Captioned petitions pertain to Domestic Violence (Prevention and Protection) Act, 2013; petitioners (mothers, sisters, wives) have approached this Court against sons, brothers, husband s respectively , with regard to harassment caused by them on dif ferent grounds and apprehensions of eviction from their residential places.
2. At the outset, it is material to add here that 'domestic violence' , targeting the weakest of society i.e women and infirm old (parents), has been increasing abnormally . The aggrieved, normally , resorts to constitutional jurisdiction when there is no efficacious remedy available at door-step. The heat of the issue was felt while hearing the CP No. S-1957/2018. At this juncture it would be conducive to refer order dated 15.10.2018 passed in. CP No. S- 1957/2018 asunder: "2. At the outset learned counsel for Resp ondent No. .7 contends that petitioner filed a suit at Khairpur wherein she claimed that she has left house with one minor aged about 6 months and thereafter contends that Respondent No. 7 has divorced her and minors are studying in Karachi and Respondent No. 7 has questioned the character of his wife hence he has expelled her from her house.
3. After hearing the petitioner and Respondent No. 7 it is not disputed that Respondent No. 7 is serving as reporter in the Provincial Assembly since 2012/2013 he had hired a flat and was living with petitioner; their marriage was solemnized in 2007 and from this wedlock they have five kids and alleged detenues are school going; petitioner has been expelled from house in January this year .
4. Respondent No. 7 contends that petitioner has failed to perform her duties as mother and even has not attended any parents' meeting at school. In response thereto petitioner contends that for ten years she has given birth to five kids with seizure and was always caring to them; at the time of marriage she was studying in intermediate and she was not in a position to continue her education but was suddenly expelled to step on roads after such long union thereby had no immediate shelter .
5. The typical situation gives rise to following propositions that: "Whether an act of driving out a housewife by husband during continuity of marital ties is justified? and "Whether there is any legislation so as to accommodate such driven out house-wife?
None can deny the fact that Religion of Islam places much insist on `dignity/parda' of the women and despite giving 'woman' equal rights yet does not consider her "identical " with 'man' . The biological makeup of the man and woman , difference of physiology and psychology , the creator (Allah Almighty) himself has defined duties and obligation (s) of both. Such defined difference places the 'man' , in all normal situations, to ensure protection 'of dignity and life of the `women' , which too, without crossing the ordained limits. Further , the typicality of our culture and custom never prepares a 'women' from her very beginning (childhood) for earning livelihood . Despite, changing/developing status of a 'woman' from `daughter to wife' sand wife to mother' , she has been assured of her 'maintenance' by the 'men' regardless of his status as `father; brother; husband or son (capable of earning). This has been the reason that very touch-stone of measuring 'respect' of a 'man' has not been attached to his poverty or wealth but as stated by the Holy Prophet {{URDU TEXT}} that: "Among you the most respectable is the one who respects women and the most disrespect is the one who disrespects the women"
The Holy Prophet also said "It is the generous (in character) who is good to women and it is the wicked who insults them".
One must remember that a woman when agrees to part with her status as daughter so as to step into status of wife she relieves her father/brother from her maintenance/care which 'duty' is presumed to have been taken by the 'man' (husband) once he accepts her in her Nikah/marriage . Such agreement not only requires the husband to maintain her but to give due respect to wife. The respect shall always include dignity of woman and if she is compelled to step out on 'road' certainly certain privileges , which she in all circumstances enjoys, shall stand prejudiced. It is also divinely instructed that: "And live with them honourably " (al-Nisaa 4:19)
It may well be added that driving a woman out of the house would certainly expose her to 'Na-mehrams' who otherwise are not permitted to come in contact with a ` woman' .
