Law and Policy Review (LPR)

Volume 3 Issue 1, Spring 2024

ISSN(P): 2076-5614, ISSN(E): 3007-4290
Homepage: https://journals.umt.edu.pk/index.php/lpr

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Title: Discrepancy between Ideals and Realities: A Socio-legal Study of

Women’s Rights in Pakistan
Author (s): Mir Ahmad Murtiza
Affiliation (s): University of the Punjab, Lahore, Pakistan
DOI: https://doi.org/10.32350/lpr.31.03
History: Received: January 16, 2024, Revised: June 01, 2024, Accepted: June 16, 2024, Published:
June 28, 2024
Citation: Murtiza, M. A. (2024). Discrepancy between ideals and realities: A socio-legal
study of women’s rights in Pakistan. Law and Policy Review, 3(1), 48–77.
https://doi.org/10.32350/lpr.31.03
Copyright: © The Authors
Licensing: This article is open access and is distributed under the terms of
Creative Commons Attribution 4.0 International License
Conflict of Author(s) declared no conflict of interest
Interest:

A publication of
School of Law and Policy
University of Management and Technology, Lahore, Pakistan
 Discrepancy between Ideals and Realities: A Socio-legal Study of
Women’s Rights in Pakistan
Mir Ahmad Murtiza ∗
University Law College, University of the Punjab, Lahore, Pakistan
Abstract
Women’s rights have always been a sensitive part of the human rights
legislation in Pakistan. Moreover, pro-women laws have never been truly
implemented in Pakistan because of a host of social and institutional
quandaries, broadening the disparity between men and women.
Comprehending the causes of the poor implementation of these laws
requires a deep analysis of their social dimensions. This paper attempts to
uncover several underlying social factors that hinder the implementation of
pro-women laws. It is found that the fundamental reason for the improper
implementation of pro-women laws is the friction between competing moral
orientations of different factions of society. In the legal system, this friction
manifests itself in the form of inconsistent tendencies in law-making and
judicial adjudication, plaguing the workings of the legal system. The paper
recommends developing an approach to address women’s issues that
prioritizes fundamental rights of women while paying due regard to
Pakistan’s socio-cultural traditions.
Keywords: conservatism, human rights, interpretative study,
modernism, social confusion
Introduction
The problem of women’s rights is an issue of global import, but it attracts
unusual controversy in societies that find themselves betwixt and between
the unabating urge of modernity and the unrelenting vestiges of their
traditional past. Such societies often endured colonial domination that rents
asunder the very foundations of their social institutions, making these
societies less capable of sustaining their distinct identity. In addition to
colonial experience, the insurmountable pressures exerted by the forces of
globalization tend to perturb the socio-cultural balance of these societies.
Consequently, they witness the unrestrained and chaotic strife between
those who tend to embrace modernity and those who struggle to cling to the

∗
Corresponding Author: [email protected]
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rope of tradition. Indeed, Pakistan is a perfect example of such societies.

In Pakistan, the modernists and conservatives contest to define the social
and legal status of women. As a result, confusion ensues and halts the
effective execution of laws that seek to advance women’s rights, thereby
leading to the discrepancy 1 between the lofty aspirations of women and the
gross realities of the socio-legal domain.
The concept of human rights is one of those few ideas that are almost
universally acknowledged, and appeals to human rights are repeatedly made
by various individuals and groups across the globe to substantiate their
claims (Sen, 2004). This paper also takes a human rights approach to
women’s rights—an approach that believes in the complete human
personality of women and champions the provision of all fundamental
human rights to them. Human rights can be described as those ethically
justifiable claims (Marks, 2014) of individuals to which they are entitled by
virtue of being members of humankind. These ethically justifiable claims
or demands entail certain distinct obligations on actors (Renteln, 1988),
both public and private, to treat human individuals in ways that are
consistent with the inherent sanctity of human personhood. To treat
women’s rights as human rights means to treat women as complete human
individuals worthy of the same treatment as men (Bunch, 1990). It has been
argued that the traditional concept of human rights has been built on male
experiences and does not respond to “the most pressing risks women face”
(Charlesworth, 1994, pp. 58–84). Therefore, treating women’s rights as
human rights also enriches human rights discourse by incorporating
women’s experiences.
The law does not function in a vacuum: it operates within a particular
social context, and people’s interactions with the law are mediated by their
social groups (Nadler, 2017). The studies in “sociology of law” have
opened a possibility for a profound understanding of this multi-dimensional
social reality of law (Gurvitch, 1947) and to better appreciate the mutual
interactions between society and its laws. The dilemmas concerning the

1
According to the Global Gender Gap Report 2023 of World Economic Forum (WEF),
Pakistan has been ranked 142nd out of 146 with a 57.5 % gender parity. Pakistan ranked
142nd in economic participation and opportunity, 138th in educational attainment, 132nd in
heath and survival, and 95th in political participation. Ahmed, Amin. (2023, June 21).
Pakistan ranks 142 out of 146 countries in WEF’s global gender gap report. Dawn.
Retrieved from https://www.dawn.com/news/1760949.
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social status of women lie at the heart of any society and are the subject of
controversy among scholars of all social sciences. Many legal scholars have
also focused on studying the interplay between women and legal institutions
from a sociological perspective. Subscribing to the thesis that law reflects
the intellectual, social, economic, and political conditions of a society
(Vago, 2009), this paper seeks to examine these conditions in order to
understand the underlying causes that frustrate the adequate implementation
of pro-women laws in Pakistan.
Methodological Concerns
The paper seeks to investigate the causes of the ineffective implementation
of pro-women laws in Pakistan by an interpretive study (Wiesner, 2022) of
the social conditions prevailing in the country. It employs qualitative and
doctrinal methods (Pattaro, 2006) to understand the interactions between
women and the legal system in Pakistan. In view of this, it reviews existing
literature on the issue and attempts to develop a novel approach to
understanding the condition of women in Pakistan. A comprehensive
understanding of the interaction between women, social forces, and the
legal system requires an appreciation of the historical dimension. Therefore,
the study includes a historical study of women’s rights legislation. Instead
of discussing each and every legislation concerning women’s rights, it
analyses only those legislations in detail that have consequential bearings
on the condition of women’s rights.
Historical Sketch of Women’s Rights Legislation
The earliest pieces of legislation on women’s rights date back to the time of
the British Raj in the Indian Subcontinent. The British rulers sought to bring
changes in Indian society in general and Indian family in particular by
legislating against (1) child marriages, (2) sati, (3) the restraints on the
remarriage of widows, etc. (Chitnis & Wright, 2007). These legislative
endeavours by the colonial empire often raised hackles of almost all strata
of the society because they were perceived to be foreign incursions on the
perennially adored norms, which were deemed sacred by their votaries.
Without addressing the concerns of the locals, the British colonists
proceeded with their reformist agenda. The legislative reforms during the
British Raj had a lasting impact on the structure of society and redefined
traditional gender relations in many ways (Burton, 1994; Liddle & Joshi,
1985). Many of the legislations of the colonial period are still in force and

