the processes of economic and cultural globalization. Saima's own articulation of her position can thus perhaps be seen as a neat if ironic illustration of the notion of 'unintended consequences.'

Any attempt to unpack cases such as Saima's requires an understanding of the ways in which 'the law' itself is constructed and operationalized—in particular how, in postcolonial states, the law is itself a contested and contradictory institution. In the case of Pakistan, for example, we have to understand the colonial antecedents of the (secular) Pakistan Penal Code which is officially the 'law of the land,' the postcolonial context of the appellate Shariat courts and the various 'Islamic laws' introduced by Zia, and the many customary codes which continue to operate in some of the tribal regions of Pakistan. And lest we assume that the regulation of women or sexuality in Pakistan can be traced to the 'Islamization' of the law under Zia, we need to remember the delightful colonial legacy called the "Family Laws" that are part of the penal codes of India, Pakistan, and Bangladesh. Developed by the colonial state as part of its attempt at compromise and conciliation with the natives, the various "Family Laws" essentially made the control of women (code for 'family') the exclusive purview of 'their' community. The British had already decided that the most organic basis for community in India was religion, and so we had the "Muslim Family Laws," the "Hindu Family Laws," and "The Christian Family Laws," etc. And let us not forget the "grave and sudden provocation" provision of the colonial code (derived from British law) under which men could kill their wives on the mere suspicion of adultery. We should also note another infamous colonial law known as "Section 377" (of the Penal Code) which the countries of the subcontinent share with many other British ex-colonies, such as Barbados and Trinidad, which has allowed the police to harass gay men in public spaces, but which, interestingly, has never been deployed in Pakistan.

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