Islam, Culture, and Marriage Consent: Hanafi Jurisprudence and the Pashtun Context (New Directions in Islam) [1st ed. 2022] 9783030972509, 9783030972516, 303097250X

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NEW DIRECTIONS IN ISLAM

Islam, Culture, and Marriage Consent Hanafi Jurisprudence and the Pashtun Context

Hafsa Pirzada

New Directions in Islam

Series Editors Joshua M. Roose, Faculty of Arts and Education, Deakin University, Melbourne, VIC, Australia Bryan S. Turner, Australian Catholic University and The Graduate Centre, City University of New York, New York, NY, USA

The New Directions in Islam series will promote creative ways of conceptualizing the practice of Islam in new, challenging contexts and present innovative and provocative interdisciplinary studies examining intellectual, political, legal, economic, and demographic trajectories within Islam. Although recognised as the world’s fastest growing religion, many Muslims now live in secular societies where Islam is a minority religion and where there is considerable social conflict between Muslim communities and the wider society. Therefore it is vital to engage with the multitude of ways by which Muslims are adapting and evolving as social and cultural minorities. How are they developing their faith in line with local and national customs? How are converts and subsequent generations adapting in these challenging contexts? This series moves beyond dichotomies about radicalism, citizenship, and loyalty evident in the proliferation of descriptive and repetitive studies of Islamophobia and Orientalism, which have become both negative and predictable. Rather, contrary to the perception of Muslims as victims of secular modernity, we are interested in ‘success stories’ of Muslims adapting in and contributing to society at local, national and even transnational levels, such as the case of Muslim middle classes in Canada, the United States, South Africa, and Argentina. This series will go beyond the geographic boundaries of the Middle East to examine Islam from a global perspective in vastly different contexts from Brazil to Vietnam and Austria to Papua New Guinea.

More information about this series at https://link.springer.com/bookseries/14746

Hafsa Pirzada

Islam, Culture, and Marriage Consent Hanafi Jurisprudence and the Pashtun Context

Hafsa Pirzada Griffith University Brisbane, QLD, Australia

New Directions in Islam ISBN 978-3-030-97250-9 ISBN 978-3-030-97251-6 https://doi.org/10.1007/978-3-030-97251-6

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Asmar’s Photography/GettyImages This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For my mother.

Preface

This book explores consent-seeking practices among Pashtuns in Khyber Pakhtunkhwa, one of the four administrative provinces of the Islamic State of Pakistan. This topic was a very personal one for me, and it makes sense to explain the personal motivations behind the next few hundred pages for you, the reader. They say research is ‘me-search’, and as you will find out, I am a Pashtun Australian Muslim woman, born in Australia, to parents who migrated here from two small villages in Khyber Pakhtunkhwa, Pakistan. Marriage was therefore a topic of discussion throughout the second half of my twenty-seven years, the cultural and religious importance of it clear to me from a young age. Yet, almost every single one of those discussions, impassioned and varied as they were, occurred with my mother. My father did not often speak about marriage, but I never considered this silence unusual when I was young. If anything, even though I am now happily married, the thought of speaking with my father about a potential husband still makes me a little bit uncomfortable … marriage is just not something a good Pashtun girl brings up with her parents, and especially her father.

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I have travelled to Khyber Pakhtunkhwa numerous times over my life and watched my teenage cousins get engaged and married to men they had never met. I participated in some of the marriage celebrations too. When I was sixteen years old, and back in Khyber Pakhtunkhwa for the holidays, I watched another girl marry a man she did not know—but unlike the others, that occasion was forever marred by the tears of the young bride, who held onto to her father, telling him she did not want to go. The girl was fifteen, still in school, and one of thousands of girls whose marriages are arranged without their consent in Pashtun culture. From that day, the relationship between that girl and her father became a fixation in my mind, until the day I stumbled across the quote that became the catalyst for this work. If there is one thing which a comparative study of religions places in the clearest light, it is the inevitable decay to which every religion is exposed. It may seem almost like a truism that no religion can continue to be what it was during the lifetime of its founder and its first apostles. Yet it is but seldom borne in mind that without constant reformation, i.e., without a constant return to its fountain-head, every religion, even the most perfect, nay the most perfect on account of its very perfection, more even than others, suffers from its contact with the world, as the purest air suffers from the mere fact of its being breathed. F Max Müller, Chips from a German Woodshop: Essays on the Science of Religion (1867) vol 1.

Was my culture part of the ‘inevitable decay’ to which Müller said every religion was exposed? If it was, the prospect was heartbreaking. The awkwardness surrounding the topic with my own father, and the tears of that other girl as she held onto hers, led to hours of reading, trying to find the way that marriage in Islam ‘should’ look. Surely, given the importance of marriage in my culture, and my religion, the process should not look the way it did on that day. I wanted to know what the father-daughter relationship looked like in my religion, and whether we should be talking about marriage at all? Did my religion agree with the practices that I saw so many times in my culture? Was the process of deciding on marriage supposed to be non-existent (or awkward at best) between Muslim fathers and daughters, like it was for Pashtun fathers

Preface

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and daughters? Also, what did Pashtun men think about these issues, as sons and as fathers themselves? Most importantly of all—if my culture was part of the decay to which my religion was exposed—could this decay be reversed? Those experiences, and the hours of reading, led to this book. I hope it does some justice to the mothers and fathers, who were also sons and daughters of Pashtun parents, who believed I was asking the right questions of our shared culture—and who were so happy to help me try to find the answers. Brisbane, Australia

Hafsa Pirzada

Acknowledgements

This book began as my doctoral research at both Griffith University, and later, the University of South Australia (as part of the Centre for Islamic Thought and Education). I would like to begin by extending my deepest thanks to my participants—I owe an immense debt to all of the men and women who gave up their time and experiences to my research. This work could not exist without the generosity and richness of your voices and experiences. I cannot thank you enough. To my doctoral supervisors, Professor Mohamad Abdalla (University of South Australia) and Professor Wendy Lacey (University of Canberra), this book would not have been possible, nor anywhere near comprehensible, without your guidance, encouragement, and track changes during the years of my doctorate. Professor Abdalla—you were the greatest mentor, from Brisbane to Adelaide, in this epic journey into legal jurisprudence; for this I will be forever thankful. Professor Lacey—your vision and support in the final year of my study was more appreciated than I can say. Your kindness and incredible legal acumen make me hope

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that someday, I can become even half the academic that you are. I stand on the shoulders of giants. To my colleagues and friends who have given me endless support, and copious amounts of caffeine, over the years—although it is difficult to mention each and every one of you by name, thank you for all of your encouragement and ears over the years. Thank you to my colleagues and friends at the Centre of Islamic Thought and Education (CITE) especially—you made the oft daunting research process so much more enjoyable, and taught me so much along the way. To Poppy and Sharla at Palgrave Macmillan—thank you for making the book process so seamless, especially after I became a new mother halfway through. Your support through this extended process is so appreciated. To Associate Professor Halim Rane, and Dr. Josh Roose—thank you both for making this book a reality. I must also acknowledge the Commonwealth Government funding that I received under the Australian Government Research Training Program (RTP) Scholarship during my doctorate—the research encapsulated in this book would not have been possible without it, nor without the Ph.D. scholarship provided to me in Adelaide. Thank you. Finally, I need to thank my family. Mummy and Abu—thank you for tirelessly supporting me and helping me throughout this journey for the last six years. Only God knows how much you have done and sacrificed to help me be where I am today. Mummy—the hours upon hours you spent looking after Amir, in between your own work, I am not sure I can ever repay. But I certainly will try. None of this would have been possible without the selfless love and support of my parents. Thank you for everything—even though thanks will never be enough. My little’uns, Madeeha, Omair, Ozair, and Dounya—thank you for being the best siblings anyone could ever ask for—for buying me Harry Potter mugs, watching Amir on those long weekends spent writing, and keeping me grounded into the wee hours of morning. I would especially like to thank our ‘mini-Sheikh’ Ozair for helping me trawl the internet for reliable sources from Hanaf¯ı jurists in his spare time ... I actually ended up using one in this book.

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To my family in Canada—thank you for all of your support, even from so far away. I will never forget that you always championed my research and my passions from day one. It means the world to me. And lastly, to my husband, Hasan, and my son, Amir. Hasan—we started this journey together when you were my ‘Nik¯ah-fied’ fiancé, who stayed up late on weeknights and woke up too early on weekends an entire city away, just to help me debrief while I was conducting this very research as a harried Ph.D. student. Four years later, you did it all again as I wrote this book. Thank you, thank you, thank you. For being a pillar of unwavering strength and encouragement, helping me to go on even when giving up felt like the easiest thing. For inspiring me and giving me the best advice on how to restructure my chapters without drowning. For insisting that I eat all the ice cream and binge all the shows after long days of writing. For only ever having known me as that harried Ph.D. student, turned harried academic, and still giving me all of your bottomless patience and laughter and love. I am so thankful to have found you. Amir—I wait for the day that you can read this, understand every word, and reflect on every meaning of this work. When that day comes, I hope that you are as proud of me as I already am of you. I cannot wait to change the world with you—standing side by side. Thank you for becoming my Reason. I love you and thank you all always.

Interviewee Codes

Interviewees from both Australia and Khyber Pakhtunkhwa (Pakistan) participated in this study. Where interviewees are not clearly described as ‘Australian Pashtun man/woman’ or ‘man/woman in Khyber Pakhtunkhwa’, interviewees are prefixed as follows: Pashtun woman in Australia Pashtun woman in Khyber Pakhtunkhwa Pashtun man in Australia: Pashtun man in Khyber Pakhtunkhwa

‘AUS-F’ for female interviewee living in Australia (e.g., AUS-F Jabeen) ‘KPK-F’ for female interviewee living in Khyber Pakhtunkhwa (e.g., KPK-F Zala) ‘AUS-M’ for male interviewee living in Australia (e.g., AUS-M Awalmir) ‘KPK-M’ for male interviewee living in Khyber Pakhtunkhwa (e.g., KPK-M Nufail)

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A Note on Date Format and Transliteration

On date format, the death dates of scholars are provided in both the hijri (Islamic calendar) and the common era (Gregorian calendar) form. The hijri form precedes the common era form and the two are separated by a forward slash symbol (e.g., d. 150/767 denotes the death of the scholar in 150 H or 767 CE). Where one year or century is provided, the date provided should be read as the common era form only—unless the numbers are followed by the hijri symbol (‘H’) specifically. On transliteration, Arabic and Pashto terms have been transliterated into English using the IJMES Transliteration System for Arabic, Persian, and Turkish, although I have largely omitted diacritical marks for ease of reading (with exception of ‘ for ‘ayn and ’ for medial hamza). Transliterated words are italicised per AGLC and publisher conventions.

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Contents

1

Introduction Introduction to the Research Problem Theoretical Underpinning of the Study: The Role of ‘Culture’ In Islam Scope of the Study Significance and Purpose of This Research Chapter Overview

2 The Study: Undertaking ‘Islamic’ Legal Research with a ‘Normative’ Legal Framework The Study as ‘Islamic’ Legal Research The Study as ‘Normative’ Legal Research The Methodology Question Placement of the Researcher Finding the Participants Doing Interviews with Pashtuns The Use of Percentages: ‘Seeing’ the Findings Research Challenges and Limitations Conclusion

1 2 7 11 13 15 21 22 25 29 31 34 39 45 46 48

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Contents

Part I

Marriage, Culture, and The Law

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Marriage in Islam: Consent-Seeking in Hanaf¯ı Jurisprudence A Brief Overview of Islamic Law and Jurisprudence Contextualising Marriage in Sunni Islamic Law and Jurisprudence The Elements of Marriage Consent in Hanaf¯ı Legal Doctrine Element One: Consent Guardianship: The Guardian (Wal¯ı) and the Guardianship-Partnership in Consent-Seeking Sh¯ur¯a (Consultation): The Obligation to Consult in the Guardianship-Partnership Modern Hanaf¯ı Jurisprudence on Consent-Seeking Conclusion Law in Context: Pashtun Culture and ‘Secular’ Laws in Khyber Pakhtunkhwa The Cultural Context: Pashtun Muslims of Khyber Pakhtunkhwa Marriage Consent Operative in the Law Conclusion

Part II 5

57 58 64 68 69 75 80 82 85 105 106 113 122

Finding the Divergences Between Cultural Practice and Islam

Findings on Consent: Pashtun Experiences with Consent Findings on Consent Interviewees’ Personal Consent Experiences (Theme 1) Consent in Pashtun Culture According to Interviewees (Theme 2) Interviewees’ Personal Attitudes and Beliefs on Consent (Theme 3) Interviewees’ Beliefs on Consent from an Islamic Perspective (Theme 4) Conclusion

139 141 142 152 159 164 168

Contents

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Findings on Sh¯ur¯a: A Story of ‘Shame’ in Pashtun Culture Interviewees’ Personal Sh¯ur¯a Experiences (Theme 5) Marriage Sh¯ur¯a Between Parents and Children in Pashtun Culture According to Interviewees (Theme 6) Interviewees’ Personal Beliefs on Sh¯ur¯a (Theme 7) Interviewees’ Attitudes and Beliefs on Sh¯ur¯a from Islamic Perspective (Theme 8) Conclusion Findings on Guardianship: Where Have All the Fathers Gone? Interviewees’ Recognition of Wal¯ı in Marriage (Theme 9) Interviewees’ Personal Experiences with the Wal¯ı / Nik¯ah Plaar (Theme 10) Interviewees’ Perceptions of the Nik¯ah Plaar in the Pashtun Marriage Process (Theme 11) Interviewees’ Beliefs on Nik¯ah Plaar and Wal¯ı from Islamic Perspective (Theme 12) Conclusion

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173 175 180 189 193 197 201 204 207 210 218 221

Implications, Consequences, and Possible Solutions

Understanding the Divergences: The Legal Implications of Divergence Between Law and Culture General Observations Findings on the Elements of Consent-Seeking: The Extent to Which Cultural Practice Diverges from Consent-Seeking as the Hanaf¯ı Jurisprudential Ideal Sh¯ur¯a Within the Research Sample Guardianship Within the Research Sample Interviewee Recognition of Divergence Contraventions of Law in the Findings Conclusion: The Human Cost of Breaching Islamic and Human Rights Law

227 229

234 240 245 251 253 258

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Contents

Effecting Change: Is It Possible to Bring Cultural Practice and Legal Rights Together? Summary of the Main Findings Pashtun Perspectives on the Effectiveness of Law Reform The Way Forward: Recommendations for Policy-Makers in Muslim Nation States Final Remarks

Index

267 267 270 274 282 287

Abbreviations

AUS AUS-F AUS-M CEDAW CII FATA FSC ICESCR IJLR KPK KPK-F KPK-M PBUH PK

Australia ‘Female interviewee living in Australia’ ‘Male interviewee living in Australia’ Convention on the Elimination of All Forms of Discrimination against Women Council of Islamic Ideology Federally Administered Tribal Areas Federal Shariat Court International Covenant on Economic, Social and Cultural Rights ‘Islamically justified law reform’ Khyber Pakhtunkhwa ‘Female interviewee living in Khyber Pakhtunkhwa’ ‘Male interviewee living in Khyber Pakhtunkhwa’ Peace Be Upon Him Pakistan

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List of Tables

Table 2.1 Table 2.2 Table 5.1 Table 5.2 Table 5.3 Table 6.1 Table 7.1

Demographic (and main characteristic) breakdown of research sample List of interviewee pseudonyms (with Pashto name meanings) Themes identified in data on ‘consent’ Demographic breakdown of interviewees’ consent experiences Summary of the interviewees’ characteristics at time of marriage (from Theme 1 data) Themes identified in data on ‘sh¯ur¯a’ Themes identified in data on ‘guardianship’

38 42 142 145 152 175 203

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1 Introduction

This book presents an empirical examination of marriage consentseeking among Pashtun Muslims in the Pakistani province of Khyber Pakhtunkhwa (KPK), from the perspective of the Hanaf¯ı madhhab (school of Islamic legal thought) specifically. The term ‘Pashtun’ refers to the members of an ethnic group in north Pakistan, also referred to as Pukhtuns/Pakhtuns or Pathans.1 As a predominantly Hanaf¯ı Muslim population,2 this book critically analyses consent-seeking among Pashtun Muslims—prior to the successful contracting of marriage— against consent-seeking as prescribed in Hanaf¯ı law and jurisprudence. The aim of this analysis is to determine whether Pashtun consent-seeking practices largely fall in line with, or diverge from, Hanaf¯ı law on consent. The broader theoretical question underpinning this aim is whether cultural norms that do not reflect either the spirit or letter of Islamic law have any place in the lives of Muslims, irrespective of the culture with which they identify. As I explain later in this chapter—from an Islamic legal perspective—culture is not considered holistically, but only in terms of habit and custom; thus, Islam does not condone blanket acceptance

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_1

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of any culture in its entirety.3 Instead, Muslims are required to discard cultural practices and beliefs that are harmful or contravene established religious legal principles, and to preserve only those cultural norms and practices that are sound or beneficial.4

Introduction to the Research Problem Although I have narrowed ‘marriage’ to the process of consent-seeking in this study, it is important to recognise that marriage in Pashtun culture, and all it encompasses, exists within a wider religious, and secular, framework. For Pashtuns as Muslims, Islamic law and jurisprudence directs both the spirit and legal formality of marriage. The process of contracting marriage, including the issue of consent, is considered extensively in Islamic law and jurisprudence. It is no exaggeration to say that marriage is an extremely important consideration in the life of a Muslim. Marriage is so strongly recommended throughout the schools of legal thought, that it is often believed to be religiously compulsory within many Muslim cultures. According to Wael Hallaq, the strength of this juristic recommendation to marry, from the seventh century and throughout Islamic jurisprudence historically, stems from the desire to preserve social harmony among Muslims, and to prevent the social discord that arises from socially unacceptable conduct in the realm of personal relationships (such as adultery and illicit sexual relations—both of which are among the gravest of sins in Islam).5 From a strictly legal perspective, however, marriage is only deemed compulsory by jurists for those with uncontrollable (or nearly uncontrollable) sexual desires, while remaining strongly recommended for all other Muslims who do not fall into this category.6 Thus, marriage in Islam is required to be legitimised through the marriage (Nik¯ah) contract, which not only protects the family unit, but also preserves the duties, rights, and obligations of all parties to marriage under the law. Central to marriage is the issue of consent. Kecia Ali describes marriage as ‘necessarily consensual’ in Islamic jurisprudence, given that

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valid marriage requires a contractual agreement between two consenting parties.7 However, the differences between the schools of thought arise with respect to whose consent is required to contract lawful marriage in Islam. While marriage in the West is seen as a private matter between the two potential spouses, marriage is quintessentially a family matter in Islam—a notion that is reflected throughout Islamic jurisprudence. Indeed, the question of whose consent is required for lawful marriage is reflective of the familial nature of marriage in Islam. This is because, unlike Western conceptions, marriage is considered throughout Islamic jurisprudence in a way that indicates it is more likely to be contracted by fathers on behalf of children, than by unmarried Muslims themselves. The jurisprudential texts of all four major Sunni schools of thought write extensively on the legalities of marriage contracted by a legal guardian or ‘wal¯ı’—a role automatically conferred upon fathers in the first instance—on behalf of a daughter. For three of the four major Sunni schools of thought, marriage is invalid unless it is contracted by a guardian. Thus, the involvement of a guardian gives rise to questions on the necessity to obtain consent, and the form of consent that must be obtained, for valid marriage. In the Hanaf¯ı school of thought, the concept of bul¯ugh (majority, or adulthood by way of physical maturity) is directly relevant to the question of lawful consent. Where marriage is contracted by a guardian for a man or woman of majority, consent is necessary for the valid contract of that marriage. This is because, of the four major Sunni schools of thought, only Hanaf¯ı legal doctrine does not require a guardian for the lawful contract of marriage, thereby providing men and women of majority with the legal autonomy to contract marriage themselves. In other words, marriage contracted on behalf of an adult without their consent is unlawful in the Hanaf¯ı school of thought. However, where a Hanaf¯ı woman chooses not to contract marriage for herself, the form of valid consent that must be obtained by her guardian is governed by her sexual status, in that consent can be construed from her silence if she is a virgin, and must be verbal if she is previously married (or non-virgin). This difference in the form of consent does not extend to Hanaf¯ı men, from whom explicit verbal consent is always required for valid marriage.

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In contrast to the Hanaf¯ı madhhab, it is sexual status, and not majority, which primarily governs the necessity to obtain consent in the M¯alik¯ı, Sh¯afi‘¯ı and Hanbal¯ı schools of Sunni thought. According to general juristic consensus within these schools, a legal guardian has the ability to lawfully contract marriage on behalf of a virgin woman without her consent, even if she is a virgin woman of majority.8 While Sh¯afi‘¯ı doctrine strongly encourages guardians to obtain consent from adult virgin women, consent is not legally compulsory for valid marriage in the Sh¯afi‘¯ı school.9 Hanbal¯ı doctrine also provides guardians with considerable rights in the contracting of marriage, and like Sh¯afi‘¯ı doctrine, does not require consent from a woman of majority unless she is previously married (non-virgin).10 In the M¯alik¯ı school of thought, both virginity and majority are relevant to consent. Thus, a guardian can lawfully contract marriage for a minor non-virgin without consent—and consent is only required from a woman who is of both majority (adult) and previously married (non-virgin).11 Like Hanaf¯ı doctrine, these principles on the necessity to obtain consent from adult women, dependent upon sexual status, do not extend to men in these three schools, from whom explicit verbal consent is always required for valid marriage. However, of the four major Sunni schools of thought, only Hanaf¯ı legal doctrine requires consent from men and women of majority, irrespective of sexual status, and both men and women may contract marriage without the involvement of a guardian—a notion that is rejected by the M¯alik¯ı, Sh¯afi‘¯ı, and Hanbal¯ı schools of thought. From the general legal principles explicated thus far, it is clear that both marriage and consent are considered extensively throughout the schools of thought. Yet, although extensively governed, marriage looks different within the Muslim ummah 12 in a way that does not reflect the legal differences between the jurisprudential schools. Instead, marriage among Muslims naturally reflects the culture in which it takes place. A Malaysian Muslim marriage process is very different to the marriage process among Muslims in Sudan, which looks different to the marriage process among Muslims in Jordan. This is no different for marriage and consent-seeking among Pashtun Muslims in KPK.

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As it is for Muslims generally, marriage is exceptionally important to Pashtuns. Located between India and Afghanistan, wedding celebrations in Pakistani Pashtun culture effortlessly tie traditional South Asian customs from wider Pakistan and India with uniquely Pashtun traditions that also bear some resemblance to Afghan customs.13 Marriage celebrations span weeks and are made up of different events, such as numerous nakha or mehndi nights, where intricately patterned stains are applied to the hands of the bride and other women to celebrate the marriage; the formal Nik¯ah ceremony, during which the Islamic marriage contract is signed and marriage formalised in the eyes of God and therefore the community; the junj or baraat ceremony, a communally witnessed procession in which the bride formally leaves her parents for her new home; and the walimah ceremony, where a large number of guests are invited for food and celebration in accordance with the Sunni religious requirement to make the marriage widespread public knowledge. Marriage is ideally contracted for a Pashtun woman in her early twenties and for a man in his late twenties to early thirties. Pashtun women over twenty-five years of age often find it difficult to get married in KPK, as cultural norms relegate ‘older’ women to spinsterhood quickly, and sometimes irreversibly. As a result, the attainment of married status is effectively compulsory upon all unmarried Pashtuns, and especially upon young Pashtun women. However, marriage is primarily the domain of parents in Pashtun culture. Unmarried Pashtuns are expected to acquiesce to the decisions of their parents in marriage and spousal decision-making. Strong cultural norms of respect and modesty, and a ubiquitous cultural expectation for acquiescence to elders, mean that unmarried Pashtuns often do not choose their own spouses for marriage, nor are they involved in the decision-making process to any significant degree. Thus, marriage in Pashtun culture is both cultural and religious, although, as will become evident throughout the rest of this book, it is often difficult to determine which is more important in the marriage process for many Pashtuns. It is quite important to note at this point that the Pashtun cultural context is very relevant to the Hanaf¯ı jurisprudential focus of this study. As I discuss in more detail later in Chapter 4, with a population of approximately fifty million, Pashtuns represent the largest segmentary

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tribal lineage in the world.14 According to the Pakistani Bureau of Statistics, within this population, approximately 99.5% are Muslim,15 with the overwhelming majority adhering to Sunni Islam and the Hanaf¯ı madhhab specifically. As a result, I examine consent-seeking from the Hanaf¯ı legal perspective only, and the three other major Sunni schools of thought (i.e., the M¯alik¯ı, Sh¯afi‘¯ı, and Hanbal¯ı schools) are not considered for the purpose of analysing Pashtun consent-seeking practices in this book. However, Hanaf¯ı law is not the only legal system relevant to consentseeking in the Pashtun cultural context of KPK. For Pashtuns as citizens, practices like non-consensual marriage also contravene federal and international laws which govern the legalities of marriage in the province. Where it exists, the practice of non-consensual marriage offends both the legal necessity to obtain consent in Hanaf¯ı legal doctrine and non-shar¯ı ‘a laws pertaining to the rights of persons in marriage. And so, although this book primarily examines consent-seeking in Pashtun culture from a religious legal perspective, I also briefly examine consent-seeking from a secular legal perspective due to its relevance to Pashtuns as State and global citizens in Chapter 4. In addition to the madhhab (school of thought) focus, there are two other limitations directly relevant to the jurisprudential focus here. First, only the experiences and beliefs of married Pashtuns—whose personal consent-seeking experiences had resulted in the successful contracting of marriage—are examined. Although unmarried Pashtuns may also be able to recount personal consent-seeking experiences, only married Pashtuns could recount whether their marriage was contracted with consent—and the kind of consent given. Thus, I have limited analysis to the successful contracting of marriage and not consent-seeking processes that did not result in marriage. The second limitation, which is extremely relevant to Hanaf¯ı law and jurisprudence reviewed later in Chapter 3, is the age of the interviewees at the time of marriage. Unlike the first limitation, this limitation was not deliberate; however, the final research sample indicated that all of my interviewees were of majority (or had reached puberty by way of physical maturity) at the time of marriage. This book subsequently focusses on the experiences of adult Pashtun men and women only and does not

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consider the marriage of children (i.e., child or ‘minor’ marriage). The next section examines the broader theoretical question that underpins this study from an Islamic legal perspective.