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continue to be the subject of vigorous debate. In this regard, two legislations

merit special mention: The Child Marriages Restraint Act 1929 and the
Dissolution of Muslim Marriages Act 1939. Child Marriages Restraint Act
1929 penalized child marriages, and the Dissolution of Muslim Marriage
Act 1939 provided the right of divorce to Muslim women. All schools of
fiqh permit the marriage of minors, while the minor has a right to repudiate
marriage upon attaining puberty. The issue of setting a minimum age for
marriage has been a subject of controversy between conservatives and
reformists. Though the Council of Islamic Ideology declared the Child
Marriages Restraint Act 1929 unIslamic in 2014, the Federal Shariat Court
held in 2021 that setting a minimum age for marriage is not unIslamic and
that the state has the authority to set a minimum age for marriage (Iqbal,
2021), bringing the confusion to the limelight. Similarly, the judiciary’s
propensity to broaden the scope of women’s right to divorce has been
criticized by conservative scholars of religion (Abbasi, 2017, 2019).
Muhammad Ali Jinnah, the founder of Pakistan, was a moderate Muslim
and strongly believed in gender equality and women’s rights (Khan, 2013).
After independence, the new dominion of Pakistan did not pay much
attention to the issue of women’s rights (Khan, 2013). Nevertheless, some
feats may have significance. For example, Pakistan ratified the Convention
on the Political Rights of Women (1953), and the first constitution of
Pakistan granted dual voting rights to women. Women could vote in
elections to the general seats and in elections to women’s reserved seats
elected from special territorial constituencies (Khan, 2013).
A major breakthrough for women’s rights came with the promulgation
of the 1961 Muslim Family Laws Ordinance (“MFLO”) by Field Marshal
General Ayyub Khan. The MFLO mainly related to the procedural aspects
of Muslim Personal Law (Shah, 2006). The ordinance provided for (1) the
registration of marriages (MFLO, Section 5), (2) penalization of second
marriage if without the consent of the first wife (MFLO, Section 6), (3) a
mandatory notice of Divorce (MFLO, Section 7), (4) women’s right to
divorce if delegated at the time of marriage (Section 8), (5) the right to
maintenance (MFLO, Section 9), and (6) the presumption of dower being
payable on demand in the absence of any contrary stipulation in the
marriage contract (MFLO, Section 10). By providing 90 days for a divorce

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to become effective, MFLO seemed to illegalize 2 the practice of triple talaq

(Abbasi & Cheema, 2018). The issuance of this ordinance provoked the ire
of conservatives and also received harsh opprobrium from religiously
oriented political parties. Moreover, it ignited a debate between
fundamentalists and moderates on the status of women in Islam and the role
a modern Muslim state can legitimately have in the determination of the
rights and duties of its citizens under Shariah (Ahmad, 1993).
After the Ayyub regime, the political climate of the country remained
extremely unsettled. Any meaningful legislation was simply impossible
during this time. However, expectations were high when Zulfiqar Ali
Bhutto came to power. Z. A Bhutto was seen as a progressive leader with
a reformist bent of mind. Bhutto’s principal contribution to women’s rights
was the 1973 constitution. The 1973 constitution prohibited any
discrimination on the basis of sex (The Constitution of Islamic Republic of
Pakistan 1973, Article 25) and made each “organ and authority of the state”
(The Constitution of Islamic Republic of Pakistan 1973, Article 29)
responsible for ensuing “full participation of women in all spheres of
national life” (The Constitution of Islamic Republic of Pakistan 1973,
Article 34) and for the protection of “the mother and the child” (The
Constitution of the Islamic Republic of Pakistan 1973, Art.35) All
subsequent pro-women legislations receive their normative and legal
authority from this constitution. Bhutto also passed the Dowry and Bridal
Gifts (Restriction) Act 1976, which regulated and somewhat restricted the
ignominious practice of dowry. However, Bhutto could not take any
practically substantial steps for the amelioration of women’s rights since he
had to compromise with the clerical and feudal elites and could not let a
“peripheral issue” like women’s rights imperil his political capital (Khan,
2013, p.730).
On July 5, 1977, General Zia ul Haq overthrew the government of Z. A.
Bhutto and imposed martial law in the wake of severe protests by the
opposition under the banner of the Pakistan National Alliance (PNA). Zia’s
rule lasted for almost 11 years and saw the acute deterioration of human
rights in the country. To provide his regime with a veneer of legitimacy, he
began a process of Islamization based on an ultraconservative interpretation
of Islam and presented himself as the true “soldier of Islam” (Daechsel,

The law on triple talaq is far from settled due to the existence of conflicting judgements.
2

However, courts have always interpreted this provision to favour women.

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1997). To Islamise the criminal law of the country, Zia promulgated hadud
ordinances, which were based on a particularly parochial interpretation of
traditional Islamic criminal law. Many Muslim scholars do not agree with
the interpretation on which hadud ordinances were based and have
presented alternative versions (Fadl, 2017; Ghamidi, 2010). Of these hadud
ordinances, the ordinance relating to zina gained much notoriety and
generated significant dissension. Critics contend that the Offence of Zina
Ordinance was prejudiced against the rights of women and had the
possibility of convicting rape victims instead of providing any relief to the
beleaguered women (Abbasi, 2017, 2019).
They argue that the requirement of four credible male witnesses for a
conviction for zina bil jabr (rape) not only reduced the possibility of
conviction but also put the victim at risk of conviction for Zina (fornication)
for merely lodging a rape complaint that failed owing to the high threshold
of proof. This apprehension seemed to be validated by the much-publicized
case of Safia Bibi. Safia Bibi was a blind unmarried girl who became
pregnant and gave birth to a child in July 1982. She alleged that her landlord
Maqsood Ahmed was the father of the child, as he had raped her nine
months earlier. Consequently, Maqsood Ahmed was charged with rape, and
Safia Bibi was charged with fornication. Maqsood Ahmed escaped
conviction due to the prosecution’s failure to provide four credible male
witnesses. On the other hand, Safia Bibi’s pregnancy was taken as proof of
Zina, and she was sentenced to three years in prison, fifteen lashes, and a
fine of 1,000 rupees. Though the Federal Shariat Court later overturned the
sentence, this incident attested to the possibility of an anti-victim use of the
said ordinance (Kennedy, 1991). Women’s rights activists also criticized
the Qanun e Shahadat Order for it attributed half value to the testimony of
female witnesses as compared to male witnesses in “matters pertaining to
financial or future obligations” (QSO 1984, Art.17). Women’s testimony
also became inadmissible in cases of qisas and hadud (Imran, 2005). Zia
also proposed the Qisas and Diyat Ordinance, which provided half of the
diyat in the case of female victims compared to male victims (Kirmani,
2000).
In 1988, Benazir Bhutto became the first female Prime Minister of
Pakistan. Her election campaign was based on social democratic values.
She failed to deliver on many of the promises she made during the election
campaign, including repealing the controversial Hadud Ordinances.

