— Orzechowski v. Commissioner Inland Revenue 69 T.C. 750 (1978)
Ironically, Judge Dawson while admonishing the revenue commissioner's incorrect appraisal of a tax-related matter was tempted to embrace Snoopy’s (comics) catchphrase, originally attributed to poet Alexander Pope.
If intellectuals and jurists of Pakistan were to put their thinking caps on, then law, when contrasted or juxtaposed with the notions of love and romance, would appear to be alien concepts. The two concepts would stand poles apart. But the Dua Zehra case proves that otherwise.
Love, romance and courtship are concepts which are ubiquitous, deeply intrinsic to many cases brought to our criminal and civil/family courts. The Dua Zehra case enlightens us that a focus on reason and facts but with the exclusion of love and compassion results in unjust and unfair laws. Prof. Ward suggests, "Humanity is not saved by ideological manifestos, but by the acts of kindness and of love".
Romanticism is considered a taboo topic in our society, and is subjected to a censured and ridiculed approach in the analysis of law. However, the Dua case shows us that love is an inspirational and spiritual force, and it possesses the ability to challenge the human-crafted laws right to the uppermost echelons of justice.
The matter is still subjudice in the civil courts (after all the superior courts have ruled in Dua’s favour) and under much scrutiny. But the crucial statement of the alleged abductee speaks volumes: “I have married out of free will. No one forced me. I'm happy with my husband here. For God's sake, don't bother me."
The Dua case is a stark reminder that our society has become so pessimistic and toxic that the principles of humanism and universality are missing from both our culture and jurisprudence.
Love is an authentic force and it is uniquely powerful. Therefore, laws impacting love and romantic relations ought to be part of modern analytical jurisprudence. The notion of love has compelling implications on the legal concepts of ‘free will’ and ‘consent’. It even has germane consequences on our traditional practices of honour killings, karo-kari, ghag, watta-satta, vani and swara. Even the concept of fundamental human rights in our constitution and universal legal instruments is intertwined with the understanding of love and compassion for the whole of humanity.
The Dua case is a stark reminder that our society has become so pessimistic and toxic that the principles of humanism and universality are missing from both our culture and jurisprudence.
When viewed through a legal lens, the tenets of humanism, fundamental rights and universal jurisprudence teach us that we must accept people in our lives irrespective of where they live, their colour, caste, creed, social or economic status, age and any other distinguishing aspect of their peculiar circumstances. Unfortunately, Dua's parents have failed to make peace with this fact that she chose to marry a person of her own free will, and whom they are unwilling to embrace in their lives.
More importantly, Dua's parents have failed to empathise with the struggles she is enduring which include the harsh experiences of our justice system and the media. As senior lawyer Sara Malkani in her article notes, “Criminalising self-arranged marriages would expose the girl to greater risks, making her more vulnerable to harm by family or community members”. This is a well-founded argument and Dua’s most recent interview in which she claims that she has reason to believe that her parents will harm her if she is handed over in their custody.
Judicial precedents of our superior courts note that it is the ‘puberty’ which entitles one to competently enter into a valid marriage (Section 3 of the Muslim Family Laws Ordinance, 1961) which gives overriding effect to all other laws. The Federal Shariat Court (FSC) has already evinced that: “…girl though said to be less than 15 years yet nothing was on record showing her having not attained the puberty. Medical evidence, on other hand, showed her puberty. Girl’s marriage with appellant with her own consent, in circumstances, ought to be treated as a valid marriage” (PLD 1983 FSC 9).
The SC has also held that “If a sui juris girl or woman is not willing to go with her guardian, the court cannot compel her.” (2013 SCMR 1484). And again, “Wishes of the sui juris girl should be respected, she must be set at liberty and allowed to move freely” (1987 SCMR 906).
The decision of the FSC has overriding effects in matters of Shariah Law across the country as held by the august Supreme Court: “Decision of Federal Shariat Court is required to be followed by a High Court and by all Courts subordinate to a High Court” (PLD 2004 SC 219). The SC has also held that “If a sui juris girl or woman is not willing to go with her guardian, the court cannot compel her.” (2013 SCMR 1484). And again, “Wishes of the sui juris girl should be respected, she must be set at liberty and allowed to move freely” (1987 SCMR 906).
Regrettably, the parents of Dua are dragging the case further, misguided by some ambulance-chasing lawyers, and motivated by an "us-versus-them" mentality; in turn further subjecting their daughter to mental and physical agony. This is despite her plea that: “I would like to request them to accept me and Zaheer with a big heart. I know they have gone through sorrow, and even I have, but I ask them to accept us."
Whatever the final outcome of the Dua Zehra case may be in the future, it is not incorrect to expect that love and compassion should be the underlying premise of more humane laws and court decisions in our country.