Theoretical Underpinning of the Study: The Role of ‘Culture’ In Islam This book began as the doctoral research of my PhD completed in 2019. Those familiar with the usual conventions of doctoral research would know that my study had to be focussed on answering a particular question, or set of questions, in order to be manageable within the time and resource constraints of doctoral research. However—for me personally— the purpose of undertaking the study was also to provide a framework for myself (and indeed other researchers) for further research of this kind. This study, in its method and design, provides a framework for the analysis of any cultural practice, among any ethnic or national group of Muslims, against the relevant Islamic legal principles to determine whether the practice (as well as cultural attitudes and beliefs surrounding the practice) reflects, or diverges from, the spirit or letter of Islam. In other words, my methodological approach was designed to be transferrable to any cultural norm or practice that warrants examination from a religious legal perspective. Ultimately, this book narrates a study that is both ‘Islamic’ and ‘normative’ legal research, in that it considers cultural practices as they are, and analyses them against what they should be from a religious legal perspective. However, as touched upon earlier, there is a broader theoretical question underpinning this study, drawn from literature on the unique role of culture from an Islamic legal perspective. That question is whether cultural norms that do not reflect the spirit or letter of Islamic law have any place in the lives of Muslims, irrespective of the culture with which they identify.16 As the unpinning theoretical question does not relate to consent-seeking specifically, it is not necessary to delve into the jurisprudence in great depth here. This section subsequently provides a general explanation of the ‘intended’ role of culture in the lives of Muslims.

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Throughout this work, I employ the word ‘culture’ in its modern Western anthropological sense. As we will see in a moment, ‘culture’ was not originally understood in Islamic law and jurisprudence in the holistic way that we tend to conceive of the term today, thereby rendering the Western anthropological definition more apt in the context of this study. Culture in the Western anthropological sense is best explained as the ‘patterns, explicit and implicit, of and for behaviour acquired and transmitted by symbols … the essential core of culture consists of traditional (i.e., historically derived and selected) ideas and especially their attached values’.17 I subsequently refer to ‘culture’ in the sense of a unique set of attitudes, values, behaviour, beliefs, ideals, customs, norms, and taboos, specific to an individual within, or from, a culture, that are passed on to successive generations. In other words, I refer to culture ‘as a social category; culture regarded as the whole way of life of a people … the zone of concern within sociology and anthropology and … cultural studies’.18 More specifically, I analyse ‘nonmaterial culture’, or the underlying conscious and subconscious reasoning that influences every thought and act undertaken by persons within, or from, a culture. ‘Material culture’— that is, the tangible or popular representation of the way of life of a particular group of people, such as dress, language, food, music, and dance—falls outside the context of ‘culture’ as I have employed the term in this work, unless otherwise specified.19 Interestingly, from an Islamic legal perspective, the Western concept of ‘culture’ is problematic to Muslim life; instead, the concept is discussed by jurists only in terms of ‘custom’ (‘urf ) and ‘individual usage’ (‘¯adah).20 However, it is precisely this lack of a holistic concept of ‘culture’ that justifies an examination of Muslim cultural practice against religious legal principles. This is because Islam does not condone blanket acceptance of any culture in its entirety.21 Rather, Muslims are required to discard those cultural practices and beliefs that are harmful or contravene established religious legal principles, and to preserve only those cultural norms and practices that are sound or beneficial, and do not offend any existing religious legal principle.22 In terms of the concepts themselves, both ‘urf and ‘¯adah are associated with the concept of ‘custom’ in Arabic. In Islamic jurisprudence, the term ‘urf means, ‘what is known or what is good’; linguistically, however,

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‘urf signifies custom ‘as a social norm’, whether the norm is positive or negative.23 According to Ayman Shabana, ‘urf is a synonym for the Arabic word ma ‘r¯uf , which means, ‘what is well known, commendable, or praiseworthy’.24 Shabana notes that the most common definition of ‘urf ‘stands for what has been rooted in (people’s hearts and) spirits by the testimony of intellects and that is deemed compatible with good nature’; on the other hand, ‘¯adah denotes ‘a habit or character trait’, and signifies custom as an individual norm that refers to the habits that an individual acquires or develops.25 He suggests that the most common definition of ‘urf indicates that it is custom with historical and traditional roots, and therefore, denotes those customs that have evolved and continued within a society through time. This highlights its rational justifiability—an important feature of ‘urf —but not necessarily of ‘¯adah. For this reason, Shabana states that ‘¯adah may not be accepted into Islamic law as it ‘refers to a continuous practice whose repetition cannot be explained rationally’ by Islamic jurisprudents.26 Therefore, ‘¯adah denotes those customs which may be particular to a society, but are recent, peculiar, or have historically been converted from elsewhere (such as another or previous culture, society, or religion). Thus, Islam is not culturally predatory, however, nor does its acceptance of cultural practice amount to acceptance of any culture in its entirety.27 Instead, Islamic law only accepts ‘those aspects of culture which are generally recognized as good, beneficial, or merely harmless’.28 From a jurisprudential perspective, blanket acceptance of any indigenous culture is negligent and counterproductive to establishing a positive Muslim cultural identity that improves upon harmful cultural practices and beliefs.29 On the other hand, there is widespread acceptance of the idea that sound or beneficial cultural norms and practices were (and are) not to be eradicated by the introduction of Islam to a society.30 Unlike ‘culture’, it is certainly the case that the narrow jurisprudential concept of ‘custom’ has significantly influenced the formation of Islamic law since the time of Prophet Muhammad PBUH in seventhcentury Arabia. The term for custom (‘urf ) is found several times in the Qur’an, with one particular reference that scholars believe works to underpin custom as an Islamic legal concept. This is the use of the term ‘urf in verse 7:199 of the Qur’an, which Shabana states has three main

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interpretations: (1) ‘what is good and commendable’; (2) ‘what is known and accepted as a good common practise’; and (3) ‘what is known to be important and necessary’.31 Further, Prophet Muhammad explicitly held that, where a custom contradicted revelation, Muslims must discard the offensive custom.32 In other words, custom is applicable to the lives of Muslims, but is only applicable subject to its ratification within, and by, Islamic legal principles. This notion is vital to any examination of cultural practices within a Muslim majority society, such as this study. In terms of the Hanaf¯ı madhhab specifically, Wael Hallaq has examined the tentative and heterogeneous acceptance of custom by prominent Hanaf¯ı jurists.33 For example, he notes that classical Hanaf¯ı jurist, Ab¯u Y¯usuf (d. 182/798), did recognise custom as a source of Islamic law, although his position was not accepted by the wider Hanaf¯ı madhhab for many centuries; the integration of custom into Hanaf¯ı law increased only after the twelfth century, and even then, continued to be incorporated only on a ‘case by case basis’.34 According to Hallaq, the Hanaf¯ı reluctance to accept custom as a source of law stemmed from the juristic inability to establish a religious textual authority for its inclusion—a ¯ ın reluctance that was circumvented many centuries later by Ibn ‘Abid¯ (d. 1252/1836), who argued that custom could override established Hanaf¯ı law if it did not contradict the Qur’an or had¯ıth.35 The Hanaf¯ı madhhab makes only fleeting or occasional references to custom, the majority of which are restricted to extremely specific issues of law. Their tendency ‘to confine custom to very specific cases’ is akin to the wider Islamic perspective of culture offered by Abd-Allah; that is, culture is only recognised in Islam in terms of ‘urf and ‘¯adah.36 Significantly, the specificity in absorbing customary norms and practices into the Muslim way of life proves that Islam does not promote the rejection of culture entirely.37 It can be argued with certainty that ‘good, beneficial, and harmless’ aspects of culture belong within the legal framework of Islam. Or, in the words of Hallaq, Islam, ‘enmeshed with local customs, moral values and social practises … [is] a way of life’.38 Yet, if culture is not to be adopted wholesale by Muslims, then the theoretical question underpinning this study remains a potent justification for determining the legality

1 Introduction

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of cultural norms and practices in the way that I have attempted in this book.

Scope of the Study This study considers the role of culture from an Islamic legal perspective alone and does not focus on the fields of law and society/socio-legal studies, legal anthropology, legal geography, or law and religion more broadly. While I acknowledge that these fields do relate to the law/culture relationship in a wider scholarly sense, focusing on other legal and sociolegal fields would delve beyond the aim and scope of the study as Islamic legal research and requires an analysis of literature that is too broad in the context of this research. For example, the theoretical question underpinning this study stems from the established principle of shar¯ı ‘a examined in the preceding section. As an established principle of shar¯ı ‘a, this legal question underpins my analysis of the religious lawfulness of Pashtun consent-seeking norms and practices and is primarily used to justify any subsequent normative judgement that reform is needed to bring cultural practices in line with the relevant religious legal principles. Thus, although this study sits broadly in the area of intersection between law and religion—as academic research that utilises modern legal and social science research methods to address Islamic legal questions—it must be distinguished as ‘Islamic research’ on Muslims and Muslim society specifically, and characterised as research that contributes to Islamic legal/socio-legal research or scholarship more broadly.39 My decision to restrict this book to an Islamic legal perspective is a very deliberate one in another sense—one that relates to the recommendations acting as a ‘starting point’ for reform in KPK. As I explain in the next chapter, being able to provide solutions to the legal issues identified was necessary within the framework of normative legal research. However, in the course of undertaking my interviews, it became clear that the specific lens through which the findings were reported was crucial to the likelihood of effecting practical change, should the research become publicly accessible to policymakers in Khyber Pakhtunkhwa.

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What I found was that a very real tension exists between the concepts of ‘Western’ and ‘Islamic’ law among Pashtuns. Indeed, Islam is so incredibly important in Pashtun culture, that adherence to Islam (shariat ) is enshrined in the Pashtun code of honour—an importance that does not extend to ‘secular’ law in the province. As we will see later in Chapter 4, this tension is reflected in the legal system of Pakistan more broadly and has led to the repeated failure of marriage law amendments in Khyber Pakhtunkhwa at the provincial level, as well as at the federal legislative level. For example, Human Rights Watch reports that in 2021, the practices of child and forced marriage remain a ‘serious problem’ in Pakistan, with ‘21 percent of girls marrying before age 18, and 3 percent marrying before 15’, with little government intervention to curb such marriages to date.40 Yet, amendments such as raising the marriageable age of girls from 16 to 18 years of age have been deemed ‘un-Islamic’ and ‘irrelevant’ by peak religious bodies in Pakistan and have been stymied repeatedly as attempts to ‘secularise’ or ‘Westernise’ the marriage practices of Muslims in the country. The rejection of secularisation and Westernisation is reflected in the more visceral rejection of feminism, feminists, and feminist projects by many Pashtuns (and Pakistanis generally).41 In fact, the categorisation was one that I had to refute personally as many of my interviewees were reluctant to participate in a ‘feminist’ study of any kind. This was not revelatory to me; a cursory search of both extant literature and recent media confirms that patriarchal values are entrenched in Pashtun culture, to the extent that violence against public ‘feminist’ figures is not only common, but even expected among the general population in the province.42 Further, in Pakistan more broadly, the past two years have seen a surge in brutality against women across the country. In contrast to so many that have gone unnoticed and disregarded in the past, a number of these recent cases have animated and angered the nation,43 and have even catalysed changes in procedural and sentencing laws in Pakistan.44 In fact, today, the country is seeing an unprecedented rise in social awareness and activism in parts of the population, particularly among younger Pakistanis.45 The increasing social appetite for change makes a study such as this one incredibly relevant at this moment in the country’s history.

1 Introduction

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Consequently, in the midst of this appetite for change and reform, it was very important to me that at the very least, this study would not be rejected on the basis of notions such as being an attempt to ‘Westernise’ or ‘secularise’ Pashtuns, or dismissed as a Western-inspired ‘feminist’ project. At the risk of becoming emotive, I am incredibly proud of my religion. It has enriched and, without overstating the feeling, has ordered my life in the best way. All of these considerations, as well as conversations with my research team, lead me to tailor this study and its recommendations to the Pashtun cultural context—and to narrow the scope of the study religiously to an Islamic legal perspective—so that it could effect successful practical change if made publicly accessible in the future. Two years later, as I sit down to edit this book, I still believe that these findings are more likely to be considered seriously by lawmakers in Pakistan, especially in KPK, if they are more legalistic than anything else. Thus, although the contribution of other fields is incredibly valuable to the issues examined in this book, I have left those analyses to better scholars than myself, in order to focus on the one perspective that I found to be most acceptable, and most likely to lead to reform, among the Pashtuns of Khyber Pakhtunkhwa. Consequently, the specificity of this focus is a limitation of this study, particularly given the rich scholarship on law and culture in other fields. Nominating the deeper scholarly connections between law and culture from the perspective of other legal and socio-legal fields, and mapping the unique Islamic legal perspective with other literatures, would be an interesting topic for further research—and may indeed form the basis of future publications to arise from the findings of this study.

Significance and Purpose of This Research Although previous research has found that some Pashtun marriage practices diverge from Islamic and secular legal principles, the extent to which Pashtun norms and practices diverge from Hanaf¯ı legal principles, as the specific religious legal context relevant to the majority of Pashtuns in KPK, has not been examined. Further, Pashtun attitudes and beliefs on consent-seeking have not yet been explored in the literature. No previous

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research on marriage in Pashtun culture has examined consent-seeking in the same detail, nor compared Hanaf¯ı jurisprudence with empirical data in the way of this study. Subsequently, the most original undertaking of this study was the breakdown of Hanaf¯ı law and jurisprudence into three ‘elements’ of consent-seeking. In addition to consent as the primary factor relevant to valid marriage, I derived two original factors relevant to the process of consent-seeking from the Hanaf¯ı jurisprudential concept of the wil¯ayat mush¯araka (guardianship-partnership). Thus, the three elements that I identified were: (1) consent (necessity and form); (2) the role of sh¯ur¯a (consultation) in the process of deciding upon marriage; and (3) the role of the wal¯ı (legal guardian) in contracting marriage—all of which are explicated fully in Chapter 3. As we will see in Part II (the data chapters), in addition to being a novel approach, this elemental fracturing of the ‘consent-seeking’ process was incredibly useful to determining the extent of any divergence found to exist in the empirical data—perhaps more than a broad-spectrum comparison would have allowed. This was particularly true for the element of consent, where I fractured Hanaf¯ı jurisprudence further into its requisite legal elements (i.e., majority and marital status; form of consent; and obligations upon the wal¯ı when ‘interpreting’ consent). At a more particular level, significance and originality also lie in the purpose of undertaking this study to address the gap in existing scholarship on consent-seeking in Muslim cultural contexts (such as Pashtun Muslims). While the issue of consent has been subject to rigorous academic research, the process of consent-seeking has not reached the same saturation in literature—in that the role of sh¯ur¯a/consultation, and the wal¯ı/guardian, has not been empirically researched together with the issue of consent. Indeed, consent-seeking has not been researched with regard to any Muslim cultural context in the body of existing literature. This book consequently brings Pashtun cultural milieu, infrequently the subject of existing scholarship thus far, to the forefront in its examination of Hanaf¯ı legal principles on consent-seeking.

1 Introduction

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Chapter Overview The next chapter (Chapter 2) describes the methodology employed in this study—both the research process and the rationale for conducting ‘Islamic’ legal research using a ‘normative’ legal framework are provided in this chapter. Following the methodology chapter, Part I of this book encompasses the entirety of the literature review. Chapter 3 presents my breakdown of consent-seeking into ‘elements’ derived from Hanaf¯ı jurisprudence on marriage and consent. Chapter 4 then studies the broader contexts at play, including an exploration of Pashtun culture itself, followed by an examination of the provincial, federal, and international laws that also exist to govern consent-seeking in KPK. Part II (Chapters 5–7) comprises the ‘data chapters’—these three chapters are the ‘meat’ of this book—in which the personal experiences and beliefs of the Pashtun interviewees are analysed against each element of consent-seeking. Part III subsequently comprises the discussion and recommendation chapters. Chapter 8 discusses the implications of this study—including a determination of whether, and to what extent, Pashtun consent-seeking practices diverge from Hanaf¯ı doctrine. Finally, Chapter 9 considers the most effective agents of change in Pashtun culture, before concluding with practical recommendations for reform in the context of Khyber Pakhtunkhwa.

Notes 1. The Pashtun/Pakhtun terms stem from variances in Pashto dialects, while the term Pathan is often used by those outside the culture, including Pakistanis from other provinces of the country. 2. Sana Haroon, ‘Competing Views of Pashtun Tribalism, Islam, and Society in the Indo-Afghan Borderlands’ in Nile Green (ed), Afghanistan’s Islam (University of California Press, 2017) 145, 155. 3. Ayman Shabana, Custom in Islamic Law and Legal Theory: The Devel¯ opment of the Concepts of ‘Urf and ‘Adah in the Islamic Legal Tradition

16

4. 5. 6.

7. 8. 9. 10. 11. 12.

13.

14.

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(Palgrave Macmillan, 2010) 4; Umar Farooq Abd-Allah, ‘Islam and the Cultural Imperative’ (2009) 1(2) IAIS Journal of Civilisation Studies 1, 8. Abd-Allah, above n 3, 8 n 6. Wael B Hallaq, Shar¯ı’a: Theory, Practise, Transformations (Cambridge University Press, 2009) 271–2. Ibid. Hallaq notes that marriage for those with average sex drive is recommended; however, it is obligatory on those for whom sexual desire is uncontrollable, or reaching uncontrollability. For the latter, failing to marry results in ithm (a sort of sin), which is punishable in the Hereafter. Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010) 31. Ibid 33–7; Hallaq, above n 5, 274–5. Ali, above n 7, 35. Hallaq, above n 5, 274. Ali, above n 7, 33. Ummah is an Arabic term which refers to ‘the community of Muslim believers’; the worldwide Muslim populace is referred to as the Muslim ummah: see Mucahit Bilici, ‘Ummah and Empire: Global Formations After Nation’ in Ibrahim M Abu-Rabi’ (ed), The Blackwell Companion to Contemporary Islamic Thought (Blackwell Publishing Ltd, 2006) 313, 319. The amalgamation of Pakistani/Indian, and Pashtun customs and traditions are not limited to marriage alone, extending to cuisine, clothing, and other day to day customs. A ‘segmentary lineage’ tribal society is one in which equivalent ‘segments’ are connected through the existence of shared values and beliefs. The nuclear family constitutes the smallest segment; however, the nuclear family expands to form a larger segment when blood relations are under threat. The extended family segment will expand to another larger segment where the wider tribe is threatened by another. In the Pashtun context, an example is that of the relationship between cousins (tarboor ). The word tarboor means both ‘cousin’ and ‘enemy’ in Pashto. Brothers stand with each other against their cousins, yet, will stand with their cousins against

1 Introduction

15.

16. 17.

18. 19.

20. 21.

22. 23. 24. 25. 26. 27. 28.

17

outsiders. The existence of shared values and beliefs held by both the smaller and larger segments characterises a segmentary lineage tribal society: M G Smith, ‘On Segmentary Lineage Systems’ (1956) 86(2) The Journal of the Royal Anthropological Institute of Great Britain and Ireland 39. Pakistani Bureau of Statistics, Population by Religion (2018) Government of Pakistan . Abd-Allah, above n 3. Albert Kroeber and Clyde Kluckholm, Culture: A Critical Review of Concepts and Definitions (Vintage Books, 1963) in Nancy Adler, International Dimensions of Organizational Behaviour (SouthWestern College Publishing, 3rd ed, 1997) 14. Chris Jenks, Culture (Routledge, 1993) 1. Raymond Scupin and Christopher R DeCorse, Anthropology: A Global Perspective (Prentice-Hall Inc, 1998) 203–4; Lois Beck and Nikki Keddie (eds), Women in the Muslim World (Harvard University Press, 1978); Elizabeth W Fernea and Robert A Fernea, ‘A Look Behind the Veil’ (1979) 2 Human Nature 68. Shabana, above n 3, 4. See generally Ayman Shabana, Customary Implications in Islamic Law: The Development of the Concept of ‘urf in the Islamic Legal Tradition (PhD Dissertation, University of California, 2009); Shabana, above n 3; Abd-Allah, above n 3; Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Islamic Texts Society, 1999) ch 14; Gideon Libson, ‘On the Development of Custom as a Source of Law in Islamic Law: Al-ruj¯u ‘u il¯a al- ‘urfi ahadu al-qaw¯a ‘idi al-khamsi allat¯ı yatabann¯a ‘alayh¯a al-fiqhu’ (1997) 4(2) Islamic Law and Society 131. Abd-Allah, above n 3, 8 n 6. Shabana, above n 3, 50–1. Shabana, above n 3, 51–2. Shabana, above n 3, 49–50. Ibid. Abd-Allah, above n 3, 2–8. Ibid 8. See also Kamali, above n 21, 248.

18

29. 30. 31. 32. 33. 34.

35. 36. 37. 38. 39.

40.

41.

42.

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Abd-Allah, above n 3, 8 n 6. Abd-Allah, above n 3, 9. Shabana, above n 3, 50–1. Shabana, above n 3, 56. Wael B Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge University Press, 2001) 215–233. Ibid 216. Ab¯u Y¯usuf lived in the seventh-eighth centuries and is known as the second most authoritative Hanaf¯ı scholar after the founder of the Hanaf¯ı school of thought, Ab¯u Han¯ıfa (d. 150/767). Hallaq, Authority, Continuity, and Change in Islamic Law, above n 33, 217. Hallaq, Authority, Continuity, and Change in Islamic Law, above n 33, 216, 224–5; Shabana, above n 3, 164–6. Abd-Allah, above n 3, 8–10. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 5, 544. Mahdi Zahraa, ‘Unique Islamic Law Methodology and the Validity of Modern Legal and Social Science Research Methods for Islamic Research’ (2003) 18(3/4) Arab Law Quarterly 215. Human Rights Watch, World Report 2021: Pakistan Events of 2020 (2021) . See Noor Sanauddin, Jamil Ahmad Chitrali and Shakeel Ahmad, ‘Chadar and Chardiwari: An Outline of Pashtun Patriarchy’ (2015) 22(2) PUTAJ Humanities and Social Sciences 63. Safe World For Women, Pakistan: Obstacles to Pashtun Women’s Leadership (12 October 2012) Peace Women: Women’s International League for Peace and Freedom ; Mushtaq Yusufzai and Saphora Smith, ‘4 Women Who Ran Empowerment Workshops Killed in Pakistan’, NBC News (online), 23 February 2021, ; Kumail Ahmed, ‘Pakistan: Women’s Rights Activist Killed’, Global Voices (online), 7 July 2012 .

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43. Human Rights Watch, World Report 2021: Pakistan Events of 2020, above n 40; see also Somaiyah Hafeez, ‘Pakistan’s problem with violence against women is growing impossible to ignore’, The Diplomat (online), 7 August 2021 ; Kathy Gannon, ‘Brutal Killing Spotlights Violence Against Women in Pakistan’, The Diplomat (online), 2 August 2021 < https://thediplomat.com/2021/08/brutal-killing-spo tlights-violence-against-women-in-pakistan/>. 44. Anti-Rape (Investigation and Trial) Ordinance 2020 (Pakistan). This ordinance expedites rape case trials to a maximum four month trial period, and approves chemical castration as punitive punishment for repeat offending rapists. 45. BBC World Asia, ‘Pakistan Outcry over Police Victim-Blaming of Gang-Raped Mother’, BBC News (online), 19 September 2020 .

2 The Study: Undertaking ‘Islamic’ Legal Research with a ‘Normative’ Legal Framework

The decision to conduct a particular kind of research (such as empirical research) and to employ a specific qualitative method follows consideration of various factors. For Islamic research that analyses cultural practice against shar¯ı‘a and fiqh, modern legal and socio-legal methods are accepted as ‘credible’ methods for such research.1 These methods ‘can play an immensely significant role in facilitating Islamic research relating to people’s habits and usages’, particularly as they are unlikely to distort religious legal principles where clear distinctions are made between Muslim practice and divine shar¯ı‘a principles.2 However, modern methods may only be employed where there is a gap in Islamic methodology, and subsequently, must exhibit the characteristics of Islamic research when conducted (which are listed later in this chapter). The gap that this study addresses is an evidence-based analysis of Pashtun consent-seeking practices and beliefs from the Hanaf¯ı jurisprudential perspective. Further, an empirical investigation of the extent to which Pashtun cultural practices may violate Hanaf¯ı legal principles is almost entirely unknown.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_2

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This chapter sets out the research methodology, providing the reader with an understanding of the research process undertaken. To demonstrate how this study contributes to scholarship on two legal fronts, both the nature of the study as Islamic legal research and simultaneously, its normative legal research framework are detailed in this chapter. This is followed by a look at the particular qualitative method that I utilised, to show how the data was collected and analysed for the purpose of forming scholarly conclusions on the divergences between cultural practice and legal doctrine. The challenges and limitations of the study and the methodology conclude the chapter. The reader will find my personal thoughts and experiences interspersed throughout this chapter; they are included here because they served to keep this study anchored in the human experience. All this is, after all, is the search for an answer to a human question.