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However, she later led the ratification of the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW) in 1996.
Moreover, she also introduced many pro-women policies, which provided
increased employment opportunities to women. However, her women’s
rights reforms were stymied by the need to compromise with conservatives
who wielded significant political power (Rathore, 2015; Weiss, 1990).
During this era, Mian Muhammad Nawaz Sharif also held the office of
Prime Minister, but he did little for the protection of women’s rights, for he
remained true to the creed of his political patron, Zia-ul-Haq. Rather than
working for women’s rights, Nawaz seemed to reinforce many of the anti-
women policies of Zia-ul-Haq. Despite repeated demands from the
women’s rights groups in the country, he refused to repeal any of the hadud
ordinances. Furthermore, Nawaz got the Qisas and Diyat Ordinance passed
by the parliament. This ordinance made certain permanent substantive
changes to the Pakistan Penal Code (PPC) (the code encapsulating the
general criminal law of the country). These changes were interpreted to be
inimical to the rights of women. Nawaz’s move of proposing the 15th
amendment to the constitution also faced opposition from women’s rights
groups because they feared that his proposed fundamentalist Islamic regime
might lead to the undermining of women’s rights (Human Rights Watch,
1999).
On October 8, 1999, General Pervez Musharraf took over the
government in a coup d'état and held in abeyance certain provisions of the
constitution of 1973. He espoused a relatively liberal ideology of
“Enlightened Moderation.” “Enlightened Moderation” considers “political
injustice, denial, and deprivation” (Musharraf, 2004) as the root cause of
extremism and militancy, leading to “an acute sense of deprivation,
hopelessness, and powerlessness” (Musharraf, 2004). Musharraf further
asserted that the Muslims descended into extremism because they had
forgotten the cardinal virtues of Islam, which were none other than “justice,
compassion, tolerance, generosity of spirit, austerity with a spirit of
sacrifice, and a burning desire for raising humanity to a better world”
(Musharraf, 2004). Therefore, he considered it imperative for Muslims to
shun militancy and extremism and adopt the path of socio-economic
development (Musharraf, 2004). His setting of an otherwise liberal
ideology in Islamic terminology made it clear that whatever reforms he

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might bring would be circumscribed by the constraints of traditional Islamic

jurisprudence.
Women’s rights were an essential part of Musharraf’s programme for
bringing enlightened moderation, and he adopted many measures for the
amelioration of the condition of Pakistani women. He amended the
constitution by promulgating the Legal Framework Order (“LFO”) 2002
on August 21, 2002. The LFO substantially enhanced women’s political
representation by reserving 60 seats for women in the 2002 elections
(Hamid, 2009). Besides LFO, his most consequential contribution to the
protection of women’s rights was the Protection of Women (Criminal Laws
Amendment) Act 2006 (“PWA”), which mainly amended the controversial
provisions of Hadud Ordinances that had been found to be deleterious to the
legitimate rights of women. The stated aim of PWA was to amend the
criminal law of the country to “provide relief and protection to women
against misuse and abuse of law to prevent their exploitation” (PWA 2006,
Preamble). PWA was not limited to fixing problems associated with Hadud
Ordinances but extended to the adumbration of a complete legal framework
on the issue of rape (Bajwa, 2006). The most critical enhancement
introduced by PWA was the reinsertion of the definition of rape into PPC,
relaxing the evidentiary requirements for a conviction for the offence of
rape. The had standard of proof (four credible male witnesses) was no
longer necessary, and an alleged offender could be convicted if the general
evidentiary requirements of the Qanoon-e-Shahadat Order, 1984, were met.
Consequently, a rape offender could be convicted on the basis of direct
evidence, circumstantial evidence, real evidence, testimonial evidence,
scientific evidence, or even the solitary statement of the truthful victim that
inspires confidence (Bajwa, 2006). Further, by omitting the phrase “not
validly married” from the definition of rape, PWA recognized the
possibility of marital rape (Lau, 2007). The distinction between Zina
(fornication) and zina bil jabr(rape) was obscured by the Zina ordinance;
PWA clarified this distinction by introducing a separate new offence of
fornication in PPC (PPC 1860, Section 496). To dispel the fear of rape
victims that an unsuccessful rape complaint might be converted into a
charge of fornication against the complainant, PWA prohibited the
conversion of a complaint of rape into fornication or vice versa (PWA,
Section 12A). It is noteworthy that PWA was enacted after the publication
of the Council of Islamic Ideology’s report on Hadud ordinances that
denounced many of the provisions of these ordinances as unIslamic and
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recommended necessary amendments. The report helped reinforce the

claim of the Musharraf regime that PWA was completely in line with the
injunctions of Islam as laid down in the Holy Quran and Sunna.
After much political drama, Musharraf resigned from the presidency,
and a coalition government consisting of PPPP and PML (N) came to power
in 2008, but later, PML (N) left the coalition. The PPPP government lasted
till 2013. Since the restoration of democracy, successive governments have
legislated on many issues relating to women’s rights, which include (1)
violence against women in the domestic and public sphere, (2) workplace
harassment, (3) cyber harassment, (4) women’s property rights, (5) human
smuggling, (6) child marriages, etc. Here, it is to be noted that after the 18th
constitutional amendment, the legislative domain of the provinces was
substantially widened (Rana, 2020). As a result, many of the pro-women
laws legislated during this time fall within the provincial domain. Some of
the important pro-women laws passed during the 2008-2013 era are The
Protection against Harassment of Women at the Workplace Act 2010
(provides legal protection to women from harassment at the workplace),
The Acid Control and Acid Crime Prevention Act 2011 (criminalizes acid
attacks by including acid attacks within the definition of hurt), The
Prevention of Anti-Women Practices Act 2011 (criminalizes discriminatory
customs like giving a female in marriage or otherwise in badla-e sulh, wanni
or swara, depriving women of inheriting property, forced marriages and
marriage of females with the Holy Quran), The Women Distress and
Detention Fund 2011 (provides for legal and financial assistance to women
in jails), the National Commission on the Status of Women Act 2012
(provides the statutory basis to the National Commission on the Status of
Women), and The National Commission for Human Rights Act 2012
(provides the statutory basis to National Commission for Human Rights).
PML (N) ruled from 2013 to 2018. Some major laws adopted during
this time were Punjab Fair Representation of Women Act, 2014 (amended
statutes of 66 public bodies to increase women representation in them to
33%), Punjab Family Courts (Amendment) Act, 2015 (allowed women to
retain up to 50% of their dower in case of Khula), Criminal Law
(Amendment)(Offense of Rape) Act 2016 (made rape a non-commutable
offence and provided additional protections to the victims), Criminal Law
(Amendment) (Offenses in the name or in pretext of honour) Act 2016
(increased the penalty for honour killing and extended the scope of the

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offence of honour killing), the Punjab Protection of Women against

Violence Act 2016 (provides legal protection of women victims of violence
and defined their rights) and , Punjab Women Protection Authority, 2017
(establishes Punjab Women Protection Authority which is responsible for
protecting women from violence in the province of Punjab), Prevention of
Electronic Crimes Act 2016 (defines certain cybercrimes which protected
women from cyber harassment), Hindu Marriage Act 2017 (codifies
marriage law for Hindus and protected the rights of Hindu women in
marriage) , Prevention of Trafficking in Person Act 2018 (criminalizes the
trafficking of persons for sexual purposes), Prevention of Smuggling of
Migrants Act 2018 (criminalizes smuggling of migrant including women
migrants).
In April 2018, PTI, led by Imran Khan, came to power and ruled until
Imran Khan was ousted by PDM (a political coalition) in April 2022. Some
of the pro-women legislation of the Imran government includes The Punjab
Domestic Workers Act 2019 (provides legal protection to domestic workers
that are mostly women), The Enforcement of Women’s Property Rights Act
2020 (provides protection of the rights of ownership and possession of
property by women, ensuring that such rights are not violated by means of
harassment, coercion, force or fraud), Zainab Alert, Response and Recovery
Act, 2020 (provides a comprehensive system for recovery of abducted
children and punishments for related offences), The Protection of Parents
Ordinance, 2021(provided legal protection to aged parents from eviction
from home), and Anti-rape (Investigation and Trial) Act, 2021(provides a
comprehensive mechanism to expedite the redressal of sexual abuse crimes
against women and children).
The history of women’s rights legislation in Pakistan has been an epic
drama of complex dialectical interactions between the social, political, and
religious forces, each vying to exert its influence on the construction of the
legal conception of womanhood. In each era, the legislative trends vis-à-
vis women’s rights have been determined by the compromise between the
orientations of the ruling government and the political expediencies of the
time. However, different ideological tendencies remained prevalent in
different eras of Pakistan’s history (See Annex 1). For example,
conservatives gained eminence during the reign of Zia ul Haq, and
modernists were quite influential under Pervez Musharraf. Changes in the
attitude of certain political actors can also be observed. For instance, Nawaz

