DEFINE LAWS, PLEASE!

Muhammad Mahtab Bashir
Islamabad
mahtabbashir@gmail.com

The issue here is not of feminism or lesbianism but the issue is can our close society has such laws to cop with unprecedented situation that is turning into a new direction with every passing moment.

Justice Khawaja Muhammad Sharif of the Lahore High Court (LHC) sentenced Shumail Raj and Shahzina Tariq to three years of rigorous imprisonment in jails at Lahore and Faisalabad respectively and Rs 10,000 fine for each. He said failure of fine payment would add a month to imprisonment. The couple was jailed because they had lied about Shumail’s sex, who pretended like a male. The lovers, also cousins were sentenced to put behind the bars because of same-sex marriage and perjury which is against the injunctions of Islam and unlawful but no case could be instituted under Section 377 PPC, the commission of unnatural offense. On the other hand, couple proclaimed they love each other and only death could make them apart. It was also disclosed that Shehzina’s father wanted to sell her off into marriage to a man much older than her and that Shumail (Nazia) married her (Shehzina) in order to save her from this fate.

It was not the very first case in the history of Pakistan but in sub-continent. Shumail Raj ‘the husband’, 31 and Shehzina Tariq, the wife, 24, were truly, madly deeply in love with each other, when they fled from Faisalabad to Lahore after resistance shown from girl’s father. The couple just after made their entrance in the city of Lahore captured by Lahore Police and case was sent to Lahore high court for further proceeding.

During proceeding of the case Shumail (she turned he), who was wearing jeans and shirt admitted that he was a girl. His wife Shehzina also confessed that she knew that her spouse was a girl, when she was asked by the court. Then why Shumail told a lie to the court earlier? Shumail replied that she had made wrong statement as some of her intimate friends were present under the same roof. The judge also made query why she had removed her breasts and uterus? She did not reply to this.

During judicial proceeding the judge asked Dr Asif, who had been summoned by the court as Shumail had stated on last hearing that he (Asif) had removed her breasts, to explain as to under what law he operated upon Shumail. But surprisingly, Dr Asif categorically denied the charge, saying Shumail did come to his clinic complaining pain in the chest. “When I asked her certain questions she revealed that she might be feeling pain as she got removed her breasts about 10 years ago from a doctor whose name she did not reveal and left his clinic in anger. And now she came up with an allegation against him.” Shumail however, insisted that Dr Asif removed her breasts. As the court found it difficult to reach a conclusion, it ordered SHO Jhang bazaar Khalid Maqbool to register a case against all those who took part in removing the female characteristic of Shumail. Doctor Abdul Hafeez Kardar, who allegedly operated upon Shumail Raj to remove uterus told court that Raj could still conceive a baby. Doctor further told that he helped Raj remove her uterus from a gynecologist in Faisalabad about her menstrual cycle excessive bleeding, but that doesn’t mean she is he (male) now. The court remarked: No professional ethics, code of conduct or laws of land allow a doctor to remove characteristics of a person.

Additional advocate general Khawar Mehmood Khatana vehemently opposed the argument of giving pardon to this couple by saying that punishment under all offences should be handed down with the intention to reform the society. Crimes could not be controlled if the offenders are not punished. He maintained that it was an unprecedented case and boldness of both of them required deterrent punishment to set an example for the rest of society. The brief fact of the case was that Shumail Raj (Nazia) and Shehzina Tariq were cousins. They contracted ‘marriage’ nine months ago on September 09, 2006. However, father of Shehzina, Tariq Hussain registered a case of kidnapping against unknown persons.

As the matter turned controversial, Shumail was subjected to medical examination that revealed that she was born as a girl and continued to be a woman. Later, they deliberately avoided appearance before the court as they were making an attempt to flee the country. The court issued their arrest warrants. Meanwhile, on the application of Shehzina’s father their names were put on exit control list. Finally they were arrested and the court sent them to separate jails, Shumail to Kot Lakhpath jail at Lahore and Shehzina to female ward of Faisalabad district jail, where they would now be imprisoned.