The Study as ‘Islamic’ Legal Research In order to understand such decisions of methodology and research design, it is necessary to explain the nature of this study as legal research that is both ‘Islamic’ and ‘normative’ legal research, and the implications of this dual categorisation on the underlying framework and design of this study. First, let us consider what constitutes ‘Islamic’ research. Scholarly literature on Islam can be divided into two broad types. Mahdi Zahraa writes that there is a dichotomy between the reality of Muslim practice and Islamic teachings.3 Subsequently, there are two types of Islamic research that are relevant to modern legal, socio-legal, and social science research. These types are: (i) research that considers the ‘principles, rules and rulings’ of Islamic law and jurisprudence; and (ii) research that considers Muslims and Muslim societies.4 The first type of research considers the principles and rulings of Islamic law, found in the body of primary and authentic jurisprudential texts that are authored by Muslim jurists. This type of research can be conducted for two purposes. Where research considers legal principles and rulings using the Islamic law methodology, that research is undertaken for the

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purpose of ‘ijtih¯ad (independent legal reasoning) and can establish new, or alter existing, Islamic legal principles. However, as part of the legal method that contributes to the body of Islamic law and jurisprudence, ‘ijtih¯ad can only be undertaken by highly qualified Muslim jurists.5 On the other hand, research that considers Islamic law and jurisprudence without exercising ‘ijtih¯ad can be undertaken by any academic researcher and does not require formal religious qualifications. This second purpose for undertaking Islamic legal research cannot establish or modify Islamic legal principles; rather, it can only examine the works of Muslim jurists for the purposes of comparison, commentary, and analysis. As a result, academic literature on Islam cannot, and does not, form part of the body of legal and jurisprudential works as they are ‘concerned with an empirical research that investigates Muslims’ practices, traditions, behaviour, habits and conduct’.6 In simpler terms, there is a clear distinction between Islamic legal and jurisprudential literature, and academic literature on issues relating to Islam and Muslims which may influence jurists in areas requiring social, customary, or legal reform. In terms of Islamic legal research without exercising ‘ijtih¯ad , such research must employ modern legal and social science research methods that are ‘valid for the target, aims and optimum results of the research’.7 ‘Modern’ legal, socio-legal, and social science methodologies include empirical research methods, such as qualitative interviews, surveys, case studies, observational studies, and questionnaires. Although modern empirical methods can be (and are) employed to undertake many types of legal research, it is imperative to understand the unique context in which Islamic research, particularly that which concerns shar¯ı‘a principles, must be undertaken. For Muslims, shar¯ı‘a relates to every aspect of life, ‘regardless of whether it relates to ritual or transactional matters or of its description as an internal/municipal or international conduct’.8 This understanding of shar¯ı‘a not only led to the provision of detailed legal principles and rulings on almost every aspect of the ritual, personal, and transactional life of a Muslim throughout the formative and classical periods, but also to the development of a unique legal science and methodology when considering such matters—the process of us¯ul al-fiqh or deriving legal theory from shar¯ı‘a.9 Most significantly, when deriving the body of

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jurisprudence relating to all aspects of life, Muslim jurists and scholars expanded their consideration of legal principles and rulings to the political, social, and economic context within which they derived or applied law.10 Thus, an important factor in modern Islamic research is that, … the researcher has to draw a clear distinction between Muslims’ practises that stem from their perception of Islam and the true Islamic teachings. This is because Muslims’ practises and true Islamic teachings denote two separate notions and realities. Muslims’ practises are those that conform to certain rules and principles that a group of people calling themselves Muslims consider as binding Islamic law. True Islamic teachings, on the other hand, is Islamic Shar¯ı‘ah as Allah (the Exalted) and his Prophet (pbuh) originally intended it to be practised. Although both have co-existed since the birth of Islam, they may or may not concur with each other. … Furthermore, seen from a micro-sociological perspective, there have always been certain groups that to a greater or lesser extent comply with true Islamic teachings and other groups that to a greater or lesser extent depart from true Islamic teachings regardless of whether the State or society was complying or not with true Islamic teachings.11

To ascertain whether the practices of Muslims reflect ‘true Islamic teachings’, the practice, action, or transactional conduct must be ‘tested’ against the relevant shar¯ı‘a principles, rules, or rulings.12 For research that considers Islamic legal issues, modern empirical and legal/socio-legal research methods can be employed to identify and describe a practice in question, and the findings can be evaluated against shar¯ı‘a and/or fiqh principles, so long as the latter divine legal principles are not misrepresented or distorted to fit the findings. Indeed, the utilisation of modern research methods improves upon the practice of classical jurists, many of whom relied on much more simplistic methods of observation to identify and analyse Muslims’ practices for the purpose of their legal and jurisprudential rulings.13 As empirical research, this study subsequently falls within the field of Islamic legal/socio-legal research or scholarship more broadly and is not undertaken for the purpose of ‘ijtih¯ad to establish new, or alter existing, Islamic legal principles. However, as research that fits into academic Muslim scholarship more broadly, it is hoped that the findings of this

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25

study may operate as a starting point for provincial legal reform in Khyber Pakhtunkhwa, based on the responses of the Pashtun men and women who shared their lived experiences in the pages of this book. Indeed, this view of empirical research as a way of informing potential improvements to law and/or policy is not novel; normative research has been discussed by Western legal scholars extensively. The normative framework utilised in this study is discussed in the next section.

The Study as ‘Normative’ Legal Research In the rigorous process of designing a research study, it is well established that a ‘framework’ is necessary to provide the contextual basis of the research and to justify the chosen research methodology.14 For research that is empirical in nature, a ‘theoretical’ framework effectively contextualises questions that seek to investigate possible ‘explanations or causes’ through empirical investigative methods, and is particularly featured in social science and humanities research methodologies.15 Unlike these fields of research, however, legal research is often more concerned with ‘prescriptive or normative’ conclusions than descriptive or explanatory statements of empirical fact; that is, legal research is often more concerned with investigating questions on what ‘ought’ or ought not to be.16 According to Sanne Taekama, the practice of law itself ‘lives and breathes normativity’,17 and this inherent normativity in legal practice is reflected in legal research, While social science research attempts to answer descriptive and explanatory questions, aiming to explain features of human behaviour and society, legal research also attempts to answer evaluative and normative questions. Such questions have a need for a different kind of framework, not one that can explain why law is what it is, but a framework that can provide arguments for a judgement that the law is good or bad. An explanatory theoretical framework does not provide such arguments. … Rather than an explanatory theoretical framework, legal research pursuing normative questions needs a normative framework. Under the

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broad rubric of normative questions we usually group evaluative questions, assessing the positive or negative quality of law, and prescriptive questions, determining what should be done to improve the situation.18

A normative framework in legal research can either be classed as an ‘internal’ framework, an ‘external’ framework, or much less often as a combination of the two.19 An internal framework refers to ‘standards that are part of the law, its principles and values’, and considers ‘explicitly stated or implicitly presupposed’ (i.e., positive) principles of law.20 Positive law and legal principles subsequently provide the ‘standards of evaluation’ from which a normative framework can be developed.21 In contrast, an external normative framework considers aspects that are, in effect, external to the legal system itself, such as relevant social and political factors, and policy aims related to the implementation or change of law.22 The ‘identifiable purposes that a law is meant to serve’ can therefore serve as the standards of evaluation in an external normative framework.23 Although internal normative research is perhaps more aligned with traditional legal research, a normative framework need not be limited to ‘internal legal purposes’ only, particularly given the rise in empirical legal research in recent times.24 Legal research can therefore consider both internal and external normative standards. Research with either normative framework should ideally consider the evaluative and prescriptive together.25 In other words, to answer the ‘ought’ question, normative judgements must be grounded in, and relate to, the descriptive or evaluative aspects of the research, such as empirical data. However, uncritical reliance upon empirical results is also not ideal; the inherently flawed nature of such research means that it is not sensible to wholly accept or reject such findings for legal or policy reasons.26 Instead, empirical research that investigates legal questions should inform, but not necessarily necessitate, legal or policy changes.27 Thus, ‘the aim of legal studies is not to put an end to normative uncertainty, but to take this uncertainty as a starting point’.28 As a starting point, empirical methods can be used to articulate arguments for and against a solution, followed by a determination of whether the arguments may ‘fit into an already existing normative setting’, such as comparison with another legal jurisdiction to justify the plausibility (or

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otherwise) of the specific solution within the jurisdiction under examination.29 In contrast, a simple normative judgement—such as one which simply concludes that change is necessary—stops short of the ‘practical orientation of legal scholarship [which] makes feasibility an important issue’.30 Instead, the possibility for success should be considered in research that identifies and advocates the need for change; otherwise, ‘the relevance [of such research] to legal practise will be severely limited’.31 This includes recommendations for potential improvements to existing law, the creation of new law, or changes to legal interpretation.32 As Islamic legal research that seeks to analyse empirical findings against established Hanaf¯ı legal principles, this study utilises a normative legal framework to determine what consent-seeking practices ‘ought’ to be in the Pashtun context of KPK. At this point, it is evident that validly conducted Islamic legal research and legal research that employs a normative framework are not incompatible categorisations in the context of this study. Specifically, Hanaf¯ı legal principles on marriage consent are ‘explicitly stated’ positive laws that provide an internal normative framework against which my empirical findings on cultural practice can be evaluated. I argue that the principles of Hanaf¯ı law also operate as an ‘existing normative setting’ from which any ‘solution’ to the research questions can be articulated. While it may be argued that divine religious laws do not comply with Smits’ description of ‘another jurisdiction’ as an existing normative setting, this is where the nature of this research as first and foremost, Islamic legal research, is important to understand. As Smits explains, legal science as an academic discipline should ‘try to create knowledge that is to some extent universal (being of importance beyond the national level)’.33 This universal character cannot stem from ‘rules’, and must stem from arguments, as universality that stems from rules ‘mistakenly assumes that there is a shared understanding of what these rules mean at the European level’.34 Yet, there is a greater aspect of universality to rules in Islam, in that Muslims must adhere to the divine legal principles of their religion, to the extent that customs and cultural norms must be discarded in every culture if they do not accord with shar¯ı‘a. Following from this restricted role of culture, the ability to investigate and analyse religious legal principles across Muslim

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cultures suggests an ability to achieve universality from an Islamic legal perspective—albeit a ‘universality’ that is limited to the Muslim world. In addition to these evident similarities, a further parallel exists between Islamic and normative legal research. Zahraa contends that, ‘Muslim reality must always aspire for (i.e., Muslims should try their best to achieve) as total compliance’ with true shar¯ı‘a as possible, and that this requirement reflects the ‘aspirative nature’ of Islamic law.35 I argue that this ‘aspirative’ nature of Islamic legal research echoes the encouragement to form normative judgements in an attempt to answer the ‘ought’ question in normative legal research.36 Both the merging of law and practice in an aspirative Islamic legal sense and the question of what ‘ought’ to be in a normative legal sense require a researcher to consider the implications of their findings on law and potential reform. However, unlike normative legal research undertaken in a European context, this study embodies certain characteristics that I, as a researcher undertaking any type of Islamic research, must consider. According to Muslims’ beliefs, Islam is a God-revealed religion—a concept which entails the following characteristics: (1) Its primary sources (the Qur’an and Sunnah) are the highest primary sources and, therefore, possess supreme character and authority; (2) Other sources that are based on human reason are secondary in the sense that principles or rules or rulings that are extracted based on human reason should not contradict any provision in the primary sources. If they contradict a provision in the primary sources, the latter prevails taking into account the settled rules and principles of Islamic methodology; (3) Authenticated divine sources are (or are ab initio presumed to be) free of errors, whereas human sources might be fallible except those which by their very nature are highly credible; (4) The Islamic primary sources form the framework, which outlines the general doctrines and principles, and in certain situations detailed rules and rulings, based on which the corpus of the detailed Islamic rulings can be formulated; (5) Based on the very nature of human beings, changeability forms an indispensable norm that has been emphasised by the divine sources and re-iterated by jurisprudence scholars.37

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Islamic research that utilises modern research methods must embody these characteristics in order to retain its nature as ‘Islamic’ research.38 However, from an Islamic legal perspective, these characteristics do not operate alongside the normative legal aspects of the study, but above them. It is therefore important to recognise the nature of this work as, first and foremost, research that takes into account the characteristics and methodology of valid Islamic legal research. The next section discusses the particular qualitative methodology best suited to undertake this empirical normative research.

The Methodology Question A qualitative research methodology was used in this study, which is defined as research that considers, ‘the meanings and interpretation of social phenomena and social processes in the particular contexts in which they occur’.39 As norms are ‘intangible’ aspects of culture, qualitative methodologies are employed to obtain ‘culturally specific information about the values, opinions, behaviours, and social contexts of particular populations’.40 In contrast, quantitative research methods yield numerical results, which are not as effective for establishing the reasons why intangible aspects of culture exist within a particular group.41 Quantitative research is often criticised as being a ‘positivist view of facts [that] leaves no place for participants as agents’.42 As a result, I chose a qualitative methodology to examine the attitudes and experiences of Pashtuns as agents of their culture.43 Simic contends that, [s]ome of the main advantages of qualitative interviews are that information on motivations and opinions can be explored that are not easily obtained through quantitative techniques; information not previously thought about can be uncovered; issues can be explored deeply and can be more clearly defined; and personal or sensitive information can be more easily tackled.44

The most common methods of qualitative research are participant observation, in-depth interviews, and focus groups.45 In this study,

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I undertook semi-structured in-depth interviews as the most effective method for exploring the unseen aspects of human life, such as cultural norms, which influence the attitudes and beliefs of individuals within a particular group.46 This kind of interview was also ideal for exploring both the wider Pashtun context, as well as the individual consent-seeking experiences of the interviewees.47 The decision to employ this method was quite simple in the end. For one, in-depth interviewing was arguably the most common method used to explore Pashtun attitudes and norms in extant scholarship.48 It subsequently became clear that Pashtun culture was most compatible with interviewing, as it allowed the participant to explain their experiences in a respectful and unhurried manner. In a culture where respect is paramount, this method best suited the cultural norms of the participants involved. The second reason for this choice of method was the realisation that some of the participants in KPK were likely to be illiterate. As recently as 2019–2020, the combined literacy rate of both genders in KPK was approximately 55%.49 According to an earlier survey conducted in 2018–2019, the literacy rate of women in KPK was quantified at 36%, with well above 5 million females being illiterate in the province at the time.50 For illiterate participants, written methods of data collection can be ‘disempowering’ as they require reliance upon the ‘superior’ literate researcher.51 Verbal interviews were therefore more appropriate for the collection of data, and the ‘conversational and informal’ nature of semistructured interviews allowed participants to be more comfortable than they may have been in a formal, or unfamiliar, setting.52 The comfort that can be engendered in this type of interview was also expressed in existing research on women, sensitive issues, and cultural norms.53 All of these reasons together strongly justified the choice of method for Pashtun participants.

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Placement of the Researcher If I am being self-aware, my own Pashtun background was the catalyst for undertaking this research into the consent-seeking process among Pashtuns. Yet, with this background came the risk of researcher bias—the notion that such a personal connection could affect the collection and interpretation of data, irrespective of the methodology employed. You’ve been here, you’ve walked on these roads yourself, you’ve seen how much they respect the law [laughs]. The traffic police has stopped you with a signal, and we still head straight! [laughs]. Nufail (30-39 yrs)

If recognised and kept within the boundaries of objective research, personal context, knowledge, and experience can enrich the research process.54 However, in the conduct of this study, I was neither a complete insider, nor outsider, to both the culture being examined and the Pashtun interviewees.55 Although the ‘insider–outsider’ has personal knowledge and experiences of the cultural attitudes, values, beliefs, ideals, practices, and norms of their participants, they are also removed to some extent.56 In this case, although I shared the same culture and spoke the same language, I was born and raised in Australia, while all of the interviewees were born and raised in KPK. This included the Australian Pashtuns, all of whom migrated to Australia after being married to their spouses in KPK. So even though I was also Pashtun in language and culture, the different social and geographic context of my cultural experiences rendered me an outsider in a very real way. Pitman contends that being an insider–outsider can be a distinct advantage, as the researcher is likely to be ‘more able to identify the key players, power differentials, differences, and dynamics that exist within the research domain, which are likely to be ‘unseen’ by insiderresearchers’.57 However, a constantly reflective approach is imperative to prevent personal bias from compromising researcher objectivity.58 Prior to commencing research, and throughout the data collection and analysis phases, I addressed potential bias in the process of reflective writing and through frequent discussions with my research team. At the outset, I recognised that I held a personal assumption that would

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require constant reflection throughout the research process. This was the notion that, due to the patriarchal nature of the culture, Pashtun women alone were affected by cultural norms and expectations that may not reflect religious principles. During the literature review phase, this bias was corroborated when existing research indicated that Pashtun culture was patrilineal, patriarchal, and exhibited stronger masculinity than femininity as a culture. However, I was challenged later during the data analysis phase, when the findings seemed to suggest that unmarried Pashtuns are subject to cultural norms and expectations, irrespective of gender. This proved the importance of staying alive to potential biases that could affect my objectivity, while also respecting the culture that I shared with my interviewees. Looking back, there is no doubt that the insider–outsider experience delivered many advantages to the research, as well as some challenges. The main challenge was ensuring reflexivity throughout the research process. The reflexive researcher recognises their ‘knowledgeable’ position in data collection (i.e., their possible influence on participants), as well as their own significance in the interpretation of data.59 Here, it was extremely important that my social and academic background did not give rise to a power differential in the interviews. Also, it was imperative that none of the interviewees viewed me as an outsider, trying to ‘save’ them from their culture, which was not the intent in any way. As explained by Aamir Jamal, the simple fact that a Pashtun was raised or educated in the West can lead to the suspicion that they are ‘influenced’ by Western culture and conduct research for criticism alone.60 Negation and acknowledgement of privilege, particularly where I could be perceived as academically superior or unnecessarily critical of Pashtuns and Pashtun culture, were crucial to ensuring the interviewees’ trust and comfort.61 As an insider–outsider, this is where the ‘outsider’ aspect could have affected the research process negatively, but was where the ‘insider’ aspect manifested most usefully. For example, I was initially concerned that participants would not be forthcoming in their responses, for fear of being judged by another member of their shared culture. Yet, the quotes above show how the existence of a shared culture seemed to allow for freer discussion in the interviews, even in terms of criticism. Interviewees rarely stopped to explain cultural practices and nuances, and

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personal anecdotes were comfortably recounted in conversation. That I could speak and understand Pashto was considered favourably, particularly by the interviewees in KPK, and these shared attributes seemed to engender trust and comfort in the interviewees. On the other hand, this cultural connectedness to the participants also made some conversations difficult to begin. The reader may have noticed that this study focuses on consent-seeking prior to marriage, but does not delve beyond, into marriage itself. In other words, post-marriage issues were not discussed in the interviews. The reason for this was twofold. First, I was extremely interested in exploring the kind of consent-seeking that was religiously envisaged between Muslim parents and children, particularly fathers and daughters. The second reason stemmed from Pashtun culture alone. The idea of discussing intra-marriage issues with an elder—the intimate details of their marriage—was extremely uncomfortable, and virtually impossible, for me as an unmarried young woman. This is where the cultural norms of modesty, shyness, and shame were evident in me personally and should indicate the strength of culture on the lives of those who identify as Pashtun, including myself. Subsequently, the ethical and sensitive conduct of research was necessary throughout the data collection phase. The primary issue of sensitivity arose from the strong Pashtun cultural norms of modesty and shame. Certain questions could not be asked, even though they related directly to the research focus. For example, virginity dictates whether consent must be verbal in the Hanaf¯ı school of thought. However, it was impossible for me to ask the Pashtun participants if they were virgins, even for the sake of academic research. Given that all of the interviewees said they had only been married once, a question that explicitly referenced virginity may have implied that the interviewee could have engaged in pre-marital sex. Questions of such a personal and culturally insensitive nature would likely have offended the participants, jeopardising the ability to collect data for this research. Due to this potential sensitivity, and the fact that none of the interviewees voluntarily disclosed their virginity, I assumed that all of the interviewees were virgins for purpose of this research.

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It is important to note that, as an unmarried young woman, such questions would also have been deemed shameless and would have negatively impacted upon my reputation as the daughter of Pashtun parents. While further sensitivities did not arise in this research, the prospect was canvassed fully in the ethics process of the study. The next section looks at the sampling processes used to produce the final participant sample, including the participants’ characteristics, the recruitment method, and briefly recounts my experience with interviewing Pashtuns.

Finding the Participants To investigate the cultural attitudes and beliefs of Pashtun Muslims on consent-seeking for marriage, a purposive sampling method was employed to identify and recruit interviewees. A ‘purposive sample’ is characterised as a type of non-probability sampling and entails the ‘deliberate seeking out of participants’ with specific characteristics necessary to the study,62 who can ‘provide the greatest insight’ to investigation of the research question.63 This form of sampling is also called ‘judgement’ sampling, due to its reliance upon the judgement of the researcher to identify and choose all of the participants.64 As the participants in this study were deliberately selected on the basis of having specific characteristics, the type of purposive sampling employed was ‘homogenous’ purposive sampling, which entails the selection of participants who share a specific characteristic or trait, such as a particular culture or specific life experience.65 The participants were identified on the basis of two specific characteristics. The first was Pashtun ethnicity. This characteristic was integral to ascertaining Pashtun attitudes and beliefs on consent-seeking practices. Ethnicity was narrowed to Pashtuns from KPK in order to limit legal analysis to one jurisdiction and to engender greater homogeneity in the research sample. In addition to Pashtun participants in KPK, I was later required to include Pashtuns from Australia in the study as well. Although I had originally intended to conduct all interviews face-toface with Pashtuns in KPK, security concerns were raised when I began

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the process of organising travel, and approval to undertake interviews in KPK was retracted. Advice stated that only telephone interviews with participants in KPK would be permissible. Keeping the research embedded in the geographical context of KPK was incredibly important to investigating Pashtun consent-seeking without the influence of another culture. I subsequently sought to determine whether 25 telephone interviews could be secured with participants in KPK; however, it was difficult to organise telephone interviews with the desired number of participants at such short notice. Following lengthy discussions with my research team, I decided that Pashtuns from Australia would need to be included in the research sample. However, to keep the focus on consent-seeking in the Pashtun context of KPK, the Australian Pashtuns needed to have been married in KPK and to have migrated to Australia after marriage. The research sample ultimately consisted of thirteen (13) Pashtuns in KPK and eighteen (18) Australian Pashtuns. The second characteristic for the identification of participants was marital status. Married Pashtuns were needed to obtain data on personal consent-seeking experiences which had resulted in the successful contracting of marriage. Although unmarried Pashtuns could also have recounted personal consent-seeking experiences, only married Pashtuns could recount whether their marriages were contracted with consent— and the kind of consent they had given. This was integral to establishing the prevalence of non-consensual marriage, and the form of consent, within the research sample. To find participants for this study, I identified a small number of potential participants from an existing social network of Pashtuns living in Australia (who had migrated from Khyber Pakhtunkhwa). These participants were initially approached through familiar face-toface contact and introduced contact; these methods were ideal as both naturally facilitated ‘snowball’ sampling. The ‘nominated’ or ‘snowball’ method is commonly used to identify participants in purposive sampling, which involves the researcher finding a ‘good’ participant, who subsequently refers other potential participants to the researcher for the study.66 This method is especially useful where participants ‘may not volunteer or respond to a notice advertising

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for participants’—and where trust plays a role in successfully recruiting participants.67 The snowballing method was perfect for circumventing the cultural suspicion of strangers and protection of established social relationships: Pashtun society maintains social links over large distances, well beyond immediate neighbourhoods … a mutually recognised kinship link between two Pashtuns means they will share associations and provide support to one another, both materially and in defence of life.68

When a trust relationship stemmed from the establishment of an existing relationship (‘she [the researcher] is the daughter of X, who is the son of Y’), then initial face-to-face or telephone contact could occur. Four interviewees were successfully recruited to participate in the initial interviews. Two declined and one potential participant never responded after initial contact. Upon the conclusion of interviews with the initial participants, I employed the snowball method and asked whether the participants knew any other married Pashtuns from KPK who would potentially participate in the study. The majority of the remaining interviewees were identified from snowballing that occurred after these initial interviews. However, the lack of geographic proximity, the ability to participate in a telephone interview, and the requisite establishment of trust relationships meant that the hardest participants to recruit were Pashtuns living in Khyber Pakhtunkhwa. For this reason, the vast majority of these interviewees were referred by other participants. This was particularly useful in the context of Pashtun culture, given that the referring participants effectively established a trust relationship between these participants and myself prior to first contact being made by telephone. Interestingly, qualitative research can also sometimes require expansion of a research sample when new facts or phenomena arise in the initial phases of data collection.69 This manifested during the data collection phase, when I realised that the consent-seeking attitudes and beliefs of Pashtun women—who were my initial focus—were intimately related to their relationships with men (i.e., fathers, grandfathers, and brothers). It

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became clear to me that the experiences of Pashtun men would be invaluable to any research on Pashtun consent-seeking. Male involvement in Pashtun-related research is rare, despite its potential to effect change and realise social justice when privilege is questioned by members of the privileged group—for example, when patriarchal Pashtun attitudes and norms are questioned by Pashtun men.70 In this study, men as fathers were crucial to determining Pashtun attitudes on consent-seeking, and as sons, allowed the personal consent experiences of Pashtun males to be compared directly with those of Pashtun females. Following this realisation, I deliberately expanded the research sample to include Pashtun men and contacted existing female interviewees to find new male participants. This was necessary due to Pashtun cultural norms, such as modesty and gender segregation among unrelated Pashtuns, which made cold contact with Pashtun men difficult (and even culturally improper) to undertake. The research sample ultimately consisted of eighteen (18) Pashtun women and thirteen (13) Pashtun men. As with the female participants, the male participants were also deliberately chosen on the basis of their culture and marital status. Most significantly, the snowballing method allowed me to interview participants from urban and village backgrounds, as well as far tribal backgrounds (including KPK-F Chamtaara, AUS-F Sparlay, AUS-M Kaihan, and AUS-M Jahangir). As I did not know any Pashtuns from far tribal backgrounds personally, these were the hardest participants to identify, although arguably the most valuable to ensuring a purposive research sample. As a result, this method of finding participants was especially necessary to recruit participants from far tribal backgrounds, who were otherwise unknown and largely inaccessible to me. It also allowed for the recruitment of an ‘information rich’ interviewee,71 who was otherwise inaccessible to me: a Pashtun religious leader (AUS-M Mirwais) who was referred and contacted for interview by another male interviewee. In the end, the research sample was ultimately made up of thirty-one (31) interviewees. For ease of analysis, the final sample was broken down into the demographic categories of KPK men (KPK-M), KPK women (KPK-F), Australian Pashtun men (AUS-M), and Australian Pashtun women (AUS-F), as shown in Table 2.1.

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Table 2.1 Demographic (and main characteristic) breakdown of research sample Interviewee (pseudonym)

Arranged or love?

Above or below 20 Y/O (at marriage)

Arranged

Teenager (16)

Arranged

25+

Arranged

Teenager (16)

Arranged Arranged Arranged Arranged Arranged Arranged

30+ 25+ Teenager (17) 20+ Teenager (19) Teenager (18)

Arranged Love

20 + 20 +

Consented Consented Consented Consented Consented Consented Consented Did not consent Consented Consented

Arranged Arranged Arranged Arranged Arranged Arranged Arranged Arranged

20 + 20 + 25 + 20 + 20 + 20 + 25 + 20+

Arranged Arranged

20+ 25+

Arranged Arranged

30+ 25+

40–49 60–69 50–59

Consented Did not consent Consented Consented Consented

Arranged Arranged Arranged

30+ ~25+ 30+

40–49

Consented

Love

25+

Age

Consented?

60–69

Did not consent Did not consent Did not consent Consented Consented Consented Consented Consented Did not consent Consented Consented

KPK-F Chamtaara KPK-F Farangiz

60–69

KPK-F Storai

30–39

KPK-F Zarlashta KPK-F Kontara KPK-F Fakhri KPK-F Zala AUS-F Shinogai AUS-F Sparlay

50–59 40–49 20–29 20–29 30–39 20–29

AUS-F Sangina AUS-F Benafsha AUS-F Huma AUS-F Parkha AUS-F Angeza AUS-F Begum AUS-F Helai AUS-F Jabeen AUS-F Uzma KPK-M Arman

20–29 40–49

KPK-M Nufail KPK-M Asfandyar KPK-M Hukam KPK-M Rangeen KPK-M Gawhar AUS-M Kaihan AUS-M Awalmir AUS-M Khushdil

40–49 20–29 30–39 40–49 20–29 40–49 30–39 40–49 30–39 40–49 60–69 40–49

(continued)

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Table 2.1 (continued) Interviewee (pseudonym) AUS-M Ikhtiar AUS-M Amail AUS-M Mirwais AUS-M Jahangir

Age

Consented?

Arranged or love?