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Sharif’s attitude towards women’s rights in 2013 was markedly different

from his attitude in the 1990s. With all that said, a myriad of laws that
meliorate the condition of Pakistani women have accumulated over time.
Sources of Discrepancy
The aspirations of Pakistani women are nourished by the existence of many
international conventions and domestic laws (See Annex 2) that seek to
protect their legitimate rights and encourage them to play a more vibrant
role in society. However, the realization of these aspirations is stymied by
the ineffective implementation of laws. The challenges to the fuller
implementation of pro-women laws in Pakistan can be broadly categorized
into two classes: obstacles presented by contrasting models of legitimacy
and structural and institutional inadequacies. The first class of barriers is
the existence of deeply entrenched cultural norms and practices that define
the existing status of women and resist any change from outside. The
second class of barriers is the structural and institutional inadequacies that
beset the Pakistani administrative machinery and blunt the state’s capacity
to enforce its will (laws) effectively. This paper focuses exclusively on the
first class of barriers and seeks to describe the social phenomena that
underlie these obstacles. The following discussion provides a brief
overview of the social causes of the ineffective implementation of pro-
women laws.
Public-Private Dichotomy
On the one hand, the public-private dichotomy appears as the
fundamental tenet of the liberal state, which serves to limit the powers of
government by bifurcating human affairs into two discrete spheres of
activities: the public and private. The public sphere is open to legitimate
government interference, and the private sphere is exempted from any such
intervention. The private sphere is supposed to include those affairs that are
personal in nature, and the public sphere is supposed to include those affairs
that concern humans as collectivities and are, therefore, fit for public
regulation (Romany, 1994). On the other hand, dichotomy appears as a
social norm that assigns men to the competitive public realm of politics and
economics and women to the emotional private realm of family. The
public-private divide as a social norm is buttressed by deep-rooted cultural
and religious norms. These two distinct yet interrelated conceptions of
public-private dichotomy counteract the attempts at the protection and

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advancement of women’s rights by hindering the state’s legislative actions

on women’s issues by relegating these issues to the private sphere. The
very idea of the state’s affirmative action to orient society to achieve
morally justified goals is deemed to be inconsistent with the liberal idea of
the state and disturbs the public-private divide.
In Pakistan, the dichotomy operates in at least two ways. First, it
ensures the under-participation of women in society by inhibiting their
representation in government and other public arenas. Second, it hinders
the effective implementation of pro-women laws by accusing them of
desecrating the sanctity of the chador (veil) and char-divari (four walls of
the house). For decades, this dichotomy has reinforced gender-
discriminatory laws and impeded the enactment of pro-women laws. It still
hinders the state’s efforts for the protection of women’s rights. The
situation is further exacerbated by the emergence of conflicting
interpretations of the contours of this divide. These contours are determined
by the social conception of womanhood that defines the demands and
expectations of ordinary women in society. Different groups espouse
dissimilar beliefs about affairs that are considered legitimately open to men
or women, augmenting the confusion that contributes to the poor
implementation of pro-women laws.
Conservative Interpretations of Religion
The essential reality of religion is transcendental and sempiternal,
independent of and free from any influence of the empirical world.
However, its particular spatiotemporal manifestations may be vulnerable to
the pressures of socio-political realities (Nasr, 1987). The recognition of
this reality allows for a better apprication of the incidence of interpretive
tensions between different schools of thought within Islam. The existence
of tensions between different schools of thought attests to the need to
distinguish between the centrality and immutability of the divine revelation
and the mutability of the limited interpretations of that revelation
constructed by human agency. These human interpretations develop in
response to and under the influence of the social and intellectual needs of a
particular time and place and can only be understood in light of their context
(Iqbal, 2019).
Islam plays a critical role in women’s rights discourse in Pakistan. Both
conservatives and modernists interpret religion to justify their ends.

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Because of the religious identity of the state, Islam enters into the public
domain, and its enforcement is ensured by state institutions. The
conservative interpretations of Islam present a truncated vision of
womanhood that is inimical to the total development of women’s potential.
These interpretations reinforce discriminatory laws and tend to relegate
women to the four walls of the house by propagating the reduction of
women’s participation in public affairs. In Pakistan, religious conservatives
espouse a particularly parochial conception of womanhood that sees women
merely as “caring mothers” and “obedient wives” and seek to inculcate this
conception in society (Shaheed & Mumtaz, 1990). By presenting their
interpretation as the only possible interpretation, they spurn any progressive
juristic development that tends to enhance the position of women and resist
any law that is inconsistent with their conception of womanhood. In the
history of Pakistan, these conservatives often prevailed upon the legislative
power of the state and got passed certain laws that negatively affected the
interests of women and hindered the fuller development of their potential.
These conservatives were influential during the Zia regime and still hold
significant sway in the public decision-making regarding women’s issues.
Conflating of Religion and Conservative Social Practices
A perplexing phenomenon that belies simple explanation is the
conflating of religion and conservative social practices. One may notice the
occurrence of certain highly discriminatory social practices that do not have
even the remotest connection with religious orthodoxy but are still practiced
in the name of religion and demand reverence. For instance, Karo Kari and
Haque Bakhish have no permissibility and are even prohibited by the
traditional Islamic jurisprudence, yet they are considered Islamic by the
people who practice them. Furthermore, there may also be certain less
distinct cultural norms and practices that have been wrongly conflated with
Islamic values but, in reality, are entirely the construct of a conservative
society (Weiss, 2012). In conservative society, social norms are confused
with religious imperatives to clothe these norms with sanctity and to
perpetuate their unquestioned compliance. Therefore, when a law is
enacted to eradicate a certain discriminatory social practice, it faces severe
resistance because it is believed to profane the alleged integrity of sacred
social norms.