If a man does not legally part with his status as `husband' he legally is believed to continue discha rging all his obligations which he owned at time of Nikah/marriage . I would add that term 'maintenance' would never find its true meaning by throwing some money at her or expecting her parents to take care of her but it shall always include all which are necessary to complete the term 'life'. However , this shall never give any undue advantage to woman because such obligation is well balanced : "Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him " (al-T alaaq 65:7)
The accommodation thus is necessary part of the maintenance hence if a man for any reason wants a temporary separation (as a warning even to his wife) yet he is expected not to deprive her (wife) any right which does include accommodation . It may be added that divine advise for a ` man' (husband) even while divorcing his wife is: "Lodge them (divorced women) where you dwell, according to your means " (al-T alaaq 65:6)
Therefore, the proposition-1 cannot have any other answer but a 'BIG NO'.
However , it is an irony that we experien ce such incidents on regular basis which the 'man' dare to do while wrongly interpreting certain 'privileges' , given to 'man' only. The picture, so surfaced in instant case, is one of such abnormal increased incidents.
Keeping above in view, I would add that since the `state' has been given the ultimate status of 'guardian' therefore, if there is any such infringements then it is the state which should be available thereby assuring temporary arrangement couple with a complete mechanism . However , presently I could not lay my hands on any legislation which deals with situation arising out of proposition-1. The Position, being so. requires a little more from the 'State' to do legislation which (legislation) is believed to protect a right or to prevent an infringement thereof.
6. Now, reverting to merits of the case, since admittedly Makhdoom Bilal, Makhdoom Siraj and Tehreem Fatima are minors which (minority/tender age) always tilt in favour of lap of mother . Accordingly , without prejudice to competence of guardians Court to determ ine welfare of minors , the custody of minors namely Makhdoom Bilal, Makhdoom Siraj and Tehreem Fatima is handed over to the petitioner (mother). At this juncture it is surfaced that Makhdoom Mehraj aged about 3 years, after being snatched from the petitioner was handed over to grandmother at the village at Sehwan Sharif. Judicial propriety demands that petitioner shall continue her stay in the same house where she was residing with her husband however Respondent No. 7 shall make alternative arrangement for accommodation and maintenance of minors till further decision of the welfare of the minors and till then Respondent No. 7 is required to meet all expenses and maintenance of minors under the supervision of the petitioner (mother). At this juncture Respondent No. 7 contends that time may be given for alternate. arrangement for accommodation of minors and maintenance, till then custody may be handed over to the petitioner , such proposition is accepted by petitioner , further Respondent No. 7 contends that he will bear all educational expenses of kids and treatment is free on his health card however he would provide Rs. 10,000/-per month. It is further settled that one minor is with cousin of respondent and accordingly he shall be produced on next date.
8. In view of Paragraph No. 5, copy shall be provided to Advocate General Sindh with regard to legislation on this issue if any, as well as issue notice to Attorney General of Pakistan. The Chief Secretary Sindh shall submit report with regard to Legislation for the protection of housewives as well temporary gap-arrangement of immediate shelter/safety of such women . Needless to add that if there is no legislation, the quarter concerned is hoped to process for proper legislation in this regard by adopting proper , procedure, so required for such purpose.
At this juncture it would be conducive to appoint Mr. Mushtaq A. Memon and Mr. Khalid Javed Khan, advocates, as amicus curiae to assist this Court. Office shall provide copy of this order with petition and annexures within three days."
3. The answer to proposition-1 was responded as 'BIG NO' while the proposition-2 was left open while adding as "presently I could not lay my hands on any legislation -which deals with situation arising out of proposition-1" hence amicus curie was appointed. Needless to add that at such occasions the representation of the 'Government' was there. Here, I will prefer to take a pause and would first reproduce order dated 26.02.2019 passed in CP No. S-2662/2018 and others connected petitions: "Comments are filed as well report is also filed for Social Welfare Department, which are taken on record. At the very outset, learned AAG submits that he has spoken with all relevant Officers on this issue; according to them, matter pertains to Women Development Department. However , there are many departments working on this issue and joint mechanism is yet to be framed. Accordingly , Chairman Status of Women Commission, Secretary Social Welfare, Secretary Women Development Department and D.G. Child Protection Authority shall submit compliance report with regard to Women, Children and vulnerable persons in view of Domestic Violence Act, 2013. They shall depute Additional Secretaries/focal persons for assistance and implementation of the order dated 14.02.2019 passed in CP . Nos. D-2662/2018, 258 & 277 of 2019 and orders passed on dif ferent occasions.