30–39 40–49 50–59 30–39

Consented Consented Consented Consented

Arranged Arranged Arranged Arranged

Above or below 20 Y/O (at marriage) 25+ 25+ ~25+ 20+

Doing Interviews with Pashtuns Fontana and Frey explain that, as researchers, ‘we cannot lift the results of interviewing out of the contexts in which they were gathered and claim them as objective data with no strings attached’.72 When interviewees were identified as willing to participate, the location and time of the interview were decided according to their wishes. Sixteen of the eighteen face-to-face interviews were conducted at the interviewees’ homes, one at my home, and one at the interviewees’ workplace. All the telephone interviews took place while both I and the interviewees were at home. That almost all of the face-to-face interviews took place at the interviewees’ homes speaks to the Pashtunwali requirement for melmastya (‘hospitality’). Benson and Siddiqui explain that, ‘Pashtuns take great pride in their melmastya tradition, which ensures respect, care and hospitality for any visitor’.73 The two face-to-face interviews that were not conducted at the interviewees’ homes were due to pressing commitments (childcare and work). Both were busy mothers.

Before the Interview: A Pashtun Feast When I arrived at the interviewees’ homes, it was common to be greeted by members of the interviewees’ family, and food served before the interview began. While it often felt gluttonous to me, this part of the interview process was extremely important in the context of Pashtun culture. We are not a people who ‘get down to business’ in any sense—a one-hour interaction often takes four of five hours with a Pashtun. Before

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beginning the formalities of the interview, conversation (gup shup) was had over a Pashtun feast. Such a feast often includes a combination of savouries (pastry samosas, spring rolls, and fried South Asian potato and vegetable fritters called pakoras), sweets (cakes, biscuits, and traditional rice and vermicelli desserts known as kheer and seviyan), and milky sweet, black tea (chai) is mandatory. Likewise, I performed this same ritual of hospitality for the sole interview conducted at my home (with sweets provided in advance by my mother). Pre-interview conversation always included reciprocal asking after family, which often led to a discussion on why the research was being conducted, and what I wanted to do with my future in academia. While those interviewed over the phone could not engage in the same cultural reception, conversation made up a large part of the pre-interview process for them too. It was clear that the interviewees wanted to know what I intended to do with the research, and their contributions to it. These questions were answered in a straightforward manner, and the interviewees seemed quite happy (even excited) upon hearing about the significance of their contribution to the research. Interviews were conducted in English with the Australian Pashtun interviewees and in Pashto with the interviewees in KPK.

The Interview The interview itself was simple and straightforward to ensure that the interviewees were not confused or intimidated by the process. Anonymity and confidentiality were covered in detail, although some interviewees insisted that their names could be published in the research. In these instances, I had to explain that doing so would jeopardise the ethical conduct of research, which was understood and accepted by those interviewees. The specific method of data collection and the use of the recordings were then explained. Audio recording was chosen because this method allowed me to focus on the ‘topic and the dynamics’ of the interview.74 Interviewees were assured that the recordings would not be disseminated in any way and would only be used during the transcription and

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analysis phases of research. When it was clear that the interviewee was comfortable, and consent obtained formally, the interview began. All of the participants were immediately allocated a pseudonym when the audio recordings were transferred for transcription and analysis. The pseudonyms were Pashto names that I chose from cultural stories, as it was extremely important to me that my interviewees retained a human voice: I want to give them names. I want them to be people – not tags. I want them to be identified with for the good and bad. I want the law to be factual – but I want the people to be warm and human. They are why I am doing this.75

I allocated pseudonyms to each interviewee as follows (Table 2.2). Each interview took between 1 and 1.5 hours; however, the overall time spent with the interviewees was much longer. The opening question was always, ‘So tell me about your marriage – how did it come about?’ This question was an incredibly effective opening to the interviews, as many of the interviewees enjoyed recounting the story of their marriage. Being an important aspect of Pashtun life, the interviewees did not have much trouble understanding the research area (i.e., consent-seeking for marriage). Undoubtedly, this contributed to the general smoothness of the interview process.

After the Interview: A Pashtun Interrogation (on Marriage) Overall, the interviewees seemed to enjoy the interview experience; many marvelled that they had never thought about major aspects of Pashtun marriage until the interview. The male interviewees were just as enthusiastic as the female interviewees, if not more so. They seemed happy to give their opinions on Pashtun culture, and many continued the discussion long after the interviews had concluded. The Pashtun women also debriefed at length post-interview, often to ask about the religious aspects

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Table 2.2 List of interviewee pseudonyms (with Pashto name meanings) Interviewee code

Pashto pseudonym

PAKF01 PAKF02 PAKF03 PAKF04 PAKF05 PAKF06 PAKF07 AUSF01 AUSF02 AUSF03 AUSF04 AUSF05 AUSF06

Chamtaara Farangiz Storai Zarlashta Kontara Fakhri Zala Shinogai Sparlay Sangina Benafsha Huma Parkha

AUSF07 AUSF08 NZF09 AUSF10 AUSF11 PAKM01 PAKM02 PAKM03 PAKM04 PAKM05 PAKM06 AUSM01 AUSM02 AUSM03 AUSM04 AUSM05 AUSM06 AUSM07

Angeza Begum Helai Jabeen Uzma Arman Nufail Asfandyar Hukam Rangeen Gawhar Kaihan Awalmir Khushdil Ikhtiar Amail Mirwais Jahangir

Pseudonym meaning in Pashto A violin Female character in Shahnameh Star A beautiful, golden branch Dove Glory Shininess or brightness One with green eyes Spring Politeness A flower (Violet) Phoenix Dew; tiny droplets of water falling at night Reason; logic Lady of rank Swan Forehead; brow Greatest; magnificent Hope Gracious Persian character in Shahnameh Order Coloured Gem; jewel; essence Solar system; universe Chief; leader Happy of heart Authority; opinion; free will Necklace Noble ruler Conqueror

of the issues discussed. Many interviewees also began discussing marriage with me personally. Questions were asked about my marital status and my intent to marry. Some even cautioned me on being too ‘picky’ in marriage. This is a common warning given to educated women in Pashtun culture, who are perceived as always wanting someone ‘better’ in marriage. While exasperating at times (I had heard these exact sentences from my mother for years), these post-interview conversations were a

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warm and often hilarious conclusion to the interview experience for both parties.

After the Interviews: Transcription and Analysis Following the transcription and organisation of the interviews, data analysis was undertaken in three phases. The research sample was broken into four demographic groups for data analysis, which was crucial to undertaking a comparative analysis. These groups were Australian Pashtun women (AUS-F), women in KPK (KPK-F), Australian Pashtun men (AUS-M), and men in KPK (KPK-M). The first phase of data analysis commenced soon after the first interviews were undertaken and involved intensive reading of the interview transcripts for the purpose of generating initial open codes, without the use of any coding software. Open coding entails the breaking down and grouping of data into categories, or units of meaning, ‘because they share some characteristic – the beginning of a pattern’.76 This initial phase was undertaken manually and involved note-taking as a way of recording questions that arose in my mind, organising data against existing literature and legal principles, and identifying preliminary codes. Most importantly, this first phase was a starting point to deeper analysis and primarily allowed me to familiarise myself with the data as much as possible. However, it was the second phase of data analysis which yielded the greatest ability to compare the findings between the demographic groups. Numerous similarities began to manifest across the interviewee demographic groups—and personal experiences began to indicate the existence of shared cultural attitudes and beliefs among the interviewees. However, important differences emerged during this phase as well. Separate codes had to be generated for the interviewees’ experiences with guardians, as the experiences of the genders differed massively in this respect. It was also clear that personal opinions between interviewees in Australia and those in KPK differed from one another—and was likely attributable to having left the culture in which they were married. These comparative analysis findings were incredibly useful in the third phase of data analysis.

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As the second phase of data analysis uncovered numerous similarities in the personal experiences of the interviewees (as well as their opinions to a great extent), it became clear to me that data analysis on the basis of gender demographics yielded very similar evaluations for each demographic. The findings indicated that almost all of the interviewees consented to their marriages, and the breakdown was almost repeated for each subsequent demographic analysed. Thus, although this second phase of analysis was extremely useful for coding the data for either gender, and subsequently either location (Australian interviewee or KPK interviewee), it did not allow for deeper thematic data analysis. Rather, this phase concentrated on the differences and similarities between the four demographic categories, in terms of both their experiences and opinions. As a result, the third phase involved deeper thematic analysis of the data. This phase utilised the demographic breakdown undertaken in the second phase; however, the focus was moved from comparison within the sample, to evaluating the findings against Hanaf¯ı legal principles. Unlike the second phase, the third phase did not yield as much comparison between the demographic groups. However, this phase was crucial to analysing the findings per the requirements of normative legal research. As a result, the data was re-grouped and categorised under twelve major themes identified in the literature, as well as the interviewees’ own opinions of what ‘should’ occur. For example, the interviewees’ personal consent-seeking experiences were analysed against the three ‘elements’ of consent-seeking that I had derived from Hanaf¯ı jurisprudence during the literature review, and then coded against themes derived from existing legal principles—including the interviewees’ age at the time of consent (to determine whether they were minors or adult), previous marital status (to determine form of consent necessary from the particular interviewee), whether consent was obtained, the form of consent obtained, and the type of verbal consent obtained. I have used the twelve themes to present the findings in Part II of this book.

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The Use of Percentages: ‘Seeing’ the Findings An important aspect of the second and third phases of data analysis was breaking down elements/occurrences of the findings into percentages, to provide a frequency breakdown of the element/occurrence within the research sample as a whole, as well as the frequency within each demographic group. Margaret Sandelowski explains that, ‘numbers intended primarily to document and verify will also inevitably enable researchers to extract more meaning from qualitative data’.77 She explains the usefulness of numbers in qualitative research as, … essential to ensuring descriptive (getting the “facts” of the case right), interpretive (getting participants’ interpretations of events right), and/or theoretical (developing an interpretation that fits these facts) validity. Counting assures the reader that researchers have accounted for all and have not “discount[ed]” any of their data, thereby avoiding the major pitfalls in qualitative analysis. These pitfalls include: (a) overweighting dramatic or vivid accounts of events; (b) underweighting data that do not conform to the pattern the researcher wants to find (also called the “holistic fallacy”]); and, (c) regressing to the mean – smoothing out or averaging out – or otherwise cleaning up the contradictions and messiness of human accounts and lives. “Playing the numbers game” can be a useful corrective and is an element of the audit trail by which researchers can document their procedural and analytic moves. (references omitted)78

In this book, the consent experiences of the interviewees are included as percentages with respect to each demographic group. For example, the findings indicate that approximately ‘91 percent’ of the Australian Pashtun women consented to marriage verbally, while only ‘57 percent’ of women in Khyber Pakhtunkhwa did so. This was reflected in the consent breakdown between the male interviewees in Australia and those in KPK—which allowed for deeper analysis on the potential impact of the interviewees’ backgrounds on their consent-seeking experiences. In the context of this book, the inclusion of percentages provides a guide to the reader to understand the proportion of interviewees affected by each specific element/occurrence within this particular research sample. It is imperative to note that I am not claiming these percentages as

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representative of the entirety of Khyber Pakhtunkhwa in any way. The percentages included throughout the rest of this book only provide a frequency breakdown for the reader to engage with the meaning of the empirical findings and to ‘see’ the range present within this research sample, without being generalisable to a wider population.

Research Challenges and Limitations So far, this chapter has looked at both the reasoning and experience of undertaking qualitative empirical research. While many factors led to the justification for this type of research, it was not without its limitations or challenges. The first limitation was the research sample size. Although saturation was reached after nine interviews in data analysis, there is no doubt that a larger sample size would have allowed for further analysis and comparison of Pashtun attitudes and beliefs. Unfortunately, the time and resource constraints of the doctoral study on which this book is based did not allow for a greater sample. However, this provides a great opportunity for future research. A larger sample size with greater representation from both genders, and with greater heterogeneity in terms of socio-economic/educational backgrounds, as well as their geographical spread across Khyber Pakhtunkhwa, would imbue the findings with greater richness. Perhaps more significantly, the impact of socio-economic and educational background on the prevalence of cultural norms and practices could be ascertained with greater certainty. The unequal number of male and female interviewees was another limitation, as gender parity would have allowed for equal representation in the research sample. Although I actively attempted to avoid unequal gender representation, the final sample effectively represents those Pashtuns who were willing to undertake an in-depth interview. Seven potential interviewees chose not to participate after initially agreeing to an interview. This could not be avoided, given that participation was entirely voluntary. However, I acknowledge that greater representation of Pashtuns from various socio-economic and educational backgrounds, as well as equal representation of male and female interviewees, would have

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ultimately strengthened the richness of data and the subsequent findings of this study. My status as an insider–outsider to my interviewees constitutes another limitation of this study. As explained earlier, the existence of a shared culture led to some self-censorship on my part in the interviews. I simply did not ask culturally inappropriate and insensitive questions in the interviews, due to the offence it may have caused—as well as the impact it would have had on both my reputation and my parents’ reputation, with the interviewees. Consequently, despite concerted efforts, it is possible that my own Pashtun background may have influenced the interpretation and analysis of data. It is hoped, through the presentation of data in this book, that this was not the case. Perhaps the most significant limitation arose from my personal reliance upon religious sources published in the English language. Only credible English translations of religious texts were used, and therefore, the breadth of Arabic sources was largely inaccessible to me. My reliance upon English sources was a source of great personal frustration in the research process, as I knew that valuable works and quotes were lost to me. However, this limitation was circumvented to some extent with the help of my research team, through whom I accessed certain Arabic sources, as well as through the extent of English sources canvassed for the purpose of this research. Translation challenges emerged as the final limitation of this study. Given that interviewees respond verbally in interviews, it was necessary to transcribe the interviews conducted with interviewees in KPK to written English. Translation was the first step in this process for the interviews in Pashto. Although I could speak and understand the language, an English equivalent was difficult to find for some Pashto words, as the two languages do not have ‘direct lexical equivalence’ in translation.79 Though rare, I endeavoured to provide a faithful interpretation in such cases, in terms of meaning and the context of the interviewees’ response.

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Conclusion This chapter explored the methodology employed to empirically investigate Pashtun consent-seeking practices from a Hanaf¯ı legal perspective. The rationale and process of designing the research, collecting data, finding the interviewees, the process of undertaking data collection and analysis, and the limitations of the study were all examined in this chapter. It is evident that the Pashtun cultural context strongly influenced the research process throughout. Part II of this book contains the literature review. The next chapter presents an in-depth examination of consent in Hanaf¯ı legal doctrine, including the breakdown of consent-seeking into three ‘elements’ derived from Hanaf¯ı law and jurisprudence (i.e., consent, sh¯ur¯a/consultation, and wal¯ı/guardian). Chapter 4 then reviews the Pashtun cultural context of Khyber Pakhtunkhwa generally and examines existing scholarship on marriage in Pashtun culture, followed by a contextualisation of Pashtun marriage from a secular legal perspective.

Notes 1. Mahdi Zahraa, ‘Unique Islamic Law Methodology and the Validity of Modern Legal and Social Science Research Methods for Islamic Research’ (2003) 18(3/4) Arab Law Quarterly 215, 245. 2. Ibid. 3. Zahraa, above n 1, 220. 4. Zahraa, above n 1, 221. 5. Zahraa, above n 1, 222. 6. Zahraa, above n 1, 224. 7. Zahraa, above n 1, 216. 8. Zahraa, above n 1, 217; see generally Wael B Hallaq, An Introduction to Islamic Law (Cambridge University Press, 2009). 9. Zahraa, above n 1, 217. 10. Zahraa, above n 1, 217. 11. Zahraa, above n 1, 219. 12. Zahraa, above n 1, 220.

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13. Zahraa, above n 1, 249. 14. Sanne Taekama, ‘Theoretical and Normative Frameworks for Legal Research: Putting Theory into Practise’ (2018) Law and Method 1, 2–3; Norman G Lederman and Judith S Lederman, ‘What Is a Theoretical Framework? A Practical Answer’ (2015) 26 The Journal of Science Teacher Education 593, 595. 15. Taekama, above n 14. 16. Frans L Leeuw, ‘Empirical Legal Research: The Gap Between Facts and Values and Legal Academic Training’ (2015) 11(2) Utrecht Law Review 19, 21–22. See also Jan Smits, ‘Law and Interdisciplinarity: On the Inevitable Normativity of Legal Studies’ (2014) 1(1) Critical Analysis of Law 81, for the normative character of legal scholarship: ‘Concerning the normative character of legal scholarship and legal arrangements, Smits recently said the following: “The legal discipline reflects what it is that individuals, firms, states, and other organizations ought to do, or ought to refrain from doing. Typical legal questions are thus: whether disinheriting one’s children should be permitted, whether the death penalty should be imposed for criminal offences, under which circumstances it is justified to go to war, when constitutional review should be allowed, and whether ship-wrecked sailors may eat their weakest companion if they are likely to die of starvation.” The gap between robust, empirical evidence on – for example – the deterrent effect of the death penalty or the consequences for the well-being of children, when they are disinherited, on the one hand, and the legal-normative argumentation to be in favour or against the death penalty or disinheritization, is serious.’ Like Leeuw, Taekama also believes that normative legal research naturally gives rise to the ‘ought’ question, but argues that legal scholars are not often trained to uncover this ‘implicit’ question in legal research: Taekama, above n 14, 11. 17. Taekama, above n 14, 10. 18. Taekama, above n 14, 6–7. 19. Taekama, above n 14, 7–9. 20. Taekama, above n 14, 7. 21. Taekama, above n 14, 7–8.

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22. Taekama, above n 14, 8. 23. Taekama, above n 14, 8–9. 24. Taekama, above n 14, 9; Leeuw, above n 16, 21–22; Jan Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’ (2009) 7 TICOM 45, 47. 25. Taekama, above n 14, 7. 26. Jennifer K Robbennolt, ‘Evaluating Empirical Research Methods: Using Empirical Research in Law and Policy’ (2002–2003) 81(2) Nebraska Law Review 777, 784. 27. Ivo Giesen, ‘The Use and Incorporation of Extralegal Insights in Legal Reasoning’ (2015) 11(1) Utrecht Law Review 1, 16. 28. Smits, ‘Law and Interdisciplinarity: On the Inevitable Normativity of Legal Studies’, above n 16, 82. 29. Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’, above n 24, 54–7. 30. Taekama, above n 14, 11. 31. Taekama, above n 14, 11–12. 32. Taekama, above n 16, 6–7. 33. Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’, above n 27, 57. 34. Ibid. 35. Zahraa, above n 1, 220. 36. Leeuw, above n 16, 21–22; Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’, above n 24; Taekama, above n 14, 11. 37. Zahraa, above n 1, 218–9. 38. Zahraa, above n 1, 249. 39. Maggie Sumner, ‘Qualitative Research’ in Victor Jupp (ed), The SAGE Dictionary of Social Research Methods (SAGE Publications, 2006) 249. 40. Natasha Mack et al., Qualitative Research Methods: A Data Collector’s Field Guide (Family Health International, 1 2005) 1. 41. Jeanette Garwood, ‘Quantitative Research’ in Victor Jupp (ed), The SAGE Dictionary of Social Research Methods (SAGE Publications, 2006) 250. 42. Ibid 251.

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43. Sumner, above n 39. 44. Olivera Simic, Regulation of Sexual Conduct in UN Peacekeeping Operations (Springer-Verlag, 2012) 92. 45. Mack et al., above n 40, 2. 46. Ibid. 47. Sandy Q Qu and John Dumay, ‘The Qualitative Research Interview’ (2011) 8(3) Qualitative Research in Accounting & Management 238, 240–1. 48. See Arab Naz and Hafeez-ur-Rehman, ‘Pakhtunwali versus Islam: A Comparative Analysis of Women’s Rights in Islam and Their Violation Under Pakhtunwali (Pakhtun Code of Life) in Khyber Pakhtunkhwa Pakistan’ (2011) 1(2) International Journal of Humanity and Social Sciences 22, 25; Hafiz Hifazatullah et al., ‘Attitude of Religious Concerns Towards Women Emancipation in Tehsil Takht-Bhai’ (2011) 3(3) Interdisciplinary Journal of Contemporary Research in Business 1135, 1144; Muhammad Faheem Khurshaid and Asfandyar Marwat, ‘Human Rights Violations in Swat Conflict: A Qualitative Study’ (2016) 1(1) Pakistan Journal of Peace & Conflict Studies 45, 47; and Aamir Jamal, ‘Why He Won’t Send His Daughter to School—Barriers to Girls’ Education in Northwest Pakistan: A Qualitative Delphi Study of Pashtun Men’ (2016) Sage Open Publications 1, 3–6. 49. Pakistan Bureau of Statistics, Pakistan Social and Living Standards Measurement Survey (PSLM) 2019–20 Provincial/District (July 2021) Government of Pakistan . 50. Pakistan Bureau of Statistics, Pakistan Social and Living Standards Measurement Survey (PSLM) 2018–19 National/Provincial (October 2020) Government of Pakistan . 51. Muhammad Saeed, ‘Pakhtun Men’s Perceptions of the Conditions Promoting Domestic Violence in Their Culture’ (PhD Dissertation, The University of York, 2012) 60.

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52. Victor Minichiello, Rosalie Aroni and Terrence Hays, In-depth Interviewing (Pearson Education Australia, 3rd ed, 2008) 52. 53. See Simic, above n 44, 93–6. 54. Simic, above n 44, 92. 55. Katie Kerstetter, ‘Insider, Outsider, or Somewhere in Between: The Impact of Researchers’ Identities on the Community-Based Research Process’ (2012) 27(2) Journal of Rural Social Sciences 99, 101–2. 56. James A Banks, ‘The Lives and Values of Researchers: Implications for Educating Citizens in a Multicultural Society’ (1998) 27(7) Educational Researcher 4–17 in Kerstetter, above n 2, 101. 57. Gayle E Pitman, ‘Outsider/Insider: The Politics of Shifting Identities in the Research Process’ (2002) 12 Feminism and Psychology 282–8 in Lauren J Breen, ‘The Researcher “In The Middle”: Negotiating the Insider/Outsider Dichotomy’ (2007) 19(1) The Australian Community Psychologist 163, 171. 58. Qu and Dumay, above n 47, 255; see also Nigel King and Christine Horrocks, Interviews in Qualitative Research (SAGE Publications Ltd, 2010) 35. 59. Alan Bryman and Catherine Cassell, ‘Qualitative Research in Organizations and Management: An International Journal’ (2006) 1(1) Emerald Insight 41, 46–7. 60. Aamir Jamal, ‘Engaging Men for Gender Justice: Overcoming Barriers to Girls’ Education in the Pashtun Tribes of Pakistan’ (2014) International Journal of Social Welfare 1, 4. 61. Christina M Alcalde, ‘Going Home: A Feminist Anthropologist’s Reflections on Dilemmas of Power and Positionality in the Field’ (2007) 7(2) Meridians 143. 62. Janice M Morse, ‘Purposive Sampling’ in Michael S Lewis-Beck, Alan Bryman and Tim Futing Liao (eds), The SAGE Encyclopedia of Social Science Research Methods (SAGE Publications, 2011) 885. 63. Kelly J Devers and Richard M Frankel, ‘Study Design in Qualitative Research—2: Sampling and Data Collection Strategies’ (2000) 13(2) Education for Health 263, 264–5; Arlene Fink, How to Sample in Surveys (SAGE Publications, 1995) in Ilker Etikan, Sulaiman Abubakar Musa and Rukayya Sunusi Alkassim, ‘Comparison of

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64. 65. 66. 67. 68.

69. 70. 71. 72.

73.

74.

75. 76. 77.

78. 79.

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Convenience Sampling and Purposive Sampling’ (2016) 5(1) American Journal of Theoretical and Applied Statistics 1. Etikan, Musa and Alkassim, above n 63, 2. Etikan, Musa and Alkassim, above n 63, 3. Morse, above n 62. Morse, above n 62. Armando Geller, Joseph F Harrison, and Matthew Revelle, ‘Growing Social Structure: An Empirical Multiagent Excursion into Kinship in Rural North-West Frontier Province’ (2011) 5(1) Structure and Dynamics 1, 6. Morse, above n 62. Jamal, above n 48, 1. Etikan, Musa and Alkassim, above n 63, 2–3. Andrea Fontana and James H Frey, ‘Interviewing, the Art of Science’ in Norman K Denzin and Yvonna S Lincoln (eds), Collecting and Interpreting Qualitative Materials (Sage, 1998) 663. Bruce L Benson and Zafar R Siddiqui, ‘Pashtunwali —Law for the Lawless, Defense for the Stateless’ (2014) 37 International Review of Law and Economics 108, 115. Svend Brinkmann and Steinar Kvale, Interviews: Learning the Craft of Qualitative Research Interviewing (3rd ed: Sage Publications, 2013) 204–5. From a personal notebook that I kept throughout the research process. Johnny Saldana, The Coding Manual for Qualitative Researchers (Sage Publications, 2016) 8–9. Margaret Sandelowski, ‘Real Qualitative Researchers Do Not Count: The Use of Numbers in Qualitative Research’ (2001) 24 Research in Nursing and Health 230, 231. Ibid 234. M Birbili, Translating from One Language to Another: Social Research Update (2000) University of Surrey .

Part I Marriage, Culture, and The Law

3 Marriage in Islam: Consent-Seeking in Hanaf¯ı Jurisprudence

The issue of marriage is addressed comprehensively in Islamic legal and jurisprudential texts. However, ‘marriage’ is far too vast a general subject area to be considered in its entirety in this book. This chapter subsequently focusses on literature pertaining to consent-seeking for the purpose of marriage and is further narrowed to consent-seeking vis-à-vis the doctrine that is both contextually and legally relevant to the vast majority of Pashtuns in KPK. Given that over 95% of Pashtuns in the province are adherents of the Sunni branch of Islam—the vast majority of whom identify as Hanaf¯ı Muslim—the bulk of this review is thereby restricted to an examination of consent-seeking from the perspective of the Hanaf¯ı madhhab only, for the sake of both relevance and brevity. This chapter sets out the primary legal context of the study; that is, Hanaf¯ı law and jurisprudence relevant to consent-seeking for marriage. An overview of shar¯ı‘a (Islamic law) and fiqh (jurisprudence), the derivation of legal principles, and a brief overview of the historical formation of the four Sunni schools of thought are provided as an introduction to the world of Islamic law and jurisprudence. I then delve into the explicit legal principles that exist to govern lawful and valid marriage consent in the Hanaf¯ı madhhab specifically, which includes the breakdown of Hanaf¯ı © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_3

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consent-seeking jurisprudence into what I have termed the ‘elements of consent-seeking’ throughout this book.

A Brief Overview of Islamic Law and Jurisprudence And one of His signs is that He has created for you spouses from amongst yourselves so that you might take comfort in them, and He has placed between you love and mercy. The Holy Qur’an (30:21).