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Intra-Societal Fragmentation of Norms and Interests

In Pakistan, women do not exist as a cohesive group with similar norms
and interests but are rather divided into heterogeneous factions differing
from each other in terms of economic class, religious belief, cultural
background, education standards, etc (Jalal, 1991). The diversity of
experience gives rise to women’s singularly distinct conceptions of their
needs and interests and of the norms that delineate the appropriate ways to
satisfy these needs and protect these interests. Moreover, these norms also
adumbrate the precincts of activities that are considered legitimately open
to women. Lately, Pakistan has been experiencing gendered modernity
(Weiss, 2012), a social phenomenon in which a country witnesses the
progressive rise of more educated women who are no longer willing to
countenance discrimination. Even this process is not uniform across
various sections of society. The interests of women who belong to an
affluent neighbourhood in a metropolitan city differ markedly from those of
women living in rural areas. The women living in urban areas, who are
more likely to have a college education and easy access to employment
opportunities, may focus on issues like equal pay, workplace harassment,
transportation problems, maternity leaves, etc. On the other hand, issues of
prime concern for a rural woman may be maternal mortality, inadequate
health facilities, poor female hygiene, restricted access to education, and
other issues of a similar nature. In addition to dissimilar interests, women
of different factions embrace differing value systems, and these value
systems play a material role in the construction of their self-identities and
must be kept into consideration while framing laws that affect their lives.
In Pakistan, the laws that concern women are most often negotiated by
a small group of upper-class women and, consequently, largely reflect their
interests and concerns. The NGOs that are often seen at the forefront of the
struggle for women’s rights are run by women who come from a narrow
group of educated upper-class urban women who have no direct experience
of the problems that are a lived reality for many women of the lower classes
(Kirmani, 2000). The concerns of lower-class or rural women are not
properly reflected in laws, and these laws often present an inaccurate picture
of their condition. The situation is further muddled by the constant
pressures exerted by religious conservatives who tend to impose their own
models of ideal womanhood on society by influencing women’s rights
legislation. Another significant yet elusive influence on women’s rights

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legislation in Pakistan is the influence of international forces. Certain pro-

women laws are enacted to satisfy obligations incurred by the ratification
of international women’s rights conventions and to enhance general human
rights records that may also fetch benefits in trading relations. It may be
noted that conceptions of womanhood encapsulated in these international
conventions may not be shared by any significant portion of the domestic
population and present a novel element in gender discourse in the country.
Thus, the intra-societal fragmentation of norms and interests is translated
into laws, and almost all laws legislated in Pakistan are often the result of a
compromise between conflicting conceptions of womanhood, presenting
internally inconsistent and disarranged images of women.
Law’s Befuddled Image of Women
Gustav Radbruch argues that each era of the legal system relies upon a
particular conception of the individual and that this conception of the
individual defines the character of that legal system. The legal system’s
conception of the individual can be gauged from a careful study of the
“subjective rights and the legal duties a particular legal order has fashioned”
(Radbruch, 2020). The legal system collapses when the gap between the
law’s image of the human and the empirically existing average human being
widens beyond a certain limit (Radbruch, 2020). Gustav’s insights provide
a valuable method that takes human being as the focus of legal analysis and
seeks to maintain an intimate connection between law and human. It is
contended that not only is introducing the dimension of gender to this
method of legal analysis tenable, but it also allows the possibility of a deeper
analysis of legal reality. It also allows the legal analysis to be more
egalitarian and to be conscious of gender biases that may otherwise creep
in (Moran, 2003). Each legal system has a certain conception of women,
and the rights and duties of women in that legal system are tailored in
accordance with that conception. If the legal conception of women in a
particular legal system does not coincide with the empirically existing
average women, the part of the legal system dealing with women may face
disorder.
As argued in the previous sub-section, the legal conception of women
in Pakistan is the result of a compromise between contrasting conceptions
of womanhood. The legal system has not been able to respond consistently
to the question of whether the law is to cater to the needs of a strong,
ambitious woman who is self-aware of her interests and merely needs the
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elimination of structural impediments in order to reach her full potential, of

a feeble woman who needs active protection and affirmative action to come
out of her sorry situation, or of a traditional woman who is firmly connected
to her social context by means of religion, family and other social bonds
and finds happiness in them. Being a compromise between these
contrasting conceptions, the Pakistani legal system’s conception of women
does not coincide with the empirical reality of average women in Pakistani
society, and this gap between the legal conception of women and the
empirical reality causes the legal provisions dealing with women to become
ineffective.
Alienation from State Institutions
As previously discussed, the first laws relating to women’s rights were
enacted during the British rule. The colonial state sought to regulate gender
relations in order to reform society to achieve their perceived moral goals.
These attempts at reform were often received with hostility, for they were
considered sacrilegious and were deemed illegitimate interventions in the
traditional social structures. The colonial experience cemented the image
of the state as an alien agent and engendered a psychological gap between
state institutions and the people, thereby augmenting the difficulties in
implementing laws. This feeling of alienation from state institutions still
lingers in modern-day Pakistan (Lodhi, 2022) and is more apparent when it
comes to laws that are based on norms that are believed to be alien to the
native society. Religious or social groups are often seen working
independently or rather in conflict with the state and cultivate norms that
may challenge the legitimacy of state legislation.
Women’s rights legislation is often seen as intrusive and is accused by
the conservative groups in the country of being an unholy offspring of
“Western culture,” which is frowned upon by the popular sentiment as
debauchery and turpitude (Weiss, 2012). These laws are seen by the
conservative Pakistani society as attempts to desecrate the pristine sanctity
of traditional family structure. The negative perception of Western culture,
coupled with the psychological distance people feel from the state, is
instrumental in the delegitimization of pro-women laws and hinders their
sufficient implementation.

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Attitude of Public Officials

One of the most crucial factors in the implementation of a law is the
attitude the officials of the state take towards that law. Their attitude is
shaped by the social context that defines their norms and values. It is
possible that different public officials might have different attitudes toward
a law because of the diversity of their backgrounds. Despite some
progressive developments, the general character of Pakistani society still
remains conservative and is not amenable to changes in the social status of
women. As the majority of the officials come from conservative
backgrounds, their attitude towards pro-women laws is essentially negative
and serves to inhibit the proper implementation of these laws.
Critical Remarks
The currents of modernism (and now also post-modernism) pose
tremendous challenges to the integrity of traditional societies, which are
afraid of losing their long-cherished ways of life and are striving to preserve
them. Unsettled by the incursion of modern values, these societies exhibit
an incessant clash of sentiments between the conservative and modernist
elements that constantly vie to define the moral structure of their society.
This conflict is most severe in societies that have experienced colonial rule
at some point in their history. The colonial experience often breeds moral
dilemmas by fracturing and unsettling traditional indigenous communities
and brings society to a point where it finds itself in a constant struggle to
define its cultural or national identity. For instance, Pakistan is struck
between the push and pull of modernity and conservatism (Weiss, 1985).
The conception of womanhood, which is an integral part of the moral
structure of any society, is at the centre of this conflict. This conflict
manifests itself in all facets of society. In Pakistan, the legal discourse
concerning women’s rights is marked by the confusion generated by the
discord between oppugnant notions of womanhood, which unfavourably
affect the pro-women laws at stages of both law-making and
implementation. The whole history of women’s rights legislation in
Pakistan is a story of this conflict. Therefore, it may be contended that the
discrepancy between the aspirations of women and the grim realities of
women’s rights in the country is a function of the confusion resulting from
the breakdown of traditional social structures and the clash between
different factions of society, each striving to partake dominantly in the
construction of the new normative edifice for the society. This confusion is
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the underlying cause of the sources of discrepancy discussed in the previous