Justice Khawaja Muhammad Sharif said he had awarded a “lenient” sentence, because the couple had apologized. The maximum sentence for telling a lie before the court is seven years under section 193 of Pakistan Penal Code.

Talking to media men outside the Lahore High Court building after the court had sentenced them, Shumail Raj , the ‘husband’ said that they would also appeal to President Musharraf to help them out of such ‘inhuman’ injunctions. Raj hoped that President Musharraf would provide them some relief. Replying to a question that how would they spent a long period of three years in jail, Shumail said that they would withstand all odds. “We love each other and only death can make us apart,” she maintained. However, she said that the jail authorities were not treating them well even they were not allowed to meet their families. “Other inmates in jail used obnoxious language and continuously gazed and stared at me,” Shumail protested.

In my views, the court ignored the fact that it is not only biology, but psychology that defines a human being. As per medical ethics, sex relocation therapy is not a crime and is practiced the world over. The court ruled that ‘same-sex marriage’ was un-Islamic. It would be in order to bring to light some important facts relevant to this case.It is well-known scientific fact that a certain percentage of children is born with indistinct sex. On reaching puberty, they start developing characteristics of the opposite sex due to hormonal deviations. Like in the present case, Shumail grew a beard at the age of 15, and decided to go for a mastectomy and later a hysterectomy. Shumail however had not yet undergone reconstruction surgery. Research shows that nearly 40 percent of untreated transsexuals are either institutionalized or die prematurely. However, if properly treated, they can become fully functional members of society.

Another weird decision made by the judge was, to issue show-cause notice to Dr Abdul Hafeez Kardar, who had allegedly performed surgery on Shumail Raj, that under what law he was authorized to perform an operation of the nature. I argue if Raj was not feeling comfortable under female characteristics, is it any harm to make his life comfortable? It also needs a serious thinking especially for the days to come.

Pakistan is a ridiculously closed society, but sometimes one is in shock at the misinformation and prejudice even among more broad-minded circles. This case is the first of its kind in Pakistan, but our neighbouring Muslim country, Iran, is no stranger to transgenderism or to sex-change surgeries. We have a healthy precedent in the example of Iran. Ayatollah Khomeini first issued a fatwa declaring it not only Islamic but advisable to undergo sex reassignment therapy, so that a transsexual does not live the life of an unacceptable person. Iran has not only passed legislation based on social and scientific evidence to make sex change legal, such individuals are financially assisted by the state to have surgery for the purpose. Iran has gone so far as to achieve scholarship in social and legal issues arising from such sex-change. I suggest that the people and the government of Pakistan must learn from the experiences in Iran and do not repeat the same inhuman and unscientific patterns of injustice and prejudice that are pervasive in a world that insists on staying to ridiculous caricatures of what it means to be a ‘real man’ or a ‘real woman’.

The courts and the government should recognize this phenomenon and take affirmative action to accommodate such individuals in society rather than shunning them in ignorance. It is the first ever time this issue has attained fame at the national level. We as a society need to rethink our attitudes. Not only should legislation be passed in this regard, the government should make arrangements to rehabilitate transsexual communities. The case of Shehzina Tariq and Shumail Raj should be reconsidered in the light of above facts as it invites civil society in particular to play its pivotal role in such regard.

Last but certainly not the least, the court should also have given due consideration to the circumstances in which the couple contracted ‘marriage’ nine months ago on September 09, 2006. In their statement, they said that Shehzina’s father wanted to sell her off into marriage to a man much older than her and that Shumail married her in order to save her from this destiny. It was in order that the court should have ordered an investigation into this allegation and, if found true, awarded punishment to the father of Shehzina, and if not, couple will have to carry on their life within a cell for three years or they may be relieved earlier.

Published in The POST, weekly Independent & Weekly BLITZ international

MUHAMMAD MAHTAB BASHIR
House # 2026, Street # 32,
I-10/2, ISLAMABAD.
Cell: 0300 52 56 875
mahtabbashir@gmail.com