Islamic scholarship, and scholarship on Islam, is incredibly wide-ranging in topic, language, and perspective. Central to this book is Islamic law (hereafter ‘shar¯ı‘a’) and jurisprudence (fiqh) pertaining to consentseeking for marriage. To help orient the reader in the notion of Hanaf¯ıspecific law, this section provides a general overview of the nature of Sunni Islamic law and its development into the doctrinal schools of thought. Islamic law (hereafter ‘shar¯ı‘a’) informs an incredibly wide range of issues in the lives of practising Muslims.1 It encompasses questions of morality and ethics, and extends to issues concerning human behaviour and etiquette. These issues include worship and rituals such as ‘the five daily prayers and the ritual purity required to perform prayers, the month of fasting, or the alms tax … issues concerning human relationships, such as marriage, divorce, inheritance, commerce, taxation, and war … [and] it extends to matters concerning proprieties of clothing, conduct between spouses, filial piety, [and] behaviour at funerals’.2 In Islamic jurisprudence prior to the nineteenth century CE, shar¯ı‘a was the practice of deriving immutable legal principles from divine sources of law.3 This divine law was derived from four sources: the Qur’an,4 the sunnah of Prophet Muhammad (compiled in collections of had¯ıth),5 ijm¯a‘ or ‘consensus of legal opinion’,6 and qiy¯as or ‘reasoning by analogy’.7 These four sources formed the basis of extensive jurisprudence within the formative schools of Islamic thought and are considered the four foundational sources of shar¯ı‘a.8 In this way, shar¯ı‘a refers to a ‘body of explicit

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revealed laws (nas. pl. nus.u¯.s) found in the primary sources of the Qur’¯an and Sunnah, which provide the subject matter of the law’.9 The nas. is ‘fixed and unchangeable and largely general, with basic principles such as “establish prayer” and “do not approach prayer whilst intoxicated”’.10 The subsequent body of legal principles derived from these sources is called ‘fiqh’.11 Fiqh denotes the process of deducing legal principles from shar¯ı‘a to address novel legal issues and also refers to the body of laws derived through its process, which are distinct to the body of laws that comprise shar¯ı‘a.12 Unlike shar¯ı‘a, fiqh ‘is flexible and changes according to the circumstances under which it is applied, and it tends to be specific’.13 The process of deducing legal laws is undertaken through independent legal reasoning (‘ijtih¯ad ) based on secondary sources including ijm¯a‘ (general consensus of the learned); qiy¯a.s (analogical reasoning); istih.s¯an (juristic preference); istis.l¯ah or mas.lah.a mursala (consideration of public interest); sadd al-dhar¯ai’ (blocking the means); istis.h¯ab (presumption of continuity); and ‘urf (customary practice).14 The development of legal theory using this interpretive methodology is known as us¯ul al-fiqh in Sunni jurisprudence. Us¯ul al-fiqh roughly translates to ‘the fundamental principles of jurisprudence’, while the term us¯ul refers to the ‘body of principles’ that are drawn upon by jurists in order to interpret the texts.15 Us¯ul al-fiqh is used to refer to the entirety of Sunni legal theory; however, Shi‘a legal theory is considered to have employed a similar methodology, despite having developed distinct to Sunni legal theory and jurisprudence.16 While fiqh refers to the human process of deriving shar¯ı‘a from the divine source-texts of the Qur’an and had¯ıth, and using the foundational methods of ijm¯a‘ and qiy¯as, it is ‘us¯ul al-fiqh’ which refers to the body of legal theory and juristic principles of interpretation that are used in the scholarly process of fiqh. As a human endeavour and an ‘academic’ discipline, neither the process nor product of fiqh can be ascribed to the divine in the way of shar¯ı‘a.17 However, although fiqh is a human process, the sources from which a mujtahid derives new legal principles remain immutable and divine.18 A full or independent mujtahid is a highly qualified legal jurist who has the authority to undertake ‘ijtih¯ad and develop legal theories, as well as derive new law from the principles

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of shar¯ı’a. The development of legal principles and derivation of new law cannot be undertaken by those lesser qualified than a mujtahid .19 According to Wael Hallaq, the process of deriving and applying substantive law as a legal methodology only became more systematic from the eighth century CE onward (or second century of Islam).20 It was during this time that the formation of the madhhab (or doctrinal ‘school of thought’) began to emerge from ‘study circles’ during the first century of Islam (between the 690s and 730s CE).21 This earlier form of education was ‘embryonic’ in nature and involved pious scholars, who were otherwise private individuals, debating religious legal issues and teaching interested students.22 This rather fluid system of personal legal schools evolved out of an ‘internal need’ for religious legal development in the century after the death of Prophet Muhammad, and rapidly precipitated the ‘systematic exposition of substantive legal doctrine’ from the 740s until approximately 800 CE, by which time substantive legal doctrine reached its most complete form.23 Methodological awareness must have been honed as a result of the teaching and robust scholarly debates in the study circles, leading to individual jurists defending their own personal conceptions of the law.24 A jurist who became distinguished for employing his particular legal methodology was often sought by students, many of whom travelled for the sole purpose of learning the legal methods and jurisprudence established by renowned jurists.25 By the middle of the tenth century, the personal legal schools that had formed around the opinions and methods of particular jurists led to the formation of legal schools as doctrinal entities; these came to operate as the source of legal authority for the Muslim ummah—an authority that exists to this day. Thus, A central feature of the doctrinal school … was the creation of an axis of authority around which an entire methodology of law was constructed. This axis was the figure of the one who became known as the founder, the leading jurist, in whose name the cumulative, collective principles of the school were propounded. Of all the leaders of the personal schools – and they were many – only four were raised to the level of “founder” of a doctrinal school: Abu Han¯ıfa, M¯alik, Sh¯afi‘¯ı and Ibn Hanbal, to list them in chronological order.26

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The reasons why these particular jurists became central figures of legal authority are subject to ongoing research and debate. In addition to becoming renowned in law, significant political and social factors also greatly influenced the formation of the doctrinal schools around central figures.27 However, attempting to explain why these certain jurists emerged as founders, and why their doctrines flourished where others failed, is its own field of historical religious scholarship as ‘even the madhhabs that turned out to be successful in the long run had uncertain beginnings’ in their initial legal development and history.28 For the purpose of this book, it is sufficient to understand that the science of us¯ul al-fiqh, and the legal methodologies specific to each school of thought, followed the organic formation of these doctrinal legal schools. The substantive formation of the four Sunni schools of thought spelled the end of the formative period of Islamic law and jurisprudence, and the works attributed to the four founders ‘became the foundational texts for the Sunni madhhabs’—thereby initiating the classical period of law in which jurists expounded upon the foundational jurisprudential texts, solidifying and consolidating legal doctrine within each school.29 It is important to note that the founders of the four Sunni schools of thought did not themselves develop the entirety of legal methodology and jurisprudence that is attributed to them. While attributing all derivation of law and creation of doctrine to the founders is a key characteristic of a doctrinal school, it is not one that is historically accurate.30 Instead, the four founders came ‘at the end of a period of legal development’ in which the positive law described in their works ‘had already been fully formed’ (i.e., the formative period).31 Founders are thereby more accurately termed ‘eponymous’ founders, in that they were as indebted to their predecessors as their followers were to them.32 Of the four major Sunni founders, there are no specific works of fiqh attributed to Ab¯u Han¯ıfa (d. 150/767) himself; rather, all of his legal opinions and methods were transmitted in the works of two distinguished students, Ab¯u Y¯usuf (d. 182/798) and Shayb¯an¯ı (d. 189/805).33 The opinions and principles attributed to Ab¯u Han¯ıfa and his successors form the basis of an exceptionally large body of Hanaf¯ı jurisprudence. Ab¯u Han¯ıfa is known for his greatest utilisation of ra’y (personal opinion) and istihs¯an (juristic preference) in the formation of legal principles,

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although qiy¯as (analogy) and ‘ijtih¯ad (independent legal reasoning) were also utilised in the Hanaf¯ı madhhab as methods of deriving shar¯ı‘a.34 The Hanaf¯ı madhhab is considered one of the most flexible and interpretive schools, and this characteristic is cited as the reason for its adoption as the predominant school of thought throughout much of South Asia, including Pakistan, following its adoption as the official madhhab of the vast Ottoman Empire.35 In contrast, M¯alik ibn Anas (d. 179/795), founder of the M¯alik¯ı madhhab, is known for his overriding reliance upon the customs of Medina (the home of Prophet Muhammad) for the formation of M¯alik¯ı legal doctrine. Scholars such as Kecia Ali and Susan Spectorsky have noted that M¯alik often justified his views with the customs prevalent in Medina, stating, ‘this is the way we [Medinans] do things’.36 Thus, if one considers the Prophetic way of life as the example for law and conduct, as Muslims believe it is, then M¯alik¯ı doctrine can be described as the most purist of the four doctrines. Although both Sh¯afi‘¯ı (d. 204/820) and Ibn Hanbal (d. 241/855), the founders of the Sh¯afi‘¯ı and Hanbal¯ı madhhabs, also relied upon the sunnah of Prophet Muhammad in their development of legal doctrine, they did not rely on Medinan custom in the way of M¯alik. Sh¯afi‘¯ı insisted that ‘doctrines be based on the Qur’an and sunnah, rather than on the reasoning (ra’y) of individual jurists’—a distinct difference between his development of legal opinion and that of Ab¯u Han¯ıfa.37 Of the four eponymous founders, Sh¯afi‘¯ı was the ‘first jurist expressly to set out a theory for legal reasoning’ (the core of which was reliance upon the sunnah).38 Sh¯afi‘¯ı doctrine is subsequently recognised for its greatest attention to legal method, and its tendency to both utilise and respond to the opinions and doctrine of the Hanaf¯ı madhhab. In contrast to the other three, the Hanbal¯ı madhhab is the smallest of the four schools, and Ibn Hanbal is perhaps the most ‘eponymous’ of the four founders. He is known for not having transmitted any legal doctrine, ‘for his entire concern was with had¯ıth and its collection’.39 The doctrine attributed to Ibn Hanbal stems primarily from records of his ‘responses’ to legal questions, which were written down by his students and other scholars.40 In the century after his death, these responses likely formed the ‘nucleus’ upon which his followers expanded to form Hanbal¯ı doctrine, and as a

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result, explicit Hanbal¯ı doctrine likely formed in ‘the generation or two after Ibn Hanbal’, as opposed to having arisen out of his own works.41 In spite of historical accuracy, it is certainly true that the bodies of law attributed to each founder have come to form the foundational jurisprudential texts from which legal principles can be identified, and legal methodology undertaken, by scholars in the Sunni madhhabs. The doctrinal schools subsequently ‘represent a fundamental feature’ of shar¯ı‘a and the earnest development of us¯ul al-fiqh, undertaken by scholars in accordance with the prevailing doctrine and method in each school, solidified differences in the following centuries.42 Unlike the previous centuries of legal development, jurists in the following tenth/eleventh centuries CE had to begin their legal careers as adherents of a particular school of thought.43 Consequently, legal and jurisprudential works from later jurists employing ‘ijtih¯ad were ‘deemed to fall within the hermeneutical contours of the school … however creative it might have been’.44 Adherence to a particular school of thought was not a matter of compulsion, in that a jurist or layperson could follow any school they desired; however, geography ultimately played a large part in determining which school the majority of a population followed. According to Hallaq, the geographical regions that came to adopt the four Sunni schools of thought respectively evolved as follows: The Hanaf¯ı school started in Iraq but quickly extended its influence eastward, to Iran (until about 1500), Central Asia and the Indian SubContinent. Later on, it was adopted as the school of choice of the Ottoman Empire. Today, traditionally Hanaf¯ı populations include those in Bangladesh, Pakistan, India, Central Asia, Iraq, Syria, Jordan, Palestine and Turkey. The M¯alik¯ı school started in the Hejaz but immediately spread to Egypt and, extensively, to Muslim Spain (until the fifteenth century) and North Africa, where it has continued to hold unrivalled sway until now. With the main exceptions of South Africa, Zanzibar and some parts of Egypt, the populations of the African continent have been traditionally of M¯alik¯ı persuasion. The Sh¯afi‘¯ı school began essentially in Egypt, but later spread to Syria (which gradually became mostly Hanaf¯ı after the sixteenth or seventeenth century), Lower Egypt, some parts of the Yemen, Malaysia and Indonesia.

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The Hanbal¯ı school, the smallest of the four, was strong in the city of Baghdad between the tenth and the thirteenth centuries, but now has a wide following in Saudi Arabia.45

It is clear that the differences between the schools of thought primarily stem from the particular legal opinions and methodology attributed to each founding jurist, and the body of jurisprudential doctrine contributed by successive mujtahids who adhered to the school. However, an exceptional amount of doctrinal difference results from the heavy jurisprudential reliance upon, and differing interpretations of, Prophetic tradition (later codified in had¯ıth literature) during the formative period. The next section provides a brief look at the differing interpretations of marriage had¯ıth specifically among the four Sunni schools of thought.

Contextualising Marriage in Sunni Islamic Law and Jurisprudence In order to derive legal principles on marriage, jurists from all schools of thought relied heavily on six major books of had¯ıth compiled in the ninth century CE.46 As a primary, divine source of shar¯ı‘a, the influence of had¯ıth literature on marriage jurisprudence cannot be understated. Each of the six major books of had¯ıth contains a Kit¯ab al-Nik¯ah (‘Book of Marriage’).47 These collections contain the numerous had¯ıth which permeate marriage jurisprudence throughout the formative and classical periods, many of which are relevant to the process of consent-seeking for marriage. These include had¯ıth in which Prophet Muhammad is quoted as saying that a previously married woman should not be given in marriage without her consultation, nor a virgin without her consent—for example, Narrated Ab¯u Huraira: The Prophet (SAW) said, “A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission.” The people asked, “O

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Allah’s Messenger (SAW)! How can we know her permission?” He said, “Her silence (indicates her permission).” [regarding a virgin].48

Another had¯ıth reports that where a woman is averse to a marriage contracted without her consent, the marriage is invalid—for example, Narrated Khans¯a bint Khidh¯am Al-Ansariya: that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah’s Messenger (SAW) and he declared that marriage invalid.49

Other reports illustrate that Prophet Muhammad specifically considered subjective personal traits, such as age and character, when deciding upon a spouse for his daughter—for example, Narrated ‘Abdullah bin Buraidah: It was narrated from ‘Abdullah bin Buraidah that his father said: “Ab¯u Bakr and ‘Umar, may Allah be pleased with them, proposed marriage to Fatimah but the Messenger of Allah said: “She is young.” Then ‘Ali proposed marriage to her and he married her to him.”50

Had¯ıth on marriage, like those above, directly informed the legal principles on consent and guardianship in the process of contracting marriage within the various schools of thought, but were often interpreted differently by the various schools in the formation of legal doctrine.51 However, while the marriage had¯ıth collectively inform lawful marriage in Islam, it is important to recognise that they do not consider every aspect of marriage in reality. Instead, there are numerous classical works which supplement the had¯ıth literature on marriage. Indeed, many of the formative and classical scholars wrote at a time when previously acceptable marriage customs were being, or had recently been, altered or eradicated by Islam. According to Wael Hallaq, marriage in Arabia was not a question of individuals, but of family.52 As marriage was a norm that involved the family unit, pre-Islamic Arabian customs influenced the discourse on marriage in formative and classical jurisprudence. As a result, further distinctions exist between the schools of thought on various aspects of marriage. Jurists, who drew upon the breadth of had¯ıth literature in

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their works, often substantiated these cultural distinctions in religion. It is therefore vital to acknowledge the influence of culture on the opinions and conclusions of jurists throughout the formative and classical periods. In terms of jurisprudential differences, Kecia Ali contends that individual juristic interpretation of had¯ıth was the primary cause of differences between the Sunni schools of thought on various issues, including the necessity to obtain consent for marriage. For example, with regard to compulsion in marriage, one had¯ıth reports that a woman who has reached majority (by way of physical maturity) may contract her own marriage, which informed the position adopted by the Hanaf¯ı madhhab.53 However, this report seems to contradict other reports vehemently prohibiting the marriage of any woman without a guardian, irrespective of majority,54 which became the recognised position of the M¯alik¯ı madhhab. Ali explains that the founder of the M¯alik¯ı madhhab, M¯alik ibn Anas, stated that marriages arranged by fathers for virgin daughters without consultation were binding upon the daughter.55 As mentioned earlier, M¯alik justified his view with the customs prevalent in Medina and included had¯ıth reflecting the accepted customary usages of the time and place in which he lived. The influence of custom upon the M¯alik¯ı madhhab is further evident in the Hanaf¯ı refusal to accept Medinan customary usage as justification for a reading of any had¯ıth. Ali contends that M¯alik¯ı works justify curtailment of the consent had¯ıth, arguing that in requiring consent from virgins, Prophet Muhammad referred only to fatherless virgins, not all virgin women. She asserts that M¯alik¯ı jurists further downplayed the had¯ıth by including reports in which the Prophet is reported to have married two of his daughters without consultation, an action deemed to fall into the exemplary rather than exceptional category of Prophetic actions. However, Ali herself cites numerous reports which indicate that Prophet Muhammad did consult his daughters in marriage by way of sh¯ur¯a (or ‘consultation’).56 Sh¯afi‘¯ı also argued the right of compulsory marriage extended to women beyond the age of majority, however, in his later works, strongly recommended that women at majority be consulted—while Ibn Hanbal did not explicitly address the matter.57 These differing interpretations of the same body of had¯ıth literature

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demonstrate the role that individual legal opinion, and legal methodology, had on the formation of the four Sunni schools of thought during the formative period—and on the subsequent development of legal doctrine within each school in the later classical period of law. In recent times, the reliance upon had¯ıth literature in the derivation of law has itself been subject to some scholarly criticism. Some scholars argue that had¯ıth, as human reports, were given undue consideration by jurists in the process of deriving law. They assert that had¯ıth which ratified accepted customs of the time and place were more likely to be included in the had¯ıth compilations than those that did not.58 These criticisms, while too complex to be examined in detail here, are important to acknowledge, given the jurisprudential reliance on had¯ıth literature with regard to the issue of consent. Thus, at its essence, marriage is a legal contract in Islamic law.59 It is an enormous aspect of Muslim life, making permissible what is otherwise impermissible outside the lawful bounds of marriage (i.e., sexual intimacy and intercourse), and is strongly recommended for all Muslims within Islamic legal and jurisprudential texts.60 Although marriage is addressed extensively in the legal and jurisprudential texts of the four major Sunni madhhabs, it is far too vast a subject area to be considered in its entirety here. As all of my research participants identified as Hanaf¯ı Muslim, the rest of this book examines consent-seeking jurisprudence from the Hanaf¯ı madhhab only. In addition to all participants adhering to the Hanaf¯ı madhhab, the preceding discussion also demonstrates that Sunni doctrinal adherence is inherently related to historical and geographical factors. As we will see in the next chapter, over 95% of all Pashtuns in or from KPK ascribe to the Hanaf¯ı madhhab. Thus, as legal research that is not theoretical but empirical in nature, this study considers law in context . The focus on the Hanaf¯ı school of thought subsequently stems from the feasibility of the study, the research sample, and the wider cultural and religious context within which the findings are situated. The next section sets out in detail the ‘elements’

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of consent-seeking that were identified in my analysis of consent-seeking from a Hanaf¯ı legal perspective.

The Elements of Marriage Consent in Hanaf¯ı Legal Doctrine The crux of this chapter, and indeed this book, is its deconstruction of Hanaf¯ı marriage law and jurisprudence to identify three ‘elements’ that make up the process of ‘consent-seeking’. This was a highly original endeavour undertaken in the research that I now report in this book. Indeed, in the body of literature on the second type of ‘Islamic’ research defined by Zahraa—that is, research that considers Muslims and Muslim societies—there has been no breakdown of Hanaf¯ı marriage law and jurisprudence into ‘elements’ of consent-seeking as yet. The three elements, derived from Hanaf¯ı jurisprudential literature, are identified as (i) consent, (ii) consultation (sh¯ur¯a), and (iii) guardianship (wil¯aya)—all three of which must be fulfilled for valid and lawful marriage to be contracted per the jurisprudential ideal in the Hanaf¯ı madhhab. The significance of breaking down consent-seeking into elements is apparent on its face. When we think of consent-seeking, we relegate the process almost entirely to the issue of consent. We rarely include concepts such as consultation or guardianship, even though these exist as legal issues in the jurisprudential literature. Indeed, consent, consultation, and guardianship together form the jurisprudential ideal envisaged by Hanaf¯ı jurists from the formative period, and into the modern day, with more recent inclusions of issues such as the difference between arranged and forced marriage—a distinction that has not existed historically and has only entered Muslim consciousness in modern times. Thus, it is the inclusion of sh¯ur¯a (consultation) and wil¯aya (guardianship) as ‘elements’ of consent-seeking that is most novel in this study, as in reality, these two concepts are neither as understood nor practiced when consent-seeking is underway. In fact, the findings of this study indicate that many Muslim parents do not believe consultation or guardianship to be legal requirements in the contracting of marriage for

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children at all, but merely ‘desirable’ additions to the process at best, or the adoption of modern Western ideals at worst. However, this chapter will show that although consent is the primary factor relevant to lawful marriage, consultation and guardianship are just as relevant to consentseeking for the purpose of deciding upon, and contracting, marriage. Indeed, all three together complete the marriage process intended by Hanaf¯ı jurists—what is called the ‘guardianship-partnership’—whereby fathers and daughters are partners in the process of marriage. The question may be asked as to why such a breakdown is necessary to an examination of consent-seeking among Hanaf¯ı Muslims. The answer here is twofold: first, the breakdown of marriage literature into these elements allows the most accurate determination of the extent to which cultural practices diverge from legal principles that one is capable of discerning through qualitative research alone. Analysing the experiences and beliefs of Pashtun Muslims against the legal requirements for valid consent, consultation, and guardianship is the most effective way to shed light on the contrast that exists between the jurisprudential ideal of a guardianship-partnership, and marriage as the unilateral parental endeavour in some Muslim societies. Second, such a breakdown at the micro-level allows ascertainment of whether, and what kind, of reform is needed in the specific cultural context of Khyber Pakhtunkhwa. The rest of this chapter examines consent-seeking from the perspective of Hanaf¯ı law and jurisprudence only, the majority of which is an in-depth examination of each of the three elements of consentseeking, according to jurisprudential literature from the formative period of Islamic law. This is followed by an exploration of marriage consent from the perspective of modern jurists to highlight the slow evolution of Hanaf¯ı thought on marriage consent to the modern day. The next section examines the first, and most legally requisite, element of consent-seeking—that of consent.

Element One: Consent When contrasted with the other major Sunni madhhabs, the Hanaf¯ı madhhab is unique with regard to the legal capacity of adult women.

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Indeed, the Hanaf¯ı position on personhood has been labelled ‘the most striking’ among the Sunni jurisprudential schools, The Hanafi understanding of male and female personhood is the most striking. In many matters of substantive jurisprudence, there is an essential sameness of the sexes. Girls and boys, as well as adult men and women, are in most instances treated in parallel and completely equal fashion. Hanafi doctrine considers a woman to be equally capable (with oversight for a few key considerations) of contracting her own marriage and equally free from compulsion in it. … For the Hanafis, a woman’s capacity to contract her own marriage is the same as her ability to conclude other contracts.61

This distinctiveness also encompasses the Hanaf¯ı position on marriage consent, which has remained consistent throughout Hanaf¯ı jurisprudence into the present day. The following sections will elucidate the extent to which Hanaf¯ı women are able to contract their own marriages, as well as to exercise their right to consent and consultation, and thereby personal opinion, during the marriage process.

Majority and Marital Status in Hanaf¯ı Marriage Jurisprudence Two factors primarily direct the legal principles governing marriage consent of free women in Islamic jurisprudence: majority, and marital status.62 Of the two factors, bul¯ugh (or majority by way of physical maturity) is central to the issue of consent in Hanaf¯ı jurisprudence, arguably more so than marital status. As none of the interviewees were minors at the time of their marriages, I will focus my examination on the legal principles pertaining to men and women of majority. Hanaf¯ı doctrine on marriage consent originated from the founder of the Hanaf¯ı madhhab, Abu Han¯ıfa (d. 150/767), who argued that a b¯aligh woman who is both free and sane cannot be married without her consent.63 A b¯aligh woman refers to a female who has reached the age of majority or puberty by way of physical maturity (and this definition of b¯aligh applies in the same way for males).

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Later Hanaf¯ı jurists, such as Ahmad bin Muhammad Qud¯ur¯ı (hereafter ‘al-Qud¯ur¯ı’) (d. 428/1037) and Im¯am al-Mawsil¯ı al-Hanaf¯ı (hereafter ‘al-Mawsil¯ı’) (d. 683/1284), accepted the position of Ab¯u Han¯ıfa,64 while Burh¯an al-D¯ın al-Margh¯ın¯an¯ı (hereafter ‘al-Margh¯ın¯an¯ı’) (d. 593/1197) expanded on the reasoning behind the Hanaf¯ı position. AlMargh¯ın¯an¯ı argued that as God places religious obligations on both men and women, a b¯aligh woman is no different to a man in her capacity to transact, and consent, in marriage: The authority over the minor is due to the lack of maturity of thought, which becomes complete upon bul¯ugh (attaining her puberty) on the evidence that the communication from the Lawgiver (the khit¯ab) becomes directed towards her. She is, therefore, just like a young man, and her capacity for being free with respect to marriage is just like her freedom to undertake transactions in her wealth.65

Both Spectorsky and Ali note that the requirement in all four major Sunni madhhabs to obtain consent from a thayyib (non-virgin or previously married) woman of majority stems from a had¯ıth that cites the case of a matron named Khans¯a bint Khidh¯am, whose marriage was contracted by her father without her consent, and was subsequently invalidated when she complained to Prophet Muhammad.66 However, among the Sunni schools, only the Hanaf¯ı madhhab extends the effect of this had¯ıth to render compulsion unlawful for any woman of majority, not just those who have been previously married. In effect, the Hanaf¯ı requirement for consent from b¯aligh women, irrespective of virginity, mirrors the requirement to obtain consent from b¯aligh males in all four major Sunni madhhabs. However, unlike the Hanaf¯ı madhhab, the M¯alik¯ı, Sh¯afi‘¯ı, and Hanbal¯ı madhhabs distinguish between consent from b¯aligh men and women. B¯aligh men cannot be compelled in marriage in any of the three madhhabs, and virginity is irrelevant in the matter, while b¯aligh virgin women could be compelled in marriage.67 In this way, all other major Sunni schools of thought consider marital status above majority. Also in contrast to the Hanaf¯ı school, the M¯alik¯ı, Sh¯afi‘¯ı, and Hanbal¯ı schools do not require consent from a virgin woman, even if she is of majority. This singular difference

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between the Hanaf¯ı madhhab and the other major Sunni madhhabs indicates the significance of majority with respect to female marriage consent in Hanaf¯ı doctrine.68

Form of Consent Required from a Baligh ¯ Woman ¯ in the Hanafı Madhhab It is clear that Hanaf¯ı legal doctrine requires consent from a b¯aligh woman, whether she is a virgin or non-virgin, during the transaction of marriage on her behalf. The form of consent that must be obtained, however, is subsequently determined by her marital, or sexual, status. Although Hanaf¯ı doctrine requires consent from a b¯aligh woman in marriage, it does not necessarily require such consent to be verbal. Silence, or ‘silent acquiescence’ as described by Kecia Ali, is lawful consent in the Hanaf¯ı madhhab.69 However, silence as lawful consent is limited to a bikr (virgin/previously unmarried) woman, and furthermore, silence can only be interpreted as consent by her legal guardian (or ‘wal¯ı’) alone.70 Where consent is sought from a bikr woman by a man other than her guardian, the non-guardian male must name the prospective husband so that she can identify him, and her response must be obtained verbally, in order to be lawful.71 In contrast to silence as lawful consent from virgin women, Hanaf¯ı doctrine requires explicit verbal consent from a thayyib (previously married) woman of majority.72 The categorical nature of this requirement for consent does not extend to the case of previously married minors. Hanaf¯ı doctrine allows marriage to be contracted by the guardian of a minor without obtaining her consent, even if the minor is a thayyib girl.73 As a result, majority is the ‘determinative’ factor in marriage consent in the Hanaf¯ı madhhab, above that of marital status.74 According to Ab¯u Han¯ıfa, a b¯aligh virgin is considered able to ‘control’ her own affairs (‘malakat amrah¯a ’)75 and, therefore, cannot be compelled (or forced) in marriage. On this, Ali contends that it is the change in sexual experience alongside majority, rather than marital status, which effectively gives ‘voice’ to a b¯aligh woman in Islamic legal jurisprudence:

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[s]exual experience gave the bride a voice, as al-Shayb¯an¯ı notes: “A virgin’s permission is her silence, but a non-virgin’s consent is spoken [bi lis¯anih¯a ].”76

This is evident in the works of Hanaf¯ı jurists mentioned earlier, such as al-Margh¯ın¯an¯ı and al-Qud¯ur¯ı, who explicitly set out the difference between a non-virgin by virtue of accident and a non-virgin by virtue of sexual experience. They explain that a woman who loses her virginity due to a non-sexual incident (such as jumping, menstruation, or injury) remains a virgin for the purpose of marriage consent—the reason being that it is sexual intercourse which renders a person thayyib in Hanaf¯ı jurisprudence, rather than any tearing of the hymen outside a sexual context.77 As a result, her consent can still be construed from her silence, whereas virginity lost as the result of sexual experience renders a woman thayyib, from whom explicit verbal consent becomes necessary. The reason for silence as lawful consent from a bikr woman, submitted by the majority of Hanaf¯ı jurists, is the idea that a virgin is ‘too shy’ to express her personal interests in marriage, even as an adult.78 On the other hand, silence is not acceptable in terms of non-consent, and explicit verbal objections from a virgin or non-virgin vitiate any subsequent marriage.79 It is important to note that silence as verbal consent, although lawful in shar¯ı‘a, does not reflect the form of consent required for lawful marriage under international human rights law (which is examined later in Chapter 4 on the secular laws that exist to govern marriage consent in KPK).