section.
To preserve its identity, the society reacts to the forays of foreign values
by building bastions of thought around its norms and values, thus
solidifying and indurating something that was essentially alive and
evolving. This tendency to rigidify norms and values may be called
conservatism 3. For instance, it is true that there has always been some kind
of division between the activities that are considered appropriate for male
or female genders, but his division has always been fluid (Kirmani, 2000).
Heedless of the changing socio-economic realities, the conservative
reaction attempts to rigidify this division, all to the detriment of the women.
The religious domain has also been conservatized, thereby leading to the
flourishing of fundamentalism, which is dismissive of granting any right to
women. The discriminatory social norms and practices that are clothed with
false religiosity may be tackled easily from within the traditional Islamic
jurisprudence but are also protected by this conservative confusion. This
confusion between normative systems has also affected the state and its
legal system, in which we notice the existence of conflicting tendencies in
law-making and judicial adjudication. It is interesting to note that the
superior judiciary in Pakistan has been instrumental in the development of
gender-sensitive jurisprudence (Abbasi & Cheema, 2018), but this task has
never been without its difficulties. Judges have to balance between the two
conflicting tendencies of modern liberally interpreted rights of women and
the dictates of traditional Islamic jurisprudence that may not always be
compatible with modern trends. Almost all judicial decisions involving
women’s rights are the result of this balancing act. However, because of
certain inherent contrarieties of traditional Islamic jurisprudence with
modern trends in women’s rights, the decisions may not always be grounded
in accurate legal reasoning. To react progressively to the needs of women,
courts have exercised independent legal reasoning (ijtihad) instead of
following the opinions of classical jurists. However, the courts’ attitude in
this regard has been inconsistent (Carroll, 1981). Courts have considerably
extended the scope of women’s right to divorce (Abbasi, 2017, 2019). In
Khalida Shamim Akhtar v Ghulam Jaffar (PLD 2016 Lahore 865), the court

3
Conservatism defines the subject of its conservation in reaction to and keeping in view
the purported danger. Hence, its conception of its subject is always inaccurate and
exaggerated for it is constructed by something other than the subject.
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changed the traditional rule (Mulla,1912) concerning the inheritance rights

of issueless Shia widows by progressively interpreting qur’anic verses.
Interestingly, the amicus curiae in the case also cited many contemporary
Shia juristic authorities in favor of the decision. In Abdul Rashid v Shahida
Parveen (YLR 2616 (Pesh)), the court rejected the husband’s petition for
recovery of Dover in the case of Khula by employing a novel argument that
the life spent by the wife with husband could be considered as consideration
for Khula.
Many of the aforementioned factors seem to be involved in the
controversy surrounding the enactment of The Punjab Protection of Women
against Violence Act 2016 (“PPWVA”). The controversy was a perfect
example of the confusion besetting Pakistani society and manifested the
views of the reformist, conservative (both religious and social), and
moderate elements. The act aims “to protect women against violence”
(PPWVA, The Preamble) and to “establish a protection system for effective
service delivery to women victims and to create an enabling environment to
encourage and facilitate women freely to play their desired role in the
society (PPWVA, The Preamble).” To achieve its aim, the act provided for
certain controversial penalties, such as the mandatory wearing of ankle or
wrist bracelet GPS trackers and the expelling of the offender (mostly
husbands) from the house. Despite the morally commendable objective of
the act, the religious conservatives voraciously opposed the act, basing their
argument on a particular interpretation of Verse 4:34 of the Holy Quran.
The same verse is interpreted differently by the reformists (Siddiqi, 2019).
The conservative reaction led to the Council of Islamic Ideology’s
declaration that the act was unislamic and against the ideology of Pakistan
(“Women’s protection act”, 2016). Some emphasized the need for a law
protecting women from domestic violence, though criticized the culturally
insensitive provisions of the act. The public debate initiated by this act
attests to the existence of mutually incompatible conceptions of the “Islamic
Tradition” and how women are viewed in that tradition. The act represents,
as one commentator puts it, “a battle of competing ideologies (Munshey,
2016).” Since the enactment of this act, an ensemble of social and
institutional conditions has impeded its effective working, and there are still
many bottlenecks in its proper implementation (Ahmad, 2023).

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Brief Policy Recommendations

To meaningfully reform the condition of women, Pakistan needs a total
recalibration of its women’s rights policy. In this connection, the following
points should be kept into consideration:
1. The government should augment its understanding of women’s
condition by thoroughly comprehending their social context, which is
the source of their norms and values, and weaves their self-identities.
2. The focus of the government should be on facilitating the genesis and
growth of indigenous perspectives on women’s issues and developing
policy options that are perceptive of both the needs and interests of
women and the traditional norms and values of Pakistani society.
3. State legislation on women’s rights must be guided by the
considerations of human rights. However, it must be borne in mind that
the interpretation and realization of the ideals of human rights in the
context of particular societies should be sensitive to the ethos of local
communities (An-Na’im, 1994).
4. Attempts should be made to bridge the gap between people and state
institutions by indigenizing the state apparatus in accordance with the
norms and needs of society.
5. The government also needs to appreciate the diversity of experience
among women and should endeavour to make law-making more
inclusive.
Conclusion
Socio-legal analysis of women’s rights legislation and judicial adjudication
in Pakistan reveals inconsistent tendencies that are reflective of the
dissensions between conflicting moral systems existing in society.
Sentiments against laws that seek to reform the condition of women are
emboldened by conservative forces, which represents society’s reaction
against the infiltration of norms and values that are adjudged alien and,
hence, disruptive. On the other end of the social spectrum, there are those
who espouse modern notions of women’s rights and aspire to reform society
to achieve their goals. These groups are not ideologically compact; rather,
they display variegated hues of opinions on the issues of women. In
Pakistan, there exists a constant struggle between these groups to influence
the processes of law-making, execution, and adjudication. Both of these
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groups attained dominance in different stages in Pakistan’s history. This

clash between conservative and modernist elements of society stimulates
confusion that prevails over the whole legal (in terms of conflicting
legislation and judicial decisions) and social domains and checks the
satisfactory implementation of women’s rights laws. The solution lies in
approaching the issue of women’s rights as human rights and in initiating
legal and social reforms, keeping in view the culture and traditions of
Pakistan’s indigenous society.
Conflict of Interest
The author of the manuscript has no financial or non-financial conflict
of interest in the subject matter or materials discussed in this manuscript.
Data Availability Statement
Data availability is not applicable as no new data was created.
References
Abbasi, Z. (2017). Judicial ijtihad as a tool for legal reform: Extending
women’s right to divorce under islamic law in pakistan. Islamic Law
and Society, 24(4), 384–411. https://doi.org/10.1163/15685195-
00244P04
Abbasi, Z., & Cheema, S. A. (2018). Family laws in Pakistan. Oxford
University Press.
Abbasi, M. Z. (2019). From faskh to khula: Transformation of muslim
women’s right to divorce in Pakistan (1947–2017). In J. Rehman, A.
Shahid & S. Foster (Eds.), The Asian Yearbook of Human Rights and
Humanitarian Law (pp. 331–356). Brill Nijhoff.
https://doi.org/10.1163/9789004401716_015
Ahmad, M. (1993). The muslim family laws ordinance of Pakistan.
International Journal on World Peace, 10(3), 37–46.
Ahmad, S. (2023). Gender-Based violence in Punjab: An analysis of Punjab
protection of women against violence Act, 2016. Pakistan Journal of
Gender Studies, 23(1), 105–124.
https://doi.org/10.46568/pjgs.v23i01.642
An-Na’im, A. (1994). State responsibility under international human rights
law to change religious and customary laws. In R. J. Cook (Eds.),

School of Law and Policy

69
Volume 3 Issue 1, Spring 2024
Discrepancy between Ideals and Realities…

Human rights of women: National and international perspective (pp.