To come up on 07.03.2019 at 11:00 a.m. Issue notice to the private respondents .in the aforesaid petitions. In the meanwhile official respondents shall provide complete protection to the petitioners in the aforesaid petitions: In case of failure, they would be exposed to contempt proceedings. Learned MIT shall submit report with regard to circulation of Domestic V iolence Act, 2013 to all the concerned Magistrate of the Districts for its implementation."
4. Resuming, I am forced to 'add here that the Government legally cannot take an exception merely by making 'legislation' unless the same are divulged. The irony which I am attempting to unfold requi res referral to order dated 14.02.2019 passed in CP Nos. S-277 and 258 of 2019 as despite existence of a comprehensive legislation the proposition-2 could not found an answer in time. The order reads as: "SALAHUDDIN PANHW AR.J Petitioner in CP. No. S-277/2019 has stated that her daughter Mst. Iqra was married with Respondent No. 5 on 23.08.2018; three months' back Mst. Iqra was compelled to leave the house of Respondent No. 5 when she was carrying pregnancy of fifth month hence took shelter of her mother (petitioner), Mst. Iqra was beaten by Respondent No. 5 in collusion with other respondents; petitioner and her daughter approached concerned police station and from there they were referred to Abbasi Shaheed Hospital and medical reports were issued. Further , son of petitioner namely Adil was taken by police of PS Surjani. Town on 06.02.2019 and detained in illegal confinement for one day. Private respondents are still harassing the petitioner and her daughter , petitioner approached concerned authorities for protection and security but to no avail hence this petition for direction to the respondents to provide protection and security to the petitioner and her family members in accordance with law .
2. Petitioner in CP No. 2662/2018 stated that she is a widow , her husband has expired leaving behind five children; Respondents No. 4 and 5 are real brothers of petitioner who are harassing the petitioner and her children; she approached concerned authorities for protection and security but, all in vein, hence this petition for direction to the official respondents to provide protection and security to the petitioner in accordance with law .
3. Petitioner in CP No. S-258/2019 is a widow aged about 65 years, she stated that she permitted Respondent No. 5 who is her son, to temporarily live in her house but he alongwith Respondent No. 4 has illegally occupied the house and removed the petitioner from the house and also threatened her for dire consequences; since private respondents are harassing the petitioner , she approached concerned authorities for protection and security but to no avail hence this petition for direction to the official respondents to provide protection and security to the petitioner in accordance with law .
4. Before going into merits of the case, I feel it quite necessary to say that no law allows one to become victim of cruelty merely for reason of his/her being a women, child, old aged and infirm rather directs all relations such as 'husband'; father of a child' and son of an old aged and infirm parent to show love at such time of their life by ensuring all privileges of life to them. This has always been the divine direction in all religion and expectation from every civilized culture/society , however , regret to admit that we had no such specific law till enactment of Domestic Violence (Prevention & Protection) Act. 2013. I shall have to admit that the preamble of the Domestic Violence (Prevention and Protection) Act. 2013 is suf ficient to describe the importance and vitality thereof which reads as:- (underlining is for emphasis)
WHEREAS it is expedient to institutionalize measures which prevent and protect women, children and any vulnerable person from domestic violence and for matters connected therewith or incidental thereto;
5. Prima facie , it was enacted to provide protection to the weakest class of society i.e 'women & children' as, normally , we are carrying a presumption of living a 'male dominant society' where aggrieved even does not dare to tell about `domestic violence' because of threats of being abandoned or dispossessed/removed from household. This appears to be the sole reason that while enacting the legislature deliberately inserted Section 3 which reads as:- "Government shall ensure that,--
(a) this Act and the contents thereof receive wide publicity through electro nic and print media in Urdu and local languages ;
(b) the Government officers, the police and the members of the judicial service are given periodic sensitization and awareness training on the issues addressed by this Act: and
(c) effective protocols are formulated by the concerned Ministries and Departments dealing with health, education, employment, law and social welfare to address the issue of domestic violence and that the same are periodically revised.
