Forced Marriage: A Violation of Human Rights

By  Munazza Abbasi LL.B  (Hons )

Part – 2

The national laws of any country prohibit the practice of forced marriages. Under Article 12 of the Human Rights Act 1998: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” Conducting such a marriage procedure therefore is an overt violation of this right. Article 5 further offers victims the right to protection from deprivation of liberty and security. Where the acts comprised in coercing someone into marriage consist of some element of physical pressure being applied to the victim, it may lead to an infringement of the negative right to be protected from torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. (Article 3, HRA 1998). Some cases of forced marriages involve the infringement of the right to prohibition of slavery and forced labour found in Article 4 of the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). One such case highlights such an infringement, where the wives of three sons were treated as “slaves and dogs’. They were kept as prisoners inside the mother in law’s home, and were forced to carry out ‘gruelling work’ all day long. The three wives were ignored by their husbands and exploited by their mother in law. This ordeal began in 2001 when the first wife arrived in England from Pakistan. She was ordered to sew day and night since she arrived in Britain. This was in return for money, which she did not receive a penny of, as her mother in law would keep it. All three were denied access to the outside world, with their calls being monitored by the mother in law, and were beaten if refused to work.

This inhumane behavior and imprisonment of the wives continued for over a decade before their ordeal was brought to light in 2006, when one of the children of the wives informed his teacher that his mother was beaten by his grandmother. The second wife escaped onto the street where the police was informed by neighbors and the third was taken back to Pakistan and abandoned there. Although the mother in law was imprisoned in 2009 for 7 years, the sensitivity around the definition of forced marriages can be examined. This case may not be considered as a forced marriage case, as initially the wives agreed to the marriage to take place as they genuinely believed they would be married happily with their husbands. This is regardless of the fact that neither of the husbands ever had intentions of living as their husbands. In extreme circumstances, a victim’s right to life, contained in Article 1 is violated, where the perpetrator murders the victim for refusing to marry the spouse of their choice.

Violence against Women – Gender Discrimination: Forced marriage is commonly a gender related issue, with women and girls being the core subjects of abuse of the customary practice. It is mainly the rural women that are at risk of gender-based violence “because of traditional attitudes regarding the prevalence over any such belief based on culture or tradition that is seen to impede this right. Forced marriage falls within the definition of domestic violence provided by the Crown Prosecution Service. In most cases it constitutes child abuse, and in very rare cases may lead to non-consensual forced sexual abuse or emotional manipulation. The United Nations views the practice as a form of trafficking, sexual slavery and exploitation. It also recognises it as child abuse where a child is forced into marriage (United Nations Convention on the Rights of the Child 1989).

Forced marriage may further amount to crimes against humanity under customary international law. The inhumane act of forcing someone into marriage can be categorised under “odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings” (The Rome Statute of the International Criminal Court Explanatory Memorandum).  Although some people may perceive this practice as a private, personal, domestic, family, religious or cultural issue, it is nevertheless viewed in the eyes of the law as an unacceptable practice which is unjustifiable to any personal, religious or cultural belief, and is an apparent abuse of human rights. Perpetrators of this practice are inexcusable and are answerable to the law. It is a “gross transgression of individual integrity” (Sir  Judge Peter Singer), and victims of such an atrocious practice are not licensed to abuse.

Culture vs. Religion

The issues arising from a forced marriage fall within the sphere of a cultural, more than a religious context. Religion is often used as an excuse to make decisions based on solely local interests that fail to take account of the effect of the decision on the wider community. Forced marriage is a victim of this, and is a practice that is often considered to be trivial by parochial members of a certain community, in comparison to the views of the grand scheme of the more liberal and open minded communities, who scrutinise the practice as immoral and unacceptable and is not a part of anyone’s culture. A 19th Century British Anthropologist depicted culture as “that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” Religion is a factor that can be inserted into the other capabilities element comprised in this socio-cultural anthropology. On the other hand, it may also be viewed that culture stems from religious beliefs. It is this diffusion of religion with social practices and cultural forms that allows forced marriages to elope as a religiously acceptable practice. However, this dire practice “cannot be justified on any religious or cultural basis” (FCO Human Rights Annual Report, 2004). Although the Western world regards forced marriages as a religious practice, no major world faith condones forced marriage and the element of consent being freely given by the spouse(s) to the marriage is a prerequisite of all marriages in major world religions, whether it is Christian, Muslim, Hindu or Sikh marriages. Mike O’Brien, Minister for Racial Equality, expressed that the government must respond sensitively to the issues of cultural diversity, but multicultural sensitivity is no excuse for moral blindness (House of Commons debate on Human Rights). In some countries, this traditional practice is perpetuated by culture and tradition that, often unknowingly, proves to be harmful to their own community. This is coupled with the occurrence of family violence, which is the most insidious forms of violence against women. This violence in the context of forced marriages consists of battering, sexual assault, mental and other forms of violence. Many individuals associate forced marriage as being a practice that is acceptable in Islam. However, Islamic Scholars have condemned the practice, declaring that it not permissible under Islamic law and fathers who coerce daughters into marriage should be jailed and not released ‘until they change their minds. This stems from the Islamic view related by the Prophet Muhammed (peace be on him): A previously married woman shall not be married without being consulted and a virgin shall not be married without her consent (Bukhari). Due to the subordinate role of women that persist in many rural communities, these women often suffer disadvantage from gender discrimination on many levels.

According to the Convention to Eliminate all forms of Discrimination Against Women 1979 (CEDAW), the State is under an obligation to ensure equality of men and women by granting them ‘the same right to choose a spouse and enter into marriage only with their free and full consent.’ Such a right is supported by the General Recommendation No.12 UN Committee on CEDAW, where a women’s right to choose a spouse and enter freely into marriage is guaranteed “central to her life and dignity and equality as a human being.” The proliferation of this innovative and ambitious treaty (CEDAW) was mainly to eliminate gender discrimination. An element of the imposition of this sanction is to uphold a woman’s consent to wed. Contravention of such a right, consequently, leads to a subordination of women’s civil liberties.

Akin to the above, the right to be able to voluntarily choose a spouse is recognised in various other international human rights conventions, including Article 23 of the International Covenant on Civil and Political Rights 1966 and Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 which mirrors the right to enter freely into a marriage discussed above. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages requires that all States to the Convention…

…should take all appropriate measures with a view to abolishing such customs, ancient laws and practices by ensuring, inter alia, complete freedom in the choice of a spouse. Such consent by the parties is to be expressed in person “after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.” The Convention, therefore, prohibits the use of coercion to impair the freedom of others to adopt a marriage procedure of their choice.

(…to be continued).