85–115). University of Pennsylvania Press.
Bajwa, H. A. (2006). Adequacy of protection of women act 2006 to protect
against the mischief of zina ordinance 1979. Pakistan Law Review, 8,
55–85.
Bunch, C. (1990). Women’s rights as human rights: Toward a re-vision of
human rights. Human Rights Quarterly, 12(4), 486–498.
https://doi.org/10.2307/762496
Burton, A. (1994). Burdens of history: British feminists, indian women, and
imperial culture, 1865–1915. The University of North Carolina Press.
Carroll, L. (1981).Muslim family law in South Asia: Important decisions
regarding maintenance for wives and ex-wives. Islamic and
Comparative Law Quarterly, 23(1), 95–113.
Charlesworth, H. (1994). what are ‘women’s international human rights?’
In R. J. Cook (Eds.), human rights of women: National and
international perspectives. University of Pennsylvania Press.
Chitnis, V., & Wright, D. C. (2007). The legacy of colonialism: Law and
women’s rights in India. Washington and Lee Law Review, 64(4),
1315–1348.
Daechsel, M. (1997). Military islamisation in Pakistan and the spectre of
colonial perceptions. Contemporary South Asia, 6(2), 141–160.
Fadl, K. A. E. (2017). Qur’anic ethics and islamic law. Journal of Islamic
Ethics, 1(1–2), 7–28.
Ghamidi, J. A. (2010). Islam: A comprehensive introduction. Al-Mawrid.
Gurvitch, G. (1947). Sociology of law. Trench, Trubner & Co.
Human Rights Watch. (1999). Crime or custom? Violence against women
in Pakistan. https://www.hrw.org/reports/pakistan1999.pdf
Imran, R. (2005). Legal injustices: The zina hudood ordinance of pakistan
and its implications for women. Journal of International Women’s
Studies, 7(2), 78–100.
Iqbal, N. (2021, October 29). Setting minimum age for marriage not against
Islam: Federal Shariat Court. Dawn.

Law and Policy Review

70
Volume 3 Issue 1, Spring 2024
 Murtiza

https://www.dawn.com/news/1654648#:~:text=ISLAMABAD%3A%2
0The%20Federal%20Shariat%20Court,at%20least%20a%20basic%20
education
Iqbal, M. (2019). The Reconstruction of religious thought in Islam. ILQA
Publications.
Jalal, A. (1991). The convenience of subservience: Women and the state of
Pakistan. In D. Kandiyoti (Eds.), Women, islam and the state.
Macmillan Press Ltd.
Kennedy, C. H. (1991). Islamic legal reform and the status of women in
Pakistan. Journal of Islamic Studies, 2(1), 45–55.
https://doi.org/10.1093/jis/2.1.45
Kirmani, N. (2000). Women’s Rights as human rights: The case of Pakistan
[Senior thesis project, University of Tennessee]. Trace Tennessee
Research and Creative Exchange.
https://trace.tennessee.edu/utk_interstp2/47/
Khan, S. (2013). Women and state laws and policies in Pakistan: The early
phase, 1947-77. Proceedings of the Indian History Congress, 74, 726–
733.
Lau, M. (2007). Twenty-five years of hudood ordinances–a review.
Washington and Lee Law Review, 64(4), 1291–1314.
Liddle, J., & Joshi, R. (1985). Gender and imperialism in british
India. South Asia Research, 5(2), 147–164.
https://doi.org/10.1177/02627280850050020
Lodhi, M. (2022, March 7). State of crisis. Dawn.
https://www.dawn.com/news/1678709
Marks, S. P. (2014). Human Rights: A brief introduction (Working Paper).
Harvard School of Public Health. http://nrs.harvard.edu/urn-
3:HUL.InstRepos:23586712
Moran, M. (2003). Rethinking the reasonable person: An egalitarian
reconstruction of the objective standard. Oxford University Press.
Mulla, D. F. (1912). Principles of Muhammadan law. Tripathi & Company.
Musharraf, P. (2004, June 2). Islam and west: Time for enlightened
moderation. YaleGlobal Online. https://archive-
School of Law and Policy
71
Volume 3 Issue 1, Spring 2024
Discrepancy between Ideals and Realities…

yaleglobal.yale.edu/content/islam-and-west-time-enlightened-
moderation
Munshey, M. (2016, May 6). The Punjab women’s protection act: An
ideological battle. London School of Economic and Political Science.
https://www.lse.ac.uk/south-asia-centre/New-Pages-2020
Nasr, S. H. (1987). Traditional islam in the modern world. Kegan Paul
International Ltd.
Nadler, J. (2017). Expressive law, social norms, and social groups. Law &
Social Inquiry, 42(1), 60–75. https://doi.org/10.1111/lsi.12279
Pattaro, E. (2006). A treatise of legal philosophy and general jurisprudence.
Ratio Juris, 19(4), 489–500. https://doi.org/10.1111/j.1467-
9337.2006.00341.x
Rathore, M. A. (2015). Women’s rights in Pakistan: The zina ordinance &
the need for reform (Working Paper No. 38). School of Public Policy
Capstones. https://scholarworks.umass.edu/cppa_capstones/38
Rana, M. A. (2020). Decentralization experience in Pakistan: The 18th
constitutional amendment. Asian Journal of Management Cases, 17(1),
61–84. https://doi.org/10.1177/0972820119892720
Radbruch, G. (2020). Law’s image of the human. Oxford Journal of Legal
Studies, 40(4), 667–681. https://doi.org/10.1093/ojls/gqaa026
Renteln, A. D. (1988). The concept of human rights. Anthropos, 83(4/6),
343–364.
Romany, C. (1994). State responsibility goes private: A feminist critique of
the public/private distinction in international human rights law. In R.
Cook (Eds.), Human rights of women: National and international
perspectives (pp. 85–115). University of Pennsylvania Press.
Sen, A. (2004). Elements of a theory of human rights. Philosophy & Public
Affairs, 32(4), 315–356. https://doi.org/10.1111/j.1088-
4963.2004.00017.x
Shaheed, F., & Mumtaz, K. (1990). Islamisation and Women: The
experience of Pakistan. New Blackfriars, 71(835), 67–80.
https://doi.org/10.1111/j.1741-2005.1990.tb01387.x

Law and Policy Review

72
Volume 3 Issue 1, Spring 2024
 Murtiza

Shah, N. A. (2006). Women, the Koran and international human rights law:
The experience of Pakistan. Martinus Nijhoff Publishers.
Siddiqi, M. K. (2019). The punjab protection of women against violence
act 2016: A legislative review. LUMS Law Journal, 3(1), 100–118
Women’s protection act un-islamic: CII. (2016, March 4). The Nation.
https://www.nation.com.pk/04-Mar-2016/women-s-protection-act-un-
islamic-cii
Vago, S. (2009). Law and society. Pearson Prentice Hall.
Weiss, A. M. (1985). Women’s position in Pakistan: Socio-cultural effects
of islamization. Asian Survey, 25(8), 863–880.
https://doi.org/10.2307/2644115
Weiss, A. M. (1990). Benazir Bhutto and the future of women in pakistan.
Asian Survey, 30(5), 433–445. https://doi.org/10.2307/2644837
Weiss, A. M. (2012). Moving forward with the legal empowerment of
women in Pakistan. United States Institute of Peace.
https://www.usip.org/publications/2012/05/moving-forward-legal-
empowerment-women-pakistan
Wiesner, C. (2022). Doing qualitative and interpretative research:
Reflecting principles and principled challenges, Political Research
Exchange, 4(1), 1–21.
https://doi.org/10.1080/2474736X.2022.2127372

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Annex 1
Chronology of Trends in Women’s Rights Legislation
Chronology of Trends in Women’s Rights Legislation
British Era
Driven by their reformative aspirations, the British legislated mainly on (1) Child
Marriages, (2) Sati, (3) restraint on the remarriage of widows, (4) purdah, etc.,
drawing significant rebuke from local society.