The above provision is an exception which, normally , is not included in legislation . This brought the Government (Sindh Government) under a mandatory obligation to divulge the scope and objective of the Act so that aggrieved (women and children) may. no mote. be victims of domestic violence rather could feel protection and those guilty of such like acts may be prevented from repeating such offences. Despite being under such bounden obligation, the Government of Sindh, I am sorry to say, failed thereby never allowed the lawfully enacted act to take birth even rather allowed it to remain in dark at cost of otherwise guaranteed fundamental rights of aggrieved, including women and children.
(underlining is for emphasis)
6. The perusal of the Act shows that term `domestic violence' has no limited definition but has been extended thereby snaking it applicability to cover all sort of situation (s) including ` stalking' .
7. The legislature, I would appreciate, did kept in view the typical thoughts of our society therefore not only insisted upon publicity of the scope and object of the Act but also asked for immed iate constitution of 'protection committee' wherein those have been included so as to provide good counseling as well required assistance which an aggrieved person may require in such a situation. However . none has placed any such notification whereby such committee is to be notified. This again proves negligence on part of the Government though an Act, once passed, brings the Government under mandatory obligation to give weight thereto . I would add that since, otherwise, guaranteed rights of women, children etc. to enjoy feel of protection of law, once earned blessing of the law, cannot be left unattended because of negligent attitude of the government. Such negligence has resulted in making the present petitioner to approach this Court for a relief which, otherwise, was available to him at root-level.
Therefore, I find it in all fairness to order the Sindh. Government to: i) immediately compliance of Section 3 of the Act. in its letter and spirit;
8. However , since the law itself has vested jurisdiction in the Courts therefore, which seems to be not being exercised perhaps because of reason of non-compliance of Section 3 supra , therefore, learned M.I.T of this Court shall ensure that such Act is circulated to all Magistrates who shall .ensure compliance when any person falling within the, category of that Act approaches them; they shall be provided protection. Learned Magistrates would be competent to pass further orders with regard to monetary aid and with regard . to restraining eviction, Besides, IGP Sindh is hereby directed to ensure that complaint of harassment in above categories shall be referred to concerned Magistrate.
9. I would further add that normally the victims of `domestic violence' do not find any immediate reliefs but remain dependent upon others (not morally and legally obliged to maintain ) or in shelter house(s) therefore, legislatures did address such situation. One of the aims of the Act is also to ensure immediate interim relief to an aggrieved from being dispossessed/removed from house hold but also: a) compensation to the aggrieved person for suffering as a consequence of economic abuse to be determined by the Court; b) loss of earning; c) medical expense; d) the loss caused due to the destruction , damage or removal of any property from the control of the aggrieved person; and e) the maintenance for the aggrieved person as well her children, if any, including an order under or in addition to an order of maintenance under family laws. couple with direction to respondent to pay monetary relief .to the person aggrieved within the period specified, as directed in accordance with law .
Therefore, the Magisterial Court (s), the law hopes, shall feel courageous' in dealing with such situation (s) by passing interim order (s) but on being satisfied of prima facie substance.
10. The Bars Association (s) are houses of those, believed to be well versed, hence it is also hoped that the Bar Association (s) shall also provide necess ary knowledge about the scope and object of the Act by arranging the Seminar(s) etc. inviting Judges for participation too.
11. Reverting to merits of the case, since I am conscious that legally the proper remedy for issue of domestic violence lies with Magisterial Court hence it would be appropriate to leave it open to be addressed, however , meanwhile Learned Magistrate having jurisdiction of PS Surjani Town" own shall ensure that no harassment 'is caused to the petitioner and her daughter .
12. The Chief Secretary Sindh shall submit report with regard to Sections 3, 4, 17, 18 and 21 of the Domestic Violence (Prevention and Protection) Act, 2013 and ensure that Commission and Committees are notified within a month; wide publicity shall be given regarding this Act. As well Advocate General Sindh shall submit whether Rules under the Act have been framed or not.