Type of Silence Deemed Valid Consent The preceding discussion indicates that Hanaf¯ı legal doctrine requires marriage consent to be obtained from a b¯aligh woman, regardless of whether she is a virgin or non-virgin. The form of her consent is subsequently determined by her marital or sexual status. A thayyib (non-virgin or previously married) woman of majority must be asked for her explicit verbal consent to marriage. A bikr (virgin) woman of majority may provide consent verbally; alternatively, if she is silent in

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response to a marriage proposal presented by her guardian, consent can be deemed from her silence. This book focuses on the consent of bikr (virgin) women in the Pashtun cultural context of KPK, as none of the Pashtun men or women that I interviewed indicated that they were either previously married, or disclosed that they were non-virgin prior to marriage.80 Given that the silence of a virgin woman is deemed lawful consent, it is imperative to examine this allowance in some detail. Hanaf¯ı doctrine accepts silence as consent where a virgin may be too shy to signify her interest in marriage; however, it contends that silence itself does not necessarily indicate acquiescence. Al-Margh¯ın¯an¯ı highlights the nuance that exists when a wal¯ı (legal guardian) is required to interpret silence in response to a marriage proposal, stating that the wal¯ı must look at the woman in her entirety; that is, he must take into consideration her body language when interpreting silence as a response.81 Importantly, Hanaf¯ı jurists require non-verbal body language and sounds to be considered alongside mere silence. For example, frowning while remaining silent, sarcastic laughter, and unhappy crying cannot be construed as silent acquiescence. However, laughter that is akin to giggling and crying softly (i.e., in happiness) are considered valid non-verbal responses for the purpose of accepting a marriage proposal.82 The wal¯ı is not only required to consider the woman in her entirety, but must also ‘heed even the most subtle signs of disapproval exhibited by the woman’.83 In other words, he must act upon her silent reluctance or disapproval by refraining from interpreting such indications as valid consent. This includes the situation where a marriage is contracted in her absence and she becomes aware of the marriage later, indicating that the nature of her silence is also valid when ratifying a marriage contract.84 Thus, the spirit of classical and formative Hanaf¯ı jurisprudence requires the wal¯ı to obtain consent, not dispassionately, but in a way that obtains the truth from the woman in any form—even where her truth is exhibited silently. For this reason, Hanaf¯ı jurists describe how to interpret non-verbal responses for the purpose of deeming lawful consent. In essence, Hanaf¯ı doctrine directs the wal¯ı to ascertain what a b¯aligh woman truly feels about a prospective marriage, indicating the importance of her willing consent in the lawful transaction of marriage.

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¯ Guardianship: The Guardian (Walı) and the Guardianship-Partnership in Consent-Seeking On the first element of consent-seeking for the purpose of marriage, we concluded that Hanaf¯ı legal doctrine requires consent from every free and sane b¯aligh woman before contracting marriage, irrespective of virginity. This section examines another of the three elements of consentseeking which relates to the ‘seeking’ of consent—particularly, to whom do jurists refer when consent is ‘sought’ for the purpose of marriage?

¯ in Hanaf¯ı Marriage Jurisprudence The ‘Walı’ The preceding jurisprudential analysis indicated that marriage consent is intrinsically tied to the concept of guardianship (wil¯aya) in Islamic jurisprudence—that is, the legal authority that is held by a guardian over virgins (and minors) subject to marriage. In short, the M¯alik¯ı, Sh¯afi‘¯ı, and Hanbal¯ı madhhabs all require a guardian to ‘represent every woman’ in the transaction of marriage,85 although the Hanaf¯ı madhhab differs from this position. Hanaf¯ı legal doctrine holds that a b¯aligh woman, who is free and compos mentis, can lawfully transact her own marriage, without the need for representation from her legal guardian.86 Historically, however, this position was not unanimous throughout Hanaf¯ı jurisprudential history, despite juristic unanimity on the necessity to obtain marriage consent from b¯aligh women. Although founding Hanaf¯ı scholar, Ab¯u Han¯ıfa (d. 150/767), held that a b¯aligh woman could transact her own marriage without her wal¯ı, later Hanaf¯ı jurists, Shayb¯an¯ı (d. 189/805) and Ab¯u Y¯usuf (d. 182/798), restricted this unilateral autonomy.87 According to these scholars, a contract without a wal¯ı was either invalid outright (Ab¯u Y¯usuf ), or was suspended and subject to the ratification of the wal¯ı for validity (Shayb¯an¯ı).88 In his divergence from the position of Abu Han¯ıfa, Shayb¯an¯ı relied on a sound had¯ıth narration, in which Prophet Muhammad thrice declared that a marriage contracted without a wal¯ı was invalid.89 However, within Hanaf¯ı jurisprudential texts, Shayb¯an¯ı is

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the only Hanaf¯ı jurist to rely upon this had¯ıth, effectively echoing the reasoning of the other Sunni madhhabs on the issue of guardianship in marriage.90 On the other hand, although Ab¯u Y¯usuf agreed with the position of Ab¯u Han¯ıfa on the unilateral autonomy of a b¯aligh woman to contract her own marriage, he was reported to have also required a wal¯ı for the transaction of lawful marriage by al-Qud¯ur¯ı and al-Margh¯ın¯an¯ı (although the reasoning for his divergence was not published by the later scholars).91 Almost four centuries after Ab¯u Y¯usuf and Shayb¯an¯ı diverged from the position of Ab¯u Han¯ıfa, al-Margh¯ın¯an¯ı (d. 593/1197) reconciled the earlier disagreement within Hanaf¯ı jurisprudence. Al-Margh¯ın¯an¯ı concluded that a free and sane b¯aligh woman could transact her own marriage without her wal¯ı, and that her wal¯ı could invalidate the contract only if she married a man beneath her status (on the basis of kaf¯a’ah). Kaf¯a’ah is the notion of social compatibility, suitability, or equality between spouses.92 However, a wal¯ı’s opposition to marriage on the basis of kaf¯a’ah could not effect automatic separation between the married spouses, but was legal grounds upon which separation may occur.93 This subsequently became the recognised position of the Hanaf¯ı madhhab on guardianship in marriage and has prevailed until the present day. Further, legal separation of the spouses could only occur upon the order of a q¯adi (judge), and not on the basis of mere opposition from the wal¯ı alone. In contrast, a b¯aligh man could not be subject to any ‘interference’ in marriage upon reaching majority, irrespective of his choice in spouse—and this position was consistent throughout all four major Sunni madhhabs, including the Hanaf¯ı madhhab.94

¯ Who Undertakes the Role of Walı? It is clear that the Hanaf¯ı madhhab allows a b¯aligh woman to freely contract her own marriage, even where her legal actions could later be brought into question by her wal¯ı. However, while permissible, the unilateral transaction of marriage by women was not necessarily encouraged by all Hanaf¯ı jurists, particularly in the case of virgin women.95 Although not necessary to lawful marriage in the Hanaf¯ı madhhab, most

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jurists strongly encouraged women to enter marriage transactions with the permission of, and alongside, their natural wal¯ı.96 Al-Margh¯ın¯an¯ı explained that the involvement of a wal¯ı in contracting marriage was encouraged as an indication of ‘good breeding’, and ensured that a charge of impudence or immodesty could not be levelled against a Hanaf¯ı woman.97 This encouragement is not limited to classical works, and as we will see later in this chapter, remains extant in modern Hanaf¯ı jurisprudence. With specific regard to the wal¯ı, Hanaf¯ı legal doctrine considers biological fathers as the natural guardians of their daughters. The conferral of natural guardianship to fathers in the first instance was not unique to the Hanaf¯ı madhhab and was reflected in the other major schools of Sunni thought.98 Scholars argue that the notion of paternal authority was ubiquitous throughout early Islamic jurisprudence and was symptomatic of the time in which the jurists lived—a time and age in which the social and legal agency of women was minimal at best.99 Women were first and foremost ‘subordinated’ to their agnatic blood relations, reflecting an intrinsic part of the societal and cultural ‘fabric’ in which early fiqh evolved.100 Hallaq describes marriage guardianship as a way of ensuring ‘conformity to a sexual and social morality that set the priorities governing both social status and the well-being of the community’, even though women had the legal right to contract marriage on their own behalf.101 Indeed, the Hanaf¯ı position on the legal autonomy of b¯aligh women was revolutionary in the social context of the time in which the scholars lived.102 The social context of the formative and classical periods also explains the juristic encouragement to involve fathers as guardians of daughters in the transaction of marriage, even though a wal¯ı was not required for lawful marriage in Hanaf¯ı legal doctrine—as well as the juristic rationale for conferring legal guardianship to fathers, who held greater social agency, over mothers throughout the Sunni schools of thought.103 Spectorsky notes that the automatic conferral of guardianship upon fathers stems from the assumed nature of their biological relationship with daughters. According to al-Margh¯ın¯an¯ı, fathers, and grandfathers in the absence of fathers, are considered to have ‘informed opinion[s] and abundant affection’ for the daughter (or granddaughter) subject to

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marriage.104 As a result, the father-guardian is assumed to act in the ‘best interests’ of his daughter and to possess the knowledge required to secure those interests on her behalf.105 In the absence of fathers, the hierarchy of lawful guardianship automatically extends to the ‘asabah (or paternal male relatives) of the woman subject to marriage. Agnates are considered before cognates in the Hanaf¯ı madhhab, although there is unresolved jurisprudential disagreement as to whether cognates should act as guardians at all.106 A paternal grandfather is the natural wal¯ı of a girl in the absence of her father, and he is followed by her full brothers.107 Al-Margh¯ın¯an¯ı sets out the reason behind the preference for grandfathers before brothers, explaining that, in contrast to fathers and grandfathers, there is a ‘deficiency’ in the relationship between other male relatives with the girl subject to marriage.108 Due to the lack of the affection that is required to achieve the ‘objectives’ of the marriage contract (i.e., securing the ‘best interests’ of the girl subject to marriage), other male relatives cannot impose binding decisions in the way of fathers and grandfathers.109 Siddiqui summarises the hierarchy of guardianship as follows: Therefore, Hanaf¯ı law subordinates the woman to her blood relations in the agnatic line, i.e. a son, a son’s son (in the case of a mother), [and for a daughter] the father, the father’s father, the full brother, etc., her maternal relations and finally the q¯adi [judge].110

She goes on to set out the four legal criteria which establish the right of guardianship in the Hanaf¯ı madhhab; these are ‘kinship (qaraba)’ to the woman, ‘guardianship (wila)’ over the woman, ‘leadership (imama)’ in terms of ability to contract and negotiate, and ‘possession (milk)’ of the woman subject to marriage (e.g., that she is not married and therefore unable to be lawfully married to someone else). All four of these criteria are normally met by biological fathers (and almost always grandfathers as well).111 However, in addition to these, the wal¯ı cannot be a minor (in the case of a minor father), and must be both free and sane, to fulfil the overarching requirement of legal competence for guardianship.112 In the absence of a suitable wal¯ı from the family, guardianship may fall to an unrelated q¯adi (independent judge) who will act in her objective best

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interests. A woman may also be represented in marriage negotiations by a wak¯ıl (agent). However, a distinction must be drawn between her wal¯ı and a ‘wak¯ıl ’ in marriage: the former almost always being the father of the woman, and the latter a ‘legally empowered agent’ who could represent either party in the process of securing marriage.113 A wak¯ıl could not act as wal¯ı for a woman, unless he fell into a category of guardianship for the individual woman subject to marriage.114 Thus, although a b¯aligh woman possesses the legal capacity to secure, and refuse, marriage on her own behalf, the wal¯ı is directly relevant to the form and process of consent-seeking where a b¯aligh woman chooses not to contract marriage for herself. It is this aspect of the religious role that informed my analysis of the findings on guardianship in Pashtun culture.

The Role of the Walı¯ and the ‘Guardianship-Partnership’ Earlier, we looked at the form of consent that must be obtained from a b¯aligh woman who chooses not to contract her own marriage, and found that her consent must be obtained by her wal¯ı for the validity of the marriage contract. The preceding section also found that Hanaf¯ı doctrine does not require a wal¯ı for the lawful transaction of marriage for a b¯aligh man or woman. Where a b¯aligh woman chooses not to contract her own marriage, her father is her natural guardian and is subsequently legally empowered to obtain (or interpret in the case of silence) her consent for marriage.115 As this study investigates the rights and responsibilities of fathers in religious marriage, this section examines the wal¯ı relationship pertaining to fathers in the marriage of daughters.116 Although not exclusive to the Hanaf¯ı madhhab, the relationship between the father-wal¯ı and his daughter is described by Hallaq as a ‘guardianship-partnership’ (wil¯ayat mush¯araka). He explains that the requirement to obtain consent, and the obligation to decide in the best interests of the girl, creates a relationship in which the wal¯ı and his daughter become partners in the process of securing marriage.117

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The wal¯ı must not only act in the best interests of his daughter, but must take into serious consideration her personal opinion. Some of the factors that must be considered by the wal¯ı include, but are not limited to, consulting his daughter on her prospective husband, transacting marriage on her behalf with an equal in status, ascertaining the social and religious compatibility of the prospective spouses, and marrying her to someone who is able to maintain the lifestyle that she is accustomed to.118 Thus, the concept of sh¯ur¯a (‘consultation’) between the wal¯ı and his daughter is central to the jurisprudentially ideal wil¯ayat mush¯araka relationship described by Hallaq. It should be noted that the ‘wil¯ayat mush¯araka’ is a jurisprudential ideal that was not considered universally throughout Hanaf¯ı jurisprudence in these exact terms. In other words, the phrase does not appear in the works of every Hanaf¯ı jurist. However, the encouragement to consult adult daughters absolutely is found consistently throughout Hanaf¯ı jurisprudence, hence being labelled the ‘jurisprudential ideal’ in consent-seeking for the purpose of marriage.

Shur ¯ a¯ (Consultation): The Obligation to Consult in the Guardianship-Partnership The root of the Arabic noun ‘sh¯ur¯a’ refers to extracting honey from a honeycomb and otherwise denotes the seeking of ‘an objective truth’ by individuals.119 Sh¯ur¯a can simply mean ‘consultation’ and is encouraged in both the Qur’an and the had¯ıth.120 A review of existing literature shows that the concept is largely considered in terms of Islamic principles relating to governance and politics.121 Although not specific to Hanaf¯ı jurisprudence, Khaled Abou El-Fadl explains that Sunni jurists in general considered sh¯ur¯a a fundamental element of decision-making in governance.122 However, sh¯ur¯a is considered here in terms of its relevance to private matters, with specific regard to decision-making in marriage. It is identified as the final element of jurisprudentially ideal consent-seeking in Hanaf¯ı legal doctrine. Mohammad Hashim Kamali describes sh¯ur¯a as being ‘integral’ to both the public and private life of a Muslim.123 He argues that the implementation of sh¯ur¯a is referenced

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alongside the fundamental pillars of faith in the Qur’an and should therefore be afforded the same prominence by Muslims.124 Fazlur Rahman explains that the Qur’an describes consultation as a defining characteristic of the Muslim, denoting ‘mutual advice through mutual discussions’ between individuals,125 And those who have responded to their Lord and established prayer and whose affair is [determined by] consultation among themselves, and from what We have provided them, they spend.126

On marriage specifically, Ahmad Al-Rays¯un¯ı states that the issue of marriage requires ‘joint consultative management’ between parents and children of majority.127 He explains that marriage is an area in which unmarried children need ‘counselling and assistance’ from parents, due to their inherent lack of experience.128 Spectorsky argues that in order to realise the best interests of his daughter, the wal¯ı is expected to ‘consult’ her about her prospective husband,129 and according to Hallaq, this includes ‘heed[ing] even the most subtle signs of disapproval’ from her with respect to marriage, as any form of coercion constitutes lawful grounds for annulment of marriage.130 Although there is limited literature regarding sh¯ur¯a prior to marriage specifically, many female scholars cite the Islamic requirement of sh¯ur¯a in matters pertaining to female participation in private and public life. Adila Abusharaf and Amanda Keddie respectively explain that because sh¯ur¯a encourages consultation between men and women in private affairs, it is often used as an ‘entry point’ for arguments advocating gender equality.131 However, Zanariah Noor argues that unnecessarily conservative, and often un-Islamic, cultural norms have curtailed the importance of sh¯ur¯a in many Muslim societies, particularly regarding the private affairs of women.132 Hiba Ra’uf contends that sh¯ur¯a must be afforded its religious significance in family relations, primarily referring to a ‘microcosmic’ sh¯ur¯a—one that is undertaken between men and women within the Muslim family (such as husbands with their wives, and fathers with their daughters).133 Thus, in order to act in the best interests of his daughter, the wal¯ı is expected to consult her prior to finalising a marriage contract, and

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this consultation forms part of the obligation to obtain consent in Hanaf¯ı legal doctrine. However, modern scholarship contends that sh¯ur¯a between men and women in some Muslim contexts does not adequately reflect sh¯ur¯a as it is described in Islamic legal jurisprudence. In this book, I investigate whether there is a gap between sh¯ur¯a as jurisprudentially encouraged and sh¯ur¯a as practiced in Pashtun culture, based on my interviews with Pashtun men and women whose marriages took place in the Pashtun cultural context of Khyber Pakhtunkhwa.

Modern Hanaf¯ı Jurisprudence on Consent-Seeking In essence, modern Hanaf¯ı jurisprudence has preserved the position of classical and formative Hanaf¯ı jurists with respect to consent-seeking for the purpose of marriage. With the inevitable march of time, these more recent works also naturally relate the nuances of marriage consent to modern societal realities; however, the reliance upon and concurrence with classical and formative Hanaf¯ı jurisprudential works are clear. As an example, contemporary Hanaf¯ı scholar, Shaykh Mufti al-Kawthari, has written extensively on the marriage had¯ıth alone.134 Like Hanaf¯ı jurists of the formative and classical periods, he explains that a b¯aligh woman retains a ‘full right’ to accept or to refuse marriage, regardless of whether she is a virgin or non-virgin,135 and goes on to state that fathers and legal guardians cannot use force, ‘relentless’ pressure, and ‘emotional blackmail’ to coerce consent—describing this as the manifestation of ‘pre-Islamic’ cultural practices.136 Interestingly, the addition of ‘emotional blackmail’ in his work effectively positions the same legal principles found in formative and classical Hanaf¯ı jurisprudence on consent into modern parlance. In terms of the other elements of consentseeking, the encouragement to engage in sh¯ur¯a is also particularly evident in the works of modern Hanaf¯ı scholars. For example, prominent Hanaf¯ı scholar, Mufti Taqi Uthmani, encourages Muslims to see a potential spouse before entering marriage137 ; in doing so, he too effectively restates the jurisprudential ideal described in classical Hanaf¯ı jurisprudence.

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Classical Hanaf¯ı jurisprudence is also echoed in more recent jurisprudence pertaining to the lawful marriage of a b¯aligh woman without a guardian. For example, Mufti Ebrahim Desai reiterates the classical position on the legal right of a b¯aligh woman to contract marriage on her own behalf without ‘the consent of her parents or her representative (wal¯ı)’,138 but also encourages the involvement of fathers in the process of contracting marriage.139 In a separate work, he explains that all parties should be included in the marriage process to ensure an ‘informed’ decision is made, and in a respectful manner.140 Yet another celebrated Hanaf¯ı source of more recent times, the nineteenth century al-Fatawa al‘Alamgiri, also effectively reiterates the classical Hanaf¯ı position on a b¯aligh woman being able to contract marriage for herself,141 A woman who is free, sane and adult may be married by virtue of her own consent, even though the contract may not have been made by the guardian.142

Interestingly, the text echoes the legal principles of guardianship centuries later, despite relying more heavily on later jurisprudential works than those from the formative Hanaf¯ı period.143 In contrast, however, modern jurisprudence more readily addresses the potential for situations that involve child abuse and mistreatment on the part of parents, while formative and classical Hanaf¯ı works reference only legal capacity.144 Nonetheless, the strong encouragement for marriage to be contracted with the involvement of the wal¯ı remains extant in modern jurisprudence.145 It is evident that consent remains a determinative factor in the present day, particularly with the prevalence of arranged marriage in many Muslim societies, as well as greater awareness of ‘forced marriage’ in media and social discourse. An examination of ‘arranged marriage’ is largely absent from formative and classical Hanaf¯ı jurisprudence, and this can be attributed to the fact that marriages contracted unilaterally by guardians were not considered unusual in the early centuries of Islam.146 However, jurists effectively addressed practices akin to arranged marriage in the classical period (i.e., marriages contracted by guardians

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on behalf of their wards). On the modern practice of arranged marriage, al-Kawthari states that such marriages are not recommended in Islam, as marriage without consent (or ‘forced marriage’) can arise in some instances of arranged marriage, It is important to understand that a forced marriage is not the same as arranged marriage, although force can hide behind the façade of an arranged marriage. In an arranged marriage, parents and other family members are used as a marriage agency, but it cannot take place without the full consent of both partners. An arranged marriage is not necessarily recommended in Islam and neither disliked … A forced marriage, however, is where one or both partners are coerced into marriage against their will.147

Modern Hanaf¯ı jurisprudence also reiterates classical Hanaf¯ı doctrine regarding the form of consent that must be obtained from a b¯aligh woman.148 This is primarily because the had¯ıth report which describes the type of consent that must be obtained from a b¯aligh woman remains unambiguous in interpretation, and subsequently continues to be cited by contemporary Muslim scholars. However, unlike classical and formative works, there is an encouragement in modern times for explicit verbal consent from the woman subject to marriage, whether she is a virgin or not. Al-Kawthari writes that written consent is perhaps the best form of consent to obtain in the process of consent-seeking today, In terms of a previously married non-virgin woman, it is necessary to seek her explicit spoken approval. As for a virgin girl, her silence and non-refusal is sufficient. This distinction is due to the fact that a virgin is normally shy and withdrawn, and may be hesitant in making her feelings known verbally – especially in the presence of her parents. A previously married woman, on the other hand, is typically bolder, since she has experienced marriage before. Given the times we live in, it is best to acquire clear and explicit permission from a virgin girl as well – to avoid any future denial or disagreement – and even better if consent is obtained in writing and that she dates and signs; and All¯ah knows best.149

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Again, modern Hanaf¯ı jurisprudence does not deviate from the position of formative and classical jurisprudence to any significant degree. This indicates the fixed nature of legal principles pertaining to marriage and the relevance of formative and classical jurisprudence to Muslim marriage in the modern day. However, the subsequent encouragement (albeit not requirement) for verbal or written consent from virgins is more reflective of contemporary human rights norms. As Ali explains, marriage jurisprudence results from continual interpretation by jurists ‘living and thinking at a specific time’.150 In this way, contemporary Hanaf¯ı scholarship indicates that there may be a need for explicit verbal consent from all women in the twenty-first century—a time in which there is greater agency and awareness among unmarried women, regardless of age and marital status, throughout the globalised world. This would include the Pashtuns of Khyber Pakhtunkhwa—a historically tribal people existing in the modern world.

Conclusion This chapter examined consent-seeking jurisprudence from the perspective of the Hanaf¯ı madhhab, as well as marriage in Sunni Islamic law and jurisprudence more generally. In doing so, the three major elements that I identified as being necessary for a valid marriage contract were deconstructed as: (1) consent (into both necessity and form), (2) sh¯ur¯a (consultation) in the process of deciding upon marriage, and (3) the role of the wal¯ı (guardian) in contracting marriage. In particular, these three elements were identified as together comprising the wil¯ayat mush¯araka, or the jurisprudential ideal of a ‘guardianship-partnership’ between fathers and daughters. It is this partnership, derived from classical and formative Hanaf¯ı literature, against which my findings on consent-seeking in Pashtun culture will be analysed. Before we move on, it is important to note that I recognise the selfidentified nature of these jurisprudentially-derived elements. However, the breakdown allows for a greater ability to determine whether there is a divergence between consent-seeking in Pashtun culture and Hanaf¯ı legal doctrine, as well as the extent of divergence, if found to exist. These

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three elements have subsequently been used to structure the research findings presented later in Chapters 5–7. The next chapter on law in context provides some background into Pashtun culture itself, marriage in Pashtun culture, as well as a brief review of the provincial, federal, and universal laws that exist alongside shar¯ı‘a to regulate consent-seeking in Khyber Pakhtunkhwa.

