LAHORE: The Lahore High Court (LHC) has dismissed a public interest petition seeking directions to the federal and provincial governments to legislate on marital rape, holding that a constitutional court cannot compel the legislature to enact a particular law or create a new offence.
Justice Abher Gul Khan clarified that the ruling neither endorses violence or abuse within marriage, nor prevents the Parliament or any provincial assembly from talcing up the matter.
Areej Sohail Bhutta, a lawyer, filed the petition, stating that she had encountered women clients who complained of non-consensual sexual conduct within their marriages.
She argued that the law lacked a distinct statutory framework for sexual violence within marriage. She sought directions for legislative measures, including amendments tosections 375 and 376 of the Pakistan Penal Code.
Justice Khan observed that the Constitution divides powers among the legislature, the executive and the judiciary, and that judicial review does not authorise courts to assume legislative functions.
She said Article 199 empowers the highcourttoissue directions for the enforcement of fundamental rights. However, she maintained, there is a distinction between directing an authority to perform an existing constitutional or statutory obligation and compelling the legislature toenacta particular law or create a new offence.
The judge noted that articles 9, 14 and 25 protect the security, dignity and equality of a person, while articles 25(3) and 34 allow special protections for women and promote their participationin nationallife.
She said Article 35, which requires the state to protect marriage and the family, does not provide a licence for violence againstaspouse.
Justice Khan observed that foreign laws can provide comparative guidance, but cannot override Pakistan’s Constitution or replace the judgement of its legislature. She said any proposed legal framework also has to be examined in the light of the Constitution, existing lawsand the injunctions of Islam.
The judge noted that under Article 142(b), the Parliament and provincial assemblies are competent to legislate on criminal law, procedure and evidence.
‘The question whether an additional offence, a separate statutory provision or afurther protective mechanism is required, is essentially a matter of legislative policy,’ the judge observed.
Citing Supreme Court judgements, including Tika Iqbal Muhammad Khan versus Pervez Musharraf (PLJ 2008 SC 500), the judge observed, ‘A court cannot issue a mandamus compelling the legislature to enact a particular law.
The judge noted that the petitioner had neither challenged a specific statutory provision as unconstitutional nor identified an authority’s failure to perform an existing legal duty.
She said the relief sought would require the court to directlegislation accordingto a model proposed by the petitioner, amounting to interference in the legislative process.
The judge stressed that the decision does not diminish a woman’s dignity or bodily integrity because of marriage, or endorse coercion and abuse within marriage. The judge dismissed the petition to the extent of the relief sought.