13. Issue notice to respondents for 26.02.2019 at 9.30 a.m; copy this of order be sent to Prosecutor General, Advocate General Sindh, Chief Secretary , I.G.P . Sindh, Vice Chairman, Sindh Bar Council; the focal person of Social Welfare Department, Government of Sindh, shall also be present, with compliance report on next date of hearing."
The above back-ground, I believe, would have made clear the reasoning for referral of earlier orders and brining all the above petitions in one line.
5. Heard learned counsel for petitioner as well A.G. Sindh, Chairperson of Sindh Commission on Status of Women, representatives of Social W elfare Department, W omen Development Department and Child Protection Authority .
6. Learned A.G. Sindh contends that earlier seventeen 17 safe houses were established, which figure has risen upto 29 (safe houses) in the Province at present; in cabinet meeting Rupees five million for each safe house has been allocated and accordingly Rupees 145 million is allocated for all 29 safe houses, same shall be at the disposal of the Deputy Commissioners. He further contends that every district committee will comprise of representatives of every department relating to women under the Deputy Commissioners and temporary shelter will be provided to women /vulnerable persons. The efforts are worth appreciating, however , it is believed that every single penny shall be guarded jealously and it shall be ensured that deserved receive their 'due' without any loss of time and things shall not be on papers and figures but shall, hopefully , satisfy their purposes and objectives. All the ends shall ensure their active participation and fruits, hopefully , shall appear in days.
7. At this juncture representative of Women Development Department contends that pursuant to above referred orders, Commission on domestic violence has been notified on 16.03.2018, accordingly 29 posts of Protection Officers are to be created under the SNE and 4 posts are created at present, further Finance Department has advised for creation of remaining 25 posts in SNE 2019-2020, such SNE has been submitted. It is admitted that for the last years of promulgation of Domestic Violence (Prevention and Protection) Act, 2013, same is not implemented due to various hurdles, notes submitted further show that Committe es as per requirement would be notified within fifteen days as well there are certain amendments which are to be made in such Act as suggest by Sindh Commission on Human Rights and Commission on status of women; such report is submitted by Women Development Department. The plea of improvements/amendments in a law, I insist, can never be a justification in delaying enforcement of an 'Act' else it would amount doubting the competence and wisdom of the 'legislatures' which authority lies with none. The moment a law is passed it carries impression of perfection/completion to meet the situation (objective ) for which it is enacted. The time or change in situations may open the possibilities of 'amendments' but such plea can never be an excuse to give an effect to law. I am forced to regret such plea particularly when the vitality of such law was insisted by Section 3 thereof. The vitality-of the Act was always demanding a prompt action and notification of `Commission' as well protection officers which, however , remained hanging till hammered by this Court. This Court, being ultimate guardian of law and that of fundamental rights , shall always keep hammering as and when notices any thing alike however , government was/is always believed to be more vigilant as it (government ) is, otherwise, directly answerable to its people, therefore, I believe that in future no such negligence shall be shown nor the `government' shall ever come with such an excuse in future. It shall ensure implementation of Domestic Violence (Prevention and Protection) Act, 2013 in its letter and spirit.
8. Since Child Protection Authority , Social Welfare Department, Women --Development Department, Commission on Status of Women are working in same field separately with separate budget and with separate workforce, thus judicial propriety demands SOPs and mechanism for effective delivery of all the departments jointly hence Mr. Tauha Farooqui, Secretary , Social Welfare Department, Government of Sindh, Ms. Anjum Iqbal, Additional Secretary Women Development Department and Chairman, Commission on Status of Women, Director General Child Protection Authority shall submit such mechanism after due consultation and deliberation thereby assuring complete implementation of Domestic Violence (Prevention and Protection) Act, 2013 and Sindh Child Protection Authority Act, 2011 and other relevant laws in field. Besides, complete details of orphans houses/places owned by the government or any Scheme shall be submitted before next date of hearing.