Notes 1. In common Arabic, shar¯ı‘a literally translates to ‘a waterhole where animals gather daily to drink’, and in Qur’anic or classical Arabic, ‘the straight path’. See Abu Ameenah Bilal Philips, The Evolution of Fiqh: Islamic Law & The Madh-habs (A.S. Noordeen, 2002) 1. The word ‘shar¯ı’a’ is also found in Surah al-Jaathiyah [45:18] of the Holy Qur’an: ‘Then We put you on a straight path (shar¯ı’a) in your affairs, so follow it and do not follow the desires of those who have no knowledge’. 2. Frank Griffel, ‘Introduction’ in Abbas Amanat and Frank Griffel (eds), Shar¯ı’a: Islamic Law in the Contemporary Context (Stanford University Press, 2007) 3. 3. Ibid 4. See also Cynthia Shawamreh, ‘Islamic Legal Theory and the Context of Islamist Movements’ (2012) 2(2) Notre Dame Journal of International & Comparative Law 197. 4. The most sacred of the four sources of shar¯ı‘a is the Qur’an. For Muslims, the Qur’an was revealed as a sacred text by Allah (God) to Prophet Muhammad with divine knowledge on human affairs, human spirituality and beliefs, and the ways in which humans should conduct themselves on Earth. The Qur’an provides accounts of the lives of previous Prophets, such as the Prophets M¯usa (Moses), ¯Isa (Jesus), Ibr¯ah¯ım (Abraham), Ism¯a¯ıl (Ishmael), Y¯usuf (Joseph), Ya‘q¯ub (Jacob), N¯uh (Noah), L¯ut (Lot), and more, as well as of Angels such as the Angels Jibr¯a¯ıl (Gabriel) and Mik¯a‘¯ıl (Michael). These accounts of the Prophets who lived before Prophet Muhammad were revealed to confirm the previous Abrahamic revelations from God in both the Torah and Gospel, and

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to present the Qur’an and Prophet Muhammad as the last revelation and the last Messenger of God, respectively. Of over six thousand verses, the Qur’an includes approximately five hundred legal verses, which are the most instructive verses for the derivation of Islamic legal principles. These legal verses operated to distinguish the new Abrahamic religion from the previous and to ‘reflect further independence in the identity of a new Islamic community … which had now become entitled to its own Law that paralleled, but was distinct from, other monotheistic laws’. For example, the Qur’an states that, ‘God has made trade lawful and prohibited interest ’ [Qur’an 2:275]. From this explicit legal verse, shar¯ı‘a allows Muslims to engage in all fair forms of trade and prohibits Muslims from charging and paying interest. However, not all verses in the Qur’an are as easily applicable to the intricacies of human life, and many verses were not as straightforward to implement. Therefore, the Qur’an is closely complimented by the second most important source of shar¯ı‘a, the sunnah of Prophet Muhammad as recorded in had¯ıth literature. See Wael B Hallaq, An Introduction to Islamic Law (Cambridge University Press, 2009) 14–24; Anver M Emon, ‘Shari‘ a and the Modern State’ in Anver M Emon, Mark Ellis and Benjamin Glahn (eds), Islamic Law and International Law: Searching for Common Ground? (Oxford University Press, 2012) 54; Wael B Hallaq, Shar¯ı’a: Theory, Practise, Transformations (Cambridge University Press, 2009) 31; Shawamreh, above n 4, 198. 5. The sunnah of Prophet Muhammad are his actions [al-Sunnah alqawliyyah], sayings [al-Sunnah al-fi‘liyyah], and tacit approvals [alSunnah al-taqr¯ıriyyah], which were recorded as eyewitness accounts by his Companions, and are referred to as ‘had¯ıth’ (singular: had¯ıth; plural: ah¯ad¯ıth). The word sunnah means ‘well-known path’ or the ‘well-trodden path’, while the word had¯ıth means ‘saying’. Muslims believe that God sent Prophet Muhammad to humankind as an example of the best behaviour and temperament. The had¯ıth are therefore intended to form the basis of norms for practising Muslims. Anver Emon explains that the Qur’an and had¯ıth work together to form the primary ‘source-texts’ for deriving Islamic

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law—the Qur’an is ‘God’s guidance to humanity’, and had¯ıth the ‘inspired prophetic guidance that both gives additional insight into the Qur’an and addresses those issues not covered expressly or impliedly by the Qur’an’. See Emon, above n 4, 52–4; Hallaq, An Introduction to Islamic Law, above n, 16; Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Us¯ul al-Fiqh) (The International Institute of Islamic Thought, 2000) 162–5. 6. Ijm¯a ‘ means ‘consensus of legal opinion’; however, technically, it entails the consensus of mujtahids (highly qualified independent Muslim jurists) after the Prophet’s death on a point of shar¯ı‘a. Consensus must be unanimous among recognised Islamic jurists of a single determined period (or generation) and cannot be among Muslim leaders, politicians or the public, who are not recognised Islamic jurists, nor can it be the consensus of only one or two jurists, or jurists over different periods of time. Some jurists believe that consensus can be of the majority, while others believe consensus of the majority would be juristically persuasive, but would not satisfy the unanimity requirement for valid ijm¯a‘ . Ijm¯a ‘ can either be explicit or tacit consensus. Explicit ijm¯a‘ transpires when the ‘legal opinions of all the jurists of one period converge in relation to a legal issue, and each of them states his opinion explicitly’. Nyazee notes that this can occur when all the jurists are gathered together and pass a unanimous decision in that gathering, or when jurists issue similar decisions ‘independently and at separate times’ during a determined period (or generation) on one legal issue. Tacit ijm¯a‘ on the other hand occurs when one or more jurists issue a decision on a legal issue, and all other jurists know of the issue and decision and stay silent, or neither acknowledge nor refute the decision made. As a result, Islamic jurists consider explicit ijm¯a ‘ to be binding upon all Muslims, and that acting contrary to explicit ijm¯a‘ is to sin, while they disagree on the binding authority of tacit ijm¯a‘ . Some jurists believe that tacit ijm¯a ‘ is as binding as explicit ijm¯a‘ ; however, others do not believe that tacit ijm¯a ‘ can be considered an authoritative source of shar¯ı‘a at all. See Khan Nyazee, above n 5, 183–7.

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7. Qiy¯as in Arabic means ‘measuring or estimating one thing in terms of another’, and in an Islamic jurisprudential sense, qiy¯as means to ‘reason by analogy’. According to Hallaq, qiy¯as is not a material source of shar¯ı‘a, but rather, is only a ‘set of methods through which the jurist arrives at legal norms’. Qiy¯as, like any Western legal method, is made up of elements. In the case of qiy¯as, four elements must be satisfied in order to derive authoritative shar¯ı‘a. These are: (i) there is a new case that requires a legal solution; (ii) the original case upon which the analogy will be based can be found in any of the Qur’an, had¯ıth, or ijm¯a ‘ ; (iii) there is a ratio legis or common attribute to both the original and the unresolved case; and (iv) the legal norm found in the original case can be transposed to the unresolved case due to the similarity between the two cases. See Hallaq, An Introduction to Islamic Law, above n 4, 23. While some authors cite qiy¯as as the fourth source of shar¯ı‘a, others cite ‘ijtih¯ad . ‘ijtih¯ad literally means the ‘expending of maximum effort in the performance of an act’. Therefore, in a technical Islamic jurisprudential sense, ‘ijtih¯ad entails the interpretation of shar¯ı‘a by highly qualified legal jurists (mujtahid s). Nyazee notes that there are three ‘modes’ of ‘ijtih¯ad —these are: (i) for the mujtahid to discover, through literal interpretation, the ‘law that is either stated explicitly in the primary sources or is implied by the texts’; (ii) for the mujtahid to ‘extend the law to new cases that may be similar to cases mentioned in the textual sources’, but are not covered through literal interpretation of the texts (otherwise known as qiy¯as); and (iii) for the mujtahid to ‘extend the law to new cases that are not covered by the previous two methods’, as they are not covered through literal interpretation, nor are they ‘similar to cases found in the texts’. In other words, the second mode confines the mujtahid to ‘extension of the law from individual texts’, while the third mode requires the mujtahid to rely ‘on all the texts considered collectively’. See Khan Nyazee, above n 5, 214–5, 264; Shawamreh, above n 3, 202. 8. Hallaq, An Introduction to Islamic Law, above n 4, 14–24; Emon, above n 4, 54.

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9. Mohammad Abdalla, ‘Sacred Law in Secular Land: to What Extent Should Sharia Law Be Followed in Australia?’ (2012) 21(3) The Griffith Law Review 657–79; Mohamad Abdalla, ‘Does Australia Need a Mufti? Analysing the Institution of Ifta in an Australian Contemporary Context’ in N Hosen and R Mohr (eds), Law and Religion in Public Life (Palgrave Macmillan, 2011) 216. 10. Abdalla, ‘Does Australia Need a Mufti? Analysing the Institution of Ifta in an Australian Contemporary Context’, above n 9. 11. According to Philips, fiqh is literally translated to ‘the true understanding of what is intended’. See Bilal Philips, above n 1, 1. 12. Bilal Philips, above n 1, 1. 13. Abdalla, ‘Does Australia Need a Mufti? Analysing the Institution of Ifta in an Australian Contemporary Context’, above n 9. 14. Ibid. 15. Shawamreh, above n 3, 198; Khan Nyazee, above n 5, 35–7. 16. Shawamreh explains that Shi‘ism ‘followed most of the legal and juristic forms of the Sunni model, with a delay of approximately two centuries’. See Shawamreh, above n 3, 198. 17. Amanat and Griffel, above n 2, 3. 18. Khan Nyazee, above n 5, 10–13. 19. Ibid. 20. Hallaq, An Introduction to Islamic Law, above n 4, 32. 21. Ibid. 22. Hallaq, An Introduction to Islamic Law, above n 4, 70, 33. 23. Hallaq, An Introduction to Islamic Law, above n 4, 179. 24. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 63. 25. Ibid. 26. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 66. 27. See Hallaq, An Introduction to Islamic Law, above n 4, 36–7. 28. Muhammad Qasim Zaman, ‘Reviewed Work(s): The Islamic School of Law: Evolution, Devolution, and Progress’ (2009) 16(1) Islamic Law and Society 101, 102; Wael B Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge University Press, 2001) 60. See also Christopher Melchert, The Formation of the Sunni Schools of Law: 9th–10th Centuries CE (Brill, 1997) xvii–xxv.

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29. Susan A Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Brill, 2010) 12. 30. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 67. 31. Spectorsky, above n 29, 12. 32. Spectorsky, above n 29, 9–10. 33. Spectorsky, above n 29, 10. 34. Ibid. See also Peri Bearman, Rudolph Peters and Frank Vogel, The Islamic School of Law: Evolution, Devolution, and Progress (Harvard University Press, 2005); and Mohammad Hameedullah Khan, The Schools of Islamic Jurisprudence: A Comparative Study (Kitab Bhavan, 1991). 35. See Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, ch 14 (‘The Jural Colonization of Indian and South-East Asia’). 36. Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010) 33–4; Spectorsky, above n 29, 10–11. 37. Spectorsky, above n 29, 11. 38. Ibid. 39. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 67–8; Spectorsky, above n 29, 11–12. 40. Spectorsky, above n 29, 11. 41. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 67–8. 42. Hallaq, An Introduction to Islamic Law, above n 4, 37. 43. Hallaq, Authority, Continuity, and Change in Islamic Law, above n 28, 62. 44. An example of such doctrinal boundaries is provided by Hallaq: ‘The example of Abu Muhammad al-Juwayn¯ı (d. 438/1064), the father of Imam al-Haramayn, may be somewhat extreme, but it does illustrate our point. Juwayn¯ı the father was clearly a Sh¯afi‘¯ıte who wrote some of the more important and influential works in the school. Yet he was also recognized as a mujtahid who consciously stood, or attempted to place himself, outside the boundaries of any school. It is reported that he wrote, or least began to write (shara‘a f¯ı kit¯ab), a work entitled al-Muh¯ıt in which he intended, quite deliberately, to transcend the limits of the Sh¯afi‘¯ıte school by discounting its specific doctrines altogether. Juwayn¯ı’s radical position is instructive because despite all

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47.

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his attempts at promoting his own juristic agenda and nonconformity, he continued to be counted among the staunch Sh¯afi‘¯ıtes who unquestionably belonged to the school’. See Hallaq, Authority, Continuity, and Change in Islamic Law, above n 28, 63. See Hallaq, An Introduction to Islamic Law, above n 4, 37. The detailed compilations of primary source had¯ıth were reviewed and compiled by revered scholars in the ninth century. For example, Persian scholar Muhammad al-Bukh¯ar¯ı (d. 256/870) authored S.ah.¯ıh. al-Bukh¯ar¯ı in the ninth century (one of the six principal hadith collections in Sunni Islam). Persian scholar Muslim ibn Al-Hajjaj (d. 261/875) authored S.ah.¯ıh. Muslim in the ninth century (another of the six principal hadith collections in Sunni Islam). Muhammad ibn Isa at-Tirmidh¯ı (d. 279/892) authored Jami‘ at-Tirmidh¯ı in the ninth century (yet another of the six principle hadith collections in Sunni Islam). Also included in the six major compilations of had¯ıth are the books Sunan Abi Dawud , Sunan an-Nasa‘i, and the Sunan Ibn Majah. Occasionally included in place of the Sunan Ibn Majah is Muwat..ta M¯alik. The specific Books of Nik¯ah (Marriage) in each compilation include: S.ah.¯ıh. al-Bukh¯ar¯ı, Book 67 (Kit¯ab al-Nik¯ah, Wedlock, Marriage); S.ah.¯ıh. Muslim, Book 16 (Kit¯ab al-Nik¯ah, The Book of Marriage); Jam¯ı at-Tirmidh¯ı, Book 11 (Kit¯ab al-Nik¯ah, The Book on Marriage); Sunan Abi Dawud , Book 12 (Kit¯ab al-Nik¯ah, Book of Marriage); Sunan an-Nasa‘i, Book 26 (Kit¯ab al-Nik¯ah, The Book of Marriage); Sunan Ibn Majah, Book 9 (Kit¯ab al-Nik¯ah, The Chapters on Marriage); and Muwat..ta M¯alik, Book 28 (Kit¯ab al-Nik¯ah, Marriage). S.ah.¯ıh. al-Bukh¯ar¯ı 5136, Book 67, Had¯ıth 72. The S.ah.¯ıh. Muslim 1419a, Book 16, Had¯ıth 75 is stronger in wording than Bukh¯ar¯ı, employing the term ‘must’ as opposed to ‘should’: ‘Ab¯u Huraira (Allah be pleased with him) reported Allah’s Messenger (SAW) as having said: A woman without a husband (or divorced or a widow) must not be married until she is consulted, and a virgin must not be married until her permission is sought. They asked the Prophet of Allah (SAW): How her (virgin’s) consent

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49.

50. 51.

52.

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can be solicited? He (the Holy Prophet) said: That she keeps silence’. For reports of similar had¯ıth, see Jam¯ı at-Tirmidh¯ı 1107–1108, Book 11, Had¯ıth 28–29; Sunan Abi Dawud 2098–2100, Book 12, Had¯ıth 53–55; Sunan an-Nasa‘i 3260–3267, Book 26, Had¯ıth 65– 72; Sunan Ibn Majah (English reference) vol 3, Book 9, Had¯ıth 1870–1871; and Muwat..ta M¯alik, Book 28, Had¯ıth 4. S.ah.¯ıh. al-Bukh¯ar¯ı 5138, Book 67, Had¯ıth 74. For reports of similar had¯ıth, see Sunan Abi Dawud 2096, Book 12, Had¯ıth 51; Sunan an-Nasa‘i 3268–3269, Book 26, Had¯ıth 73–74; and Sunan Ibn Majah (English reference) vol 3, Book 9, Had¯ıth 1873–1875. Sunan an-Nasa‘i 3221, Book 26, Had¯ıth 26. It is important to note that, due to the time in which these had¯ıth and other classical works were recorded and compiled, the language and occasionally confronting turns of phrase denote an era very different to scholarly works of the present. For example, the difference between the rights of virgin and non-virgin females, and the preference for Muslim men to marry young virgin females is noted in reading the had¯ıth and classical literature—a preference that is not made as bluntly in scholarly writings today. See, for example, the narration of Jabir bin ‘Abdullah in S.ah.¯ıh. al-Bukh¯ar¯ı 5080, Book 67, Had¯ıth 18, and the narration of Jabir bin ‘Abd Allah in Sunan Abi Dawud 2048, Book 12, Had¯ıth 3 for the preference of marriage to young female virgins. It is clear in researching the issue that the gendered nature of many of the legal texts should be kept in mind, in order to prevent neglect of relevant information. Kecia Ali explains, ‘readers understandably focus on what is strange – noting unanimous juristic agreement on the right of the father to marry off his minor and/or virgin daughter without her permission – and bypass what was a highly significant reform in its own context: the insistence that a woman who had once been married could not be married off again without her spoken consent. Seeing through a modern lens, we risk overlooking the key issues that animated these legal discussions. …’: Ali, above n 36, 24. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 275.

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53. S.ah.¯ıh. al-Bukh¯ar¯ı 5120, Book 67, Had¯ıth 56: ‘Narrated Thabit AlBanani: I was with Anas while his daughter was present with him. Anas said, “A woman came to Allah’s Apostle and presented herself to him, saying, “O Allah’s Messenger (SAW), have you any need for me (i.e. would you like to marry me)?” Thereupon Anas’s daughter said, “What a shameless lady she was! Shame! Shame!” Anas said, “She was better than you; she had a liking for the Prophet (SAW) so she presented herself for marriage to him.”’. 54. See Jami at-Tirmidh¯ı 1101–1102, Book 11, Had¯ıth 22–23: ‘Aishah narrated that: The Messenger of Allah said: “Whichever woman married without the permission of her wal¯ı [legal guardian] her marriage is invalid, her marriage is invalid, her marriage is invalid. If he entered into her, then the mahr (dower) is for her in lieu of what he enjoyed from her private part. If they disagree, then the Sultan is the wal¯ı for one who has no wal¯ı.”’ For corroborating had¯ıth, see also Sunan Ibn Majah (English reference) vol 3, Book 9, Had¯ıth 1879. 55. Ali, above n 36, 33–4. 56. Ibid. 57. Ali, above n 36, 36. 58. For example, Mohammad Ali Syed sheds uncertainty over the use of had¯ıth by the founder-mujtahids, stating the use of had¯ıth in Islamic law ‘created problems that were completely unforeseen’. Syed explains that Muslim jurists relied upon had¯ıth ‘to the extent of giving the had¯ıth precedence over the Qur’an’, despite the Prophetic warning to reject any had¯ıth report which diverged from the holy book. As a result, he notes it may be possible that forged had¯ıth were given undue consideration by jurists in the process of creating Islamic law. Some classical jurists further emphasised the role of had¯ıth in the formation of Islamic law by going so far as to state that had¯ıth reports could repeal the Qur’an, in the same way the Qur’an, as the most divine source of Islamic law, could authoritatively repeal had¯ıth. For example, classical Sh¯afi‘¯ı jurist Ibn Kath¯ır (d. 774/1373), propounded an extreme view by stating that the sunnah of Prophet Muhammad ‘prevails over the Qur’an’ as opposed to the Qur’an prevailing over the sunnah. Syed notes

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that such a view facilitated the inclusion of had¯ıth forgeries in the development of Islamic law with serious consequences, and may have contributed to the inclusion of had¯ıth which reduce the status of women in Islam, in accordance with patriarchal cultural norms of the time. Khaled Abou El-Fadl has also examined the inclusion of had¯ıth harmful to women, stating they have grave consequences, and ‘contribute to the general denigration of the moral status of women’. The issue of selectivity and authenticity of had¯ıth reports forms the crux of Speaking in God’s Name: Islamic Law, Authority and Women. In his work, El-Fadl highlights the debated and contextual nature of the had¯ıth literature, which is almost only consumed as an immutably objective body of Prophetic sayings by Muslims. However, he notes this view is not shared by Muslim scholars who recognise the creative nature of ‘subjectivity in the process of authenticating, documenting, organizing, and transmitting the reports attributed to the Prophet and the Companions’. The influence of custom on the inclusion of had¯ıth in classical works is evident, particularly as El-Fadl unpacks the subjectivity and patriarchal objectives behind the wording and inclusion of had¯ıth reports demeaning to women in had¯ıth literature and jurisprudence. On the issue, Syed further states that the legal principles espoused by the founder-mujtahids from the had¯ıth can, however, be modified in modern times by exercising ‘ijtih¯ad (independent legal reasoning), where those principles are no longer the norm in society. This is because the had¯ıth do not hold the same immutable authority as the Qur’an. An example of this would be the exercising of ‘ijtih¯ad regarding those had¯ıth that allow guardians to compel minors into marriage, given the growing intolerance among modern Muslims towards the practices of forced and minor marriage. See Mohammad Ali Syed, The Position of Women in Islam: A Progressive View (State University of New York Press, 2004) 6–9, 41; Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Publications, 2001) 98–133, 212–3, 247–9.

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59. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 272. 60. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 271–2. 61. Kecia Ali, Money, Sex, and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period (PhD Dissertation, Duke University, 2002) 455–6. 62. None of the research interviewees were enslaved men or women in Khyber Pakhtunkhwa. Thus, Islamic legal jurisprudence regarding enslaved men and women falls beyond the purview of this research. However, detailed analysis of jurisprudence on this aspect of consent can be found in the works of Kecia Ali: see Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010); Ali, Money, Sex, and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period , above n 61, 455. 63. Burh¯an al-D¯ın al-Fargh¯an¯ı al-Margh¯ın¯an¯ı, Al-Hid¯ayah: The Guidance (Imran Ahsan Khan Nyazee trans, Amal Press, 2006) vol 1 491–2 [trans of: Al-Hid¯ayah f¯ı Sharh. Bid¯ayat Al-Mubtadi’ (first published circa 12 CE)]. See also Hallaq, Authority, Continuity, and Change in Islamic Law, above n 28, 274; Ali, above n 36, 41. 64. See, for example, Ahmad bin Muhammad Qud¯ur¯ı, Mukhtasar in ‘Abd al-Gh¯an¯ı al-Ghan¯ım¯ı al-Mayd¯an¯ı, al-Lub¯ab f¯ı sharh. al-kit¯ab (Beirut, 1991) vol 2. 65. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492. 66. Spectorsky, above n 29, 66; Ali, above n 36, 41. For the had¯ıth citing the case of Khans¯a bint Khidh¯am, see S.ah.¯ıh. al-Bukh¯ar¯ı 5138, Book 67, Had¯ıth 74: ‘Narrated Khans¯a bint Khidh¯am AlAns¯ariyya: that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah’s Messenger (SAW) and he declared that marriage invalid’. For similar reports of this had¯ıth, see Sunan Abi Dawud 2096, Book 12, Had¯ıth 51; Sunan an-Nasa‘i 3268–3269, Book 26, Had¯ıth 73– 74; and Sunan Ibn Majah (English reference) vol 3, Book 9, Had¯ıth 1873–1875. 67. Ali, above n 36, 31–2. 68. Ali, above n 36, 32–3. 69. Ali, above n 36, 37.

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70. The term ‘wal¯ı’ refers to the legal guardian of a woman and is examined in detail later in this chapter. Al-Margh¯ın¯an¯ı explains that, ‘if this [seeking consent] is done by a person other than the wal¯ı, that is, someone other than the wal¯ı seeks her permission, or someone else becomes her wal¯ı at a removed level (like a brother instead of the father), consent is not given unless she expresses this in words’. See al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 493. 71. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492. Margh¯ın¯an¯ı states: ‘… The seeking of permission deemed valid [by someone other than the wal¯ı] is one where the husband to be is named in a manner in which he can be identified, so that her desire to marry him can be distinguished from her desire not to marry him’. 72. Ibid. 73. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492; Ali, above n 36, 33. According to al-Margh¯ın¯an¯ı, consent is not a requirement from minors because they are considered as being ‘unaware of the complexities’ of marriage, and due to their general lack of life experience. 74. Ali, above n 36, 33. 75. Ab¯u Y¯usuf Ya‘q¯ub, Ikhtil¯af Ab¯ı Han¯ıfa wa Ibn Ab¯ı Layl¯a, li ‘l-im¯am Ab¯ı Yus¯uf Ya‘q¯ub b. Ibr¯ah¯ım al-Ans¯ar¯ı (Matba ‘at al-Waf¯a’, 1938) 178–9 in Ali, above n 36, 37 nn 29. 76. Ali, above n 36, 41 nn 48. See also Muhammad al-Shayb¯an¯ı, Muwat..ta al-Im¯am M¯alik, bi riw¯ayat Muhammad bin al-H . asan al-Shayb¯an¯ı (Al-Matba‘a al-‘Ilmiyya, 1997) 177. 77. Ali, above n 36, 41; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 493–4; al-Qud¯ur¯ı’, above n 64. 78. Spectorsky, above n 29, 66. 79. Ali, above n 36, 41; al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492. Al-Margh¯ın¯an¯ı states that, ‘… If the wal¯ı seeks her permission and she remains silent or laughs, then, that is taken to be her permission, due to the words of the Prophet (God bless him and grant him peace), “The permission of the virgin is to be attained about her marriage. If she remains silent she has consented.” The reason is that the inclination to give her consent is greater, because she is

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81.

82. 83. 84. 85. 86.

87. 88. 89.

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shy about expressing her willingness, but that is not so in the case of denial’. As explained earlier in Chapter 2, discussing issues such as virginity and sexual status is incredibly taboo in Pashtun culture, and as a result, such questions were not asked of any interviewee in order to prevent discomfort or offence. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492 nn 3. AlMargh¯ın¯an¯ı explains that, ‘If the wal¯ı seeks her permission [that is, of a girl who has attained puberty] and she remains silent or laughs, then, that is taken to be her permission, due to the words of the Prophet (God bless him and grant him peace), “The permission of the virgin is to be attained about her marriage. If she remains silent she has consented.” The reason is that the inclination to give her consent is greater, because she is shy about expressing her willingness, but that is not so in the case of denial. Laughter has a greater implication about consent than silence as distinguished from the situation where she cries, as that is an indication of annoyance and disapproval. It is said that if she laughs in a sarcastic manner at what she hears, then, this is not to be taken as consent, but if she cries without making a sound, it does not amount to rejection’. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 492; al-Qud¯ur¯ı’, above n 64. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 275 nn 29. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 493. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274; Ali, above n 36, 30. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 491; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274–5; Spectorsky, above n 29, 148–9; Ali, above n 36, 30. Spectorsky, above n 29, 149. Ibid. See also Ali, above n 36, 42. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 491–2. See Jami atTirmidh¯ı 1101–1102, Book 11, Had¯ıth 22–23; Sunan Ibn Majah (English reference) vol 3, Book 9, Had¯ıth 1879 for this particular had¯ıth, which states: ‘Aishah narrated that: The Messenger of Allah

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90. 91. 92.

93.

94. 95. 96. 97.

98. 99. 100.