Early Period (1947-1958)

Despite Quaid’s firm belief in women’s rights, the focus on women’s rights
legislation remained marginal. However, few constitutional and legal rights were
provided.

Ayub Era (1958-1969)

In this era, the most significant contribution came in the form of MFLO, 1961,
which touched on many controversial issues concerning Muslim personal law.

Z. A. Bhutto Era (1971-1977)

Bhutto’s vital contribution was the rights provided under the 1973 constitution and
legislation on dowery. However, implementation remained inadequate.

Zia ul Haque Era (1977-1988)

Zia enacted many anti-women laws (notably Hadud Ordinances), deteriorating the
condition of women in several aspects.

Benazir Bhutto in 1990s

Benazir adopted a pro-women attitude in legislation and ratified the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW)
in 1996. Implementation remained inadequate because of the pressure
from coservatives.

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Nawaz Sharif in 1990s

Nawaz Sharif mainly continued the policies of Zia ul Haque, and his legislation was
inimical to women’s rights.

Musharraf Era (1999-2007)

Musharraf’s ideology of enlightened moderation proved beneficial for women’s
rights. Important legal acts include the Legal Framework Order 2002 and the
Protection of Women (Criminal Laws Amendment) Act 2006.

PPPP Era (2008-2013)

This era witnessed legislation on workplace harassment, acid crimes, local anti-
women practices, and a statutory basis for women’s rights institutions.

PMLN Era (2013- 2018)

This era witnessed legislation on women’s representation in public bodies, the right
to khula, enhancement of rape laws, honor killing, gender-based violence, cyber
harassment, and female trafficking.

PTI Era (2018-2022)

This era witnessed legislation on protection of domestic workers, women’s
property rights, Girl abduction, and enhancement of rape laws.

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Discrepancy between Ideals and Realities…

Annex 2
Thematic Classification of Women’s Rights Legislation
Sr. Themes Legislation
Criminal Law (Amendment) Ordinance 1984, Protection
of Women (Criminal Laws Amendment) Act 2006,
Criminal Law (Second Amendment) Act 2016, Criminal
Rape and Sexual
1 Law (Amendment) Offence relating to Rape Act 2016,
Abuse
Criminal Law (Amendment) Act 2018, Criminal Law
(Amendment) Act 2021, Anti-Rape (Trial and
Investigation) Act 2021.
Hindu Women Rights to Property Act 1937, Hindu
Married Women’s Rights to Separate Residence and
Maintenance Act, 1946, Khyber Pakhtunkhwa
Enforcement of Women Ownership Act, 2012, Punjab
Women’s Property
2 Partition of Immovable Property (Amendment) Act 2015,
Rights
The Letter of Administration and Succession Certificate
Act, 2020, The Enforcement of Women’s Property Rights
Act, 2020, The Enforcement of Women Property Rights
(Amendment) Act, 2021.
Protection Against Harassment of Women At Workplace
Act 2010, Punjab Protection against Harassment of
3 Harassment Women at the Workplace Act 2012, Balochistan
Harassment of Women at Workplace Act 2014, Prevention
of Electronic Crimes Act 2016.
Child Marriage Restraint Act 1929 and successive
4 Child Marriage
amendments, Sindh Child Marriage Restraint Act 2013.
The Punjab Maternity Benefits Ordinance 1958, The
Protection of Breastfeeding and Young Child Nutrition
Reproductive Ordinance 2002, The Punjab Reproductive, Maternal,
5
Health Neonatal and Child Health Authority Act 2014, the Sindh
Reproductive Healthcare Rights Act 2019, The Khyber
Pakhtunkhwa Reproductive Health Care Rights Act 2020.
Prevention of Trafficking in Persons Act 2018, Prevention
6 Female Trafficking
of Smuggling of Migrants Act 2018.
Criminal Law (Amendment) Act 2004 (Badal-i-sulh,
Honor Killing), Criminal Law (Second Amendment) Act
Gender-Based 2011 (Offences of Acid throwing), Criminal Law (Third
7 Amendment) Act 2011 (Of offenses against women), The
Violence
Acid Control and Acid Prevention Act 2011, Sindh
Domestic Violence (Prevention and Protection) Act 2013,
Khyber Pakhtunkhwa Elimination of Custom of Ghag Act,
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 Murtiza

Sr. Themes Legislation

2013, The Balochistan Domestic Violence (Prevention and
Protection) Act 2014, Criminal Law (Second Amendment)
Act, 2016 (Criminalizing CSA), Criminal Law
(Amendment) (Offence in the name or on the Pretext of
Honor) Act 2016, The Punjab Protection of Women
Against Violence Act 2016, Zaniab Alert, Response, and
Recovery Act 2020, Khyber Pakhtunkhwa Domestic
Violence Against Women Act, 2021.
Probation of Offenders Ordinance 1960, West Pakistan
Family Court Act 1964, West Pakistan Family Court Rules
8 Rights in Trial
1965, The Investigation for Fair Trial Act 2013, Juvenile
Justice System Act 2018.
Women in Distress and Detention Fund Act 1996, the
9 Legal Aid Women Distress and Detention Fund 2011, The Legal Aid
and Justice Authority Act 2020.
National Commission for Human Rights Act 2012,
National Commission on the Status of Women Act 2012,
Sindh Protection of Human Rights Act 2013, Punjab
10 Statutory Bodies Commission on the Status of Women Act 2014, Sind
Commission on the Status of Women Act 2016, Khyber
Pakhtunkhwa Provincial Commission on the Status of
Women Act 2016.
Bonded Labour System Abolition Act 1992, Khyber
Pakhtunkhwa Bonded Labour System Abolition Act 2015,
11 Labour Rights Sindh Bonded Labour System (Abolition) Act 2015, The
Sindh Women Agricultural Workers Act 2019, The Punjab
Domestic Workers Act 2019.
Hindu Widows Re-Marriage Act 1856, Divorce Act 1869,
Christian Marriage Act 1872, Dissolution of Muslim
Marriage Act 1939, MFLO 1961 and successive
Rights concerning
12 amendments, West Pakistan Family Court Act 1964, West
Marriage
Pakistan Family Court Rules 1965, Dowry and Bridal
Gifts (Restriction) Act 1976, Punjab Family Courts
(Amendment) Act 2015, Sindh Hindu Marriage Act 2016,
Public
13 Punjab Fair Representation of Women Act 2014.
Representation

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