9. It would be pertinent to mention here that since the scope of the Act is much wider and prima facie is aimed to ensure immediate rescue and assistance to an aggrieved (as defined in the Act) therefore, in every single district, committees are required to be formulated hence a mechanism of ambulance/rescu e service shall be provided with toll-free number accessible to everyone. The manner in which the Act itself has insisted about composition of the 'Protection Committee' (Section 17(2) ) is self-suf ficient to indica te that required objective would not be achieved unless special task force is created with special training in that field to deal with women, children and destitute persons, therefore, it is hoped that this aspect shall be considered by the quarter concerned. Such force shall be provided rescue vehicles having sufficient space with capability to rescue the victim of domestic violence, in every district. It is pertinent to mention that a psychologist including Protection Officers and other posts in each districts shall be filled within three months, same is demand of the Act. Since such Act provides shelter homes in every district, fate of safe houses shall also be decided by the above referred departments whether same shall be governed under that referred Act? or government may choose to establish parallel shelter homes.
10. Since such Act is in field since 2013 but Province of Sindh has failed to comply with Section 3 of Domestic Violence (Prevention and Protection) Act, 2013, which states that: "3. Government shall ensure that:-
(a) this Act and the contents thereof receive wide publicity through electronic and print media in. Urdu and local languages;
(b) the Government officers, the police and the members of the judicial service are, given periodic sensitization and awareness training on the issues addressed by this Act; and
(c) effective protocols are formulated by the concerned Ministries and Department s dealing with health, education, employment; law and social welfare to address the issue of domestic violence and that the same are periodically revised."
Hence, campaign shall be launched by all departments by taking steps on emergency basis in every district by using social as well electronic and print Media by including it in public interest Seminars . As well District Judges shall be taken Onboard. The campaign, must not only make the people aware about the objective of the Act but should also 'make it known to people that the doors of the Courts of Magistra te shall always be open to an aggrieved or an informant for immediate rescue/help, as provided by Section 7 of the Act and even no formality to approach concerned police station is needed. Worth to' add here that resort to any other available legal remedy shall never be taken as a bar to what the Act itself provides to an aggrieved (Section 2.7 of the Act). The Magistrates shall ensure what the objective of. the Act demands of them i.e not only wiping the tears of the cheeks of aggrieved but restoring what is snatched or attem pted to be snatched of them while makin g them a victim of 'domestic violence' . Learned Prosecutor General Sindh shall ensure that Prosecutors are assigned to assist the applicants and Courts accordingly .
11. Besides, learned MIT was directed to circulate Domestic Violence (Prevention and Protection) Act, 2013 to all Magistrates, accordingly report shall be submitted quarterly with regard to cases of domestic violence and action taken thereon.
12. Office shall send one set of every petition after receiving from the parties, to concerned Magistrate for hearing the parties and disposal thereof in accordance with law, except CP No. S-331/2019 wherein one lady who is from'
Jordan and claims that she has been deprived of property by her brother . Chairman, Commission on Status of Women present contends that they will provide every assistance to that lady however that lady may pursue her remedy as provided under the law .
13. CP No. S-331/2019 is disposed of. CP No. S-1957/2018 is disposed of in terms of order dated 07.02.2019 regarding maintenance to be adjudicated by family Court.
14. Office shall not entertain any petition regarding domestic violence, as such Act provides alternative and efficacious remedy by approaching concerned Magistrate. Learned MIT shall ensure compliance of Section 11 of the Act in its letter and spirit. Concerned Magistrates shall receive harassment applications and entertain the same as well shall update the same in workflow management web portal.
15. At this juncture, while feeling very pertinent role of police regarding harassment issue, all D.I.Gs of the Province shall start awareness campaign and refer the case of harassment in above categories to the learned Magistrates for disposal in accordance with law , till finalization of Committees and Rescue force in each district.
All captioned petitions are disposed of. A copy of this order be placed in CP No. S-2658/2018 wherein all concerned departments shall submit reports on monthly basis.