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said: ‘Whichever woman married without the permission of her wal¯ı, her marriage is invalid, her marriage is invalid, her marriage is invalid. If he entered into her, then the mahr (dower) is for her in lieu of what he enjoyed from her private part. If they disagree, then the Sultan is the wal¯ı for one who has no wal¯ı’. Ali, above n 36, 42–3. Spectorsky, above n 29, 149. Mona Siddiqui, ‘Law and the Desire for Social Control: An Insight into the Hanaf¯ı Concept of Kaf¯a’ah with Reference to the Fatawa al-‘ Alamgiri’ in Mai Yamani (ed), Feminism and Islam (Ithaca Press, 1996) 49. Mona Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law: Authority versus Consent in al-Fatawa al-‘ Alamgiri’ (1998–99) 5 Yearbook of Islamic and Middle Eastern Law 171, 184. Ali, above n 36, 39. Ali, above n 36, 37. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174; Ali, above n 36, 37–8. Ali, above n 36, 36; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 491; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274; Spectorsky, above n 29, 149. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 495–6; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274–6. Ali, above n 36, 37–8. According to al-Margh¯ın¯an¯ı, the conferral of guardianship to agnates stems from the had¯ıth report in which Prophet Muhammad is reported to have said, ‘Marriage is delegated to the ‘asab¯at [agnatic male relations]’. Imran Ahsan Khan Nyazee notes that, although this report was not included in any of the sound had¯ıth compilations, the four Sunni schools of thought unanimously accepted the had¯ıth. This lends credence to the argument of Mona Siddiqui, who contends that guardianship in Hanaf¯ı jurisprudence was the result of prevailing cultural norms that embodied a ‘perpetual’ patriarchal structure: al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 496 nn 12; see also Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174–5.

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101. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 276. 102. This was revolutionary in the social context of the world at the time. Raga El-Nimr contends that, throughout human history, the issue of women and the existence and form of their rights have been subject to the interpretations and limitations imposed and implemented by men as the dominant sex. She provides literary excerpts pertaining to the status of women within other early civilisations in order to highlight the universal nature of the issue (e.g.: Athenian women were always minors to their father, to their brother, or to some of their male kin. The woman was obliged to submit to the wishes of her parents, to receive from them her husband and her lord.) El-Nimr argues that these views continued until the nineteenth and twentieth centuries, when married English women were given property rights under legislation implemented in 1870, and French laws were changed in 1938 to allow women to deal in property and operate a bank account; a significant step in France, since public debates in 1586 regarding the position of women determined that women had been created ‘to serve men’. Economic labour market forces eventually spawned progressive activism of female rights in the economic and social spheres; this call for gender equality in the West is still present and prevailing into the foreseeable future: Raga’ El-Nimr, ‘Women in Islamic Law’ in Mai Yamani and Andrew Allen (eds), Feminism and Islam: Legal and Literary Perspectives (Garnet Publishing Limited, 1996) 90. 103. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 275–6. 104. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 496. Although Margh¯ın¯an¯ı makes this point with specific regard to the marriage of minors, this rationale also operates with respect to fathers (and grandfathers in the absence of fathers) as the natural wal¯ı of virgin b¯aligh (adult) women in Sunni jurisprudence. Minor marriage falls outside the scope of this research as none of the Pashtun interviewees were minors at the time of marriage. 105. Spectorsky, above n 29, 67; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274. 106. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 175. 107. Spectorsky, above n 29, 69.

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108. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 495. 109. Spectorsky, above n 29, 69; al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 495. 110. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174. 111. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 175; Sheikh Nizam Burhanpur, Al-Fatawa al‘Alamgiri (3rd ed, Beirut, 1973) 284 in Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 175. 112. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 175. Slavery rescinded any legal authority otherwise held by an adult male, hence the requirement that a wal¯ı be ‘free’ for the purpose of establishing legal competence. The wal¯ı of a female slave was her ‘owner’ throughout the Sunni schools of thought—and male slaves also required the permission of their owners for the purpose of marriage: Ali, above n 36, 38–40. 113. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274. 114. Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174–5. 115. See Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 175. 116. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 274. 117. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 275. 118. Spectorsky, above n 29, 204. 119. Muhammad Nazeer Ka Ka Khel, ‘The Conceptual and Institutional Development of Sh¯ur¯a in Early Islam’ (1980) 19(4) Islamic Studies 271. 120. The Holy Qur’an 3:159; 42:1–26. 121. Ka Ka Khel, above n 119. See also Khaled Abou El-Fadl, ‘Constitutionalism and the Islamic Sunni Legacy’ (2001) 1 Journal of Islamic and Near Eastern Law 67, 85–6; Fazlur Rahman, ‘Principle of Sh¯ur¯a and the Role of the Umma in Islam’ (1984) 1(1) Journal of Islamic Social Sciences 1; Aaron M Hagler, ‘Sapping the Narrative: Ibn Kathir’s Account of the Sh¯ur¯a of ‘Uthman in Kitab Al-Bidaya wa-l-Nihaya (2015) 47 International Journal of Middle East Studies 303; S A Hussaini, ‘The Sh¯ur¯a’ (1955) 3(2) Journal of the Pakistan Historical Society 151; Uriya Shavit, ‘Is Sh¯ur¯a a Muslim Form of

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122. 123. 124. 125. 126. 127.

128. 129. 130. 131.

132. 133.

134.

135. 136.

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Democracy? Roots and Systematization of a Polemic’ (2010) 46 (3) Middle Eastern Studies 349. El-Fadl, ‘Constitutionalism and the Islamic Sunni Legacy’, above n 121, 85–6. Mohammad Hashim Kamali, Freedom of Expression in Islam (Islamic Texts Society, 1997) 40. Ibid. Rahman, above n 121, 5. The Holy Qur’an, Ash-Sh¯ur¯a (42:38). Ahmad Al-Rays¯un¯ı, Al-Sh¯ur¯a: The Qur’anic Principle of Consultation (Nancy Roberts trans, International Institute of Islamic Thought, 2011) 5. Ibid. Spectorsky, above n 29, 204. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 4, 275; al-Margh¯ın¯an¯ı (Nyazee trans), above n 63, 496. See Adila Abusharaf, ‘Women in Islamic Communities: The Quest for Gender Justice Research’ (2006) 28(3) Human Rights Quarterly 714, 719; Amanda Keddie, ‘Giving Muslim girls “a voice”: the possibilities and limits to challenging patriarchal interpretations of Islam in one English community’ (2009) 17(3) Pedagogy, Culture & Society 265. Zanariah Noor, ‘Gender Justice and Islamic Family Law Reform in Malaysia’ (2007) 25(2) Kaijan Malaysia 121, 132. Hiba Ra’uf, Woman and Political Work: An Islamic Perspective (International Institute of Islamic Thought, 1995); Ellen McLarney, ‘The Private Is Political: Women and Family in Intellectual Islam’ (2010) 11(2) Feminist Theory 129, 138. Shaykh Mufti Muhammad ibn Adam al-Kawthari is a former student of contemporary Hanaf¯ı scholar, Shaykh Mufti Muhammad Taqi Usmani. Muhammad ibn Adam al-Kawthari, Al-Arba‘¯ın: Elucidation of the Forty Had¯ıths on Marriage (Turath Publishing, 2013) 62. Ibid.

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137. Justice Mufti Muhammad Taqi Uthmani, compiled and edited by Mahomed Shoaib Omar, Contemporary Fatawa (M S Omar, 1999) 86. 138. Mufti Ebrahim Desai (Hafidhahullah), Contemporary Fatawa: Volume 2 (Darul Iftaa Mahmudiyyah, 2015) 186. 139. Ibid. 140. Desai, above n 138, 246. 141. Ibn Nujaym, al-Bahr al-Ra’iq (Cairo, 1968) vol 3, 117; Burhanpur, Al-Fatawa al‘Alamgiri in Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174 nn 7–8. 142. Sheikh Nizam Burhanpur, Al-Fatawa al‘Alamgiri in Siddiqui, ‘The Concept of Wil¯aya in Hanaf¯ı Law’, above n 93, 174 nn 7–8. 143. Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change (Princeton University Press, 2002) 20–1. 144. Al-Kawthari, above n 135, 55–7. 145. Al-Kawthari, above n 135, 55–7; Desai, above n 138, 186. 146. Ali, above n 36, 37–8. 147. Al-Kawthari, above n 135, 60–1. 148. See for example Al-Kawthari, above n 135, 63. 149. Al-Kawthari, above n 135, 64. 150. Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law’ in Omid Safi (ed), Progressive Muslims: On Justice, Gender, and Pluralism (Oneworld Publications, 2003) 163, 165.

4 Law in Context: Pashtun Culture and ‘Secular’ Laws in Khyber Pakhtunkhwa

To keep the primary focus of this book firmly on Pashtun consentseeking from the perspective of Hanaf¯ı legal doctrine, the broader cultural and non-shar¯ı‘a legal contexts have been relegated to this chapter on law in context . Pashtuns do not exist solely as Muslims, but also as fierce participants of their culture (albeit to varying individual degrees), as well as being both national and global citizens. As such, the nonshar¯ı‘a contexts in which Pashtun Muslims exist must be examined alongside any investigation of cultural practice such as this. When compared to scholarly literature relating to any aspect of Islam, detailed works relating to Pashtuns and Pashtun culture are found to a much lesser degree. This is not surprising given the relatively unfamiliar status that Pashtun culture holds within both general and academic discourse worldwide. However, the dearth of such literature means that studies like this become all the more valuable from both an Islamic and secular normative research perspective. This chapter will contextualise the specific cultural milieu in which the Hanaf¯ı legal principles detailed in the previous chapter must apply. The next section will examine the culture at hand, in order to illustrate the strength of Pashtun cultural norms and values, particularly in terms of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_4

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the roles and the expectations placed upon those born into the culture. This is followed by an examination of the non-shar¯ı‘a legal context— that is, the provincial, federal, and universal legal context; in particular, the comparatively anaemic effect that national and universal legislative instruments have historically had on the cultural practices of Pashtuns in Khyber Pakhtunkhwa (and Pakistan more generally).

The Cultural Context: Pashtun Muslims of Khyber Pakhtunkhwa There is absolutely no difference between your law and his custom in object and purpose… You call it law and keep it in big books. He calls it custom and keeps it in his wife’s treasure chest. You have to be either a judge or a criminal to know your law. He knows his customs before he knows how to eat. It is bred in him. It is mixed in his bones and works in his liver. He does not have to go to a learned man in a wig to know the law against which he sinned. He knows it as soon as he does it. He is his own judge and jailer. His ancestors have seen to it that it is so. Khan Abdul Ghani Khan on Pashtun culture. (The Pathan)1

‘Khyber Pakhtunkhwa’: The Land of Pashtuns One of the four provinces of Pakistan, Khyber Pakhtunkhwa (KPK) is situated at the ‘juncture’ of South Asia, Central Asia, and China.2 Pashtuns, or Pukhtuns3 constitute the largest ethnic group in the province, and their geographical entrenchment in the region is reflected in the name of the province itself.4 Smaller populations of Pashtuns can also be found in the Pakistani provinces of Balochistan and Punjab, as well as throughout neighbouring Afghanistan, although Pashtuns are considered a minority ethnic group in these regions.5 Pashtuns are also a majority in what was previously known as the Federally Administered Tribal Areas (FATA) of Pakistan, which lie along the southwest border of KPK, made up of ‘agencies’ and frontier regions.

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Up until 2018, the FATA was a semi-autonomous region that did not form part of KPK either ‘technically or constitutionally’,6 but remained culturally tied to the province due to geographical proximity and the majority Pashtun population in the area. In 2018, these semiautonomous regions were constitutionally merged with the province following the passing of the 25th Constitutional Amendment Bill 2018 (Khyber Pakhtunkhwa),7 albeit with significant challenges and limited success in its implementation in the three years since.8 Historically, the geographical spread of Pashtuns across the border into Afghanistan was the result of the ‘Durand Line’ agreement in 1896, which saw a boundary drawn through Pashtun tribal lands, demarcating the ‘North West Frontier Province’ (now Khyber Pakhtunkhwa), in order to protect British interests in India along the Afghan front. However, due to bloody and ongoing resistance, the former FATA region was never successfully administered by British colonial rule and remained under the control of Pashtun tribes.9 The colonial-era boundary was subsequently inherited by Pakistan upon Muslim independence from majority Hindu India in 1947—and still exists as the international border between Pakistan and Afghanistan today.10 In 1897, anger resulting from the Durand Line boundary led to the ‘most formidable’ Pashtun uprising against British India, and the border remains unrecognised by Afghan heads of state to this day.11 As we will see in the following sections, this brutal tribal history permeates modern Pashtun identity and cultural ideation, fostering a historical pride that has directly influenced the extent to which culture is venerated over generations. In Pakistan, Pashtuns form the second largest ethnic group in the country (at approximately 15.5%), the majority of whom live in KPK.12 Interestingly, researchers have found that KPK exhibits strong markers of national identity, indicating that Pashtuns in KPK identify as Pakistani, and with Afghanistan only in terms of shared history and lineage.13 Thus, in the century since the Durand Line agreement, Pakistani Pashtuns have come to form a strong national identity alongside their historically entrenched cultural identity.14 It is therefore important to understand the national and cultural demarcation between Pakistani

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and Afghan Pashtuns, as this book focuses exclusively on Pashtuns in the Pakistani province of Khyber Pakhtunkhwa, distinct to the Pashtun cultural context of Afghanistan.

Pashtun Culture and the Pashtun Code of Honour Pashtun culture itself is one of significant complexity. Pashtuns are an ancient people, historically tribal and warrior-like.15 These traits are reflected in the strength of their cultural norms and values, most of which are enshrined in a pre-Islamic code of honour called Pashtunwali (or Pukhtunwali).16 This cultural code is all-encompassing, and for Pashtuns, adhering to Pashtunwali is to ‘do Pashto’ as a way of life.17 Pashtunwali encompasses values that act as social guidelines, as well as aspects that operate as a successful, yet decentralised, form of customary law and defence.18 At the individual level, Pashtunwali has been labelled the ‘most uncompromising set of ideals ever devised’—the majority of which relate directly to the preservation of honour.19 Individual honour is of ‘paramount importance’ to Pashtuns.20 Yet, while honour operates as a social guideline for men and women, it does not necessarily operate at a strictly individual level for all Pashtuns. Scholarly observations have demonstrated that, in a practical sense, Pashtun men hold female relatives responsible for upholding their honour, although this is not a burden that is reciprocal upon male relatives regarding female honour.21 In other words, ‘as [a] male attribute honour is achieved, as female it is ascribed. The former can and must be defended or regained, the latter must be maintained by modesty. Once lost it cannot be regained’.22 The maintenance of honour manifests in the cultural value placed upon demonstrable modesty and shame, particularly from women.23 This extends to observable ‘shyness of demeanour’ and the avoidance of ‘loud speech and laughter’—traits embodied by the ‘ideal’ Pashtun woman.24 Unmarried and younger Pashtuns, particularly girls, are also ‘seldom consulted regarding important family decisions’ due to these idealised demonstrations of modesty, and the expectation for women to ‘live according to prevailing norms, cultural values, and the tribal code’.25

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The value upon modesty and shame extends to the movement of the genders in Pashtun society as purdah (the veiling of women), both in terms of the chadar (veil) and the chardiwari (the ‘four walls’ of the house), is an entrenched cultural norm that exists for the maintenance of honour.26 Through purdah, the ‘primacy’ of a man is protected, and his honour and integrity remain intact, safe from public scrutiny and judgement.27 Due to freer movement in public spaces, Pashtun men have greater social agency and are able to participate in social and economic life to a much greater extent than women.28 Consequently, males are generally considered ‘assets’ to Pashtun families and are more sought after as offspring than females.29 Indeed, researchers have found that KPK exhibits ‘strong’ masculinity and ‘weak’ femininity in terms of the cultural norms and behaviours of its people.30

‘Pukhtu Is Half Infidelity’: Pashtun Culture and Islam Interestingly, the vast majority of Pashtuns believe that the strict enforcement of gender relations in Pashtun culture accords entirely with Islam.31 The Pashtuns of KPK are overwhelmingly Muslim (approx. 99.5%), and ‘Muslimness is acquired by birth’ in Pashtun culture.32 It is possible to narrow this ‘Muslimness’ further, as Pashtuns almost entirely ‘were and are’ adherents of the Hanaf¯ı school of Sunni thought.33 This Hanaf¯ı majority is reflected throughout Pakistan as well; approximately 95% of Pakistanis are Sunni Muslim, the majority of whom ‘adhere overwhelmingly to the Hanaf¯ı school’ of thought.34 The intertwining of culture and religion extends beyond gender relations to Pashtun culture as a whole. Syed Waqar Ali Shah asserts that Islam is ‘one of the principal constituents’ of Pashtun self-definition, where the ‘Muslim way of life and [Pashtun] tradition’ are considered complementary attributes of identity.35 Particularly relevant to this is the Pashtunwali requirement of shariat , which requires strict adherence to Islam. Numerous scholarly works have found that Pashtuns do not consider Pashtunwali as being distinct from, or contradictory to, the tenets of Islam.36 For example, Aamir Jamal found that the lowest female enrolment figures in Pakistan emerged in KPK, and that religion was

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often cited by Pashtun men as justification for the cultural resistance to female education.37 However, it is generally accepted in the literature that Pashtun norms are not reflective of Islamic principles in every case, and may ‘clash’ with shar¯ı‘a both in spirit and in legality.38 As a result, the perceived complementarity leads to the existence of ‘cultural practises which the religion defines as “right” but Pashtunwali considers as “shameful”, and vice versa’.39 Relevant to this study, scholars argue that Pashtuns may often be ‘conscious’ of the divergence of cultural practice from Islam, and actively ‘choose one over the other’, generally favouring culture and Pashtunwali above religion.40 Sultan-i-Rome explains that Pashtuns often violate shariat , despite its being an intractable aspect of Pashtunwali, tailoring Islam to fit culture instead.41 On this, he quotes various Pashto sayings as, ‘Pukhtun believe in only half of the Quran’, and ‘Pukhtu is half infidelity’—all of which indicate a general cognisance of the ways in which culture diverges from religion among Pashtuns.42 In this book, we explore whether such a situation exists in relation to consent-seeking norms and practices in Pashtun culture. The next section examines extant literature on marriage in Pashtun culture.

Marriage in Pashtun Culture Jeanne Berrenberg notes that Pashtun culture is ‘not a very popular subject of study for those anthropologists specialising in kinship and marriage’.43 While academic literature specifically pertaining to Pashtun marriage is sparse, an overall picture of Pashtun marriage can be determined from the literature that does exist. Previous research into Pashtun culture concludes that Pashtun society is patrilineal.44 However, scholars have found that male and female siblings are generally treated equally, and that the marriage of both sons and daughters are used to create bonds between families.45 Berrenberg notes that Pashtuns exhibit an ‘obvious’ preference for marriage within the extended family unit (consanguineous marriage), which manifests to a greater extent among economically or politically weaker families.46 Although consanguineous marriage is often contracted to ‘cement blood

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relations’ between family members,47 Pashtun marriage patterns do not revolve around kinship itself. Marriage is influenced to a larger degree by external variables relating to family, such as economy and politics.48 Sthanadar, Bittles, and Zahid assert that wealth, and expense, constitutes one reason for the prevalence of consanguineous marriage in Pashtun culture.49 In addition to consanguineous marriage, marriages that are ‘arranged’ by parents are exceptionally prevalent in Pashtun culture.50 This is particularly true for women, and Jamal explains that from the time a Pashtun girl is born, ‘men start practising their decisive role in the most important issues of her life, from education to selection of her husband’.51 Unmarried Pashtuns, particularly women, do not generally contribute to any significant degree in marriage or spousal decision-making, which is often undertaken unilaterally by parents.52 Due to the cultural expectation for acquiescence to the desires of parents, it is not uncommon for children to simply accept the decisions of their parents and for spouses to meet for the first time at their wedding. For example, two well-known cultural maxims often employed when a Pashtun refuses to marry a spouse chosen by their family, or to honour a childhood betrothal, include: ‘Khalaq ba sa wai? ’ (‘What will the people say?) and ‘Da stargo garawalo na ba woozoo’ (‘We would not be able to face the people’).53 The expectation for silence and acquiescence has also led to the prevalence of early marriage in some parts of KPK.54 Marriage arranged without consent is so prevalent in Pashtun culture that it features in Pashto landay (poetic lament): ‘‫ ﺭﻭ ک یﺩ یﺍﺩﺥ ﻥﺍﺭﻭ ﻩړ ک ﻩﺯ ﻭﺥ ﺍﺕ ﺱ ﺭﻭ ﻝ ﻩﻡﻭ‬------------- !‫ﻩﺯ یﺩ ﻩ پ ﻭړﺯ یړﺱ ﻡړ ک ﻩڅﺭﺥ ﻩﺭﺍﻝ پ‬

Translation: ‘You sold me to an old man, father. May God destroy your home, I was your daughter’.55

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Pashtuns also differentiate between arranged marriage and ‘love marriage’ with regard to how a marriage is contracted. The former is a strongly entrenched cultural norm, whereby parents decide upon a spouse, and arrange marriage with the family of the prospective spouse accordingly. A ‘love marriage’ is one in which the spouses choose each other for marriage. Arranged marriage is more acceptable than love marriage in Pashtun culture; the latter process often leading to violence against women and, in extreme cases, ‘honour killing’ if rejected by the family. According to a World Report from Human Rights Watch, Pakistani human rights non-governmental organisations (NGOs) estimate that there are approximately one thousand honour killings every year in Pakistan.56 It is important to note that neither consanguineous marriage, nor arranged marriage, contravene Islamic legal principles in and of themselves, but that some Pashtun marriage practices do. The existence of a divergence between Pashtun marriage practices and Islamic legal principles is asserted in much of the scholarship. Naz and Rehman argue that there are numerous violations of Islamic legal principles in Pashtun culture, including violations specifically relating to the contracting of marriage.57 Many of these stem from the unilateral nature of parental authority in the marriage process, as well as female reliance upon men to undertake private affairs outside the home.58 For example, engagements and marriage often occur without the consent of women and ‘their likesdislikes have no such importance’ in decision-making.59 These cultural practices appear to violate the Islamic requirement of consent and the jurisprudential encouragement to engage in sh¯ur¯a before contracting marriage. Previous research has also found that there are two types of Pashtun marriage which bear the hallmarks of religiously prohibited forced marriage. The first was mentioned earlier, where marriage is arranged for a woman without her consent. The second is the practice of swara, where a woman is forced to marry into another family to settle a feud or wrong committed by males in her own family.60 This type of marriage resonates with the pre-Islamic Arabian custom of shigh¯ar, a practice expressly prohibited in Islamic law and evidenced in the had¯ıth literature.61

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Some scholars have argued that marriage arranged without consent prima facie operates as forced marriage in Pashtun culture.62 The literature contends that such marriage is more common for Pashtun women than men, as patriarchal values positively deny women the right to consent, despite it being religiously conferred.63 The cultural practice in which a woman is expected to forfeit her consent to a male (wake ektyar ) is another example of this.64 Wake ektyar is the practice in which a male, often an uncle or cousin, undertakes the role of ‘Nik¯ah plaar ’ (trans: ‘Nik¯ah father’) in the marriage process; the word ‘father’ is used figuratively in this context. The Nik¯ah plaar primarily relays consent from the woman, who remains subject to physical purdah, to the religious authority conducting formal marriage proceedings—a practice that explicitly contravenes the religious obligation upon biological fathers, as natural wal¯ı, to represent their daughters in marriage. Interestingly, none of the literature reviewed on marriage in Pashtun culture examines the role of the Nik¯ah plaar from a religious legal perspective. I address this significant gap in the literature in Chapter 7, where my findings on the Nik¯ah plaar are analysed against the Islamic role of wal¯ı in detail. In essence, the overriding factors keeping marriage out of the hands of a Pashtun woman are honour and shame; she must uphold the honour of her family and avoid shaming her family, both of which are achieved by adhering to their will.65 It is perhaps significant that Pashtun culture seems to perceive marriage as a consequence, rather than a beginning, for those involved.66 This is in stark contrast to the Islamic view, where marriage is often described in terms of mutual love and affection between those getting married.

Marriage Consent Operative in the Law The previous section provided some context to the culture with which this study is concerned. As marriage consent among Pashtun Muslims does not operate in a religious or cultural vacuum, this chapter considers the non-shar¯ı‘a laws that also exist to govern the marriage of Pashtuns as Pakistanis, and as global citizens. In this chapter, the similarity between Hanaf¯ı legal doctrine and universal human rights will become clear to the

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reader, as both legal systems render non-consensual marriage unlawful and invalid, contradicting the popular view that forced marriage is condoned in Islam and counter to secular human rights alone. Importantly, this chapter describes the broader legal context for law reform in Pakistan, and whether it is legislatively possible to bring cultural practice in line with both religious and universal human rights law. In particular, we look at the unique tensions that exist in shar¯ı‘a-compliant nations when provincial or federal laws are subject to amendment or reform, such as the Islamic Republic of Pakistan, which constitutionally declares shar¯ı‘a the supreme law of the State. As will become clear in the following sections, all law in Khyber Pakhtunkhwa (and Pakistan more broadly) must reflect the principles of shar¯ı‘a in order to remain constitutionally valid. This constitutional requirement not only governs the substance of the legislation that governs marriage consent in Khyber Pakhtunkhwa, but from a normative legal perspective, is also an ‘identifiable purpose’ that the law must serve in the province—thereby providing an external standard, distinct from Hanaf¯ı legal principles on consent-seeking, for evaluating the effectiveness of existing legislation to achieving its constitutional aims (i.e., preventing non-consensual marriage or consent-seeking practices that contravene the spirit or letter of Hanaf¯ı law/jurisprudence in KPK). This entanglement of two legal systems sets up the case for law reform that is justified by explicit Islamic principles in order to be effective in the context of KPK—which was a key finding of this study. The rest of this chapter will place the issues of consent-seeking and law reform in KPK within the wider legal context, including the relevant federal, provincial, and international laws that exist to govern marriage consent in the province.

An Overview of the Laws Governing Marriage Consent in Pakistan and Khyber Pakhtunkhwa Various federal legislative texts operate to govern marriage in Khyber Pakhtunkhwa. Relevant to the issue of marriage consent specifically are

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the Constitution of the Islamic Republic of Pakistan 1973 (Pakistan) (hereafter ‘Constitution of Pakistan 1973’)67 and the Child Marriage Restraint Act (Pakistan) (hereafter ‘CMRA’).68 In addition to declaring equality between the sexes, Article 25(3) of the Constitution provides for the State to make special provision for the protection of women and child citizens, and Article 35 specifically provides for the protection of ‘the marriage, the family, the mother and the child’ by the State.69 Marriage is thereby constitutionally encompassed, particularly in the requirement of the State to protect marriage itself, in addition to the protection of women, children, and the family within its jurisdiction. It may be argued that any practice of marriage without consent as it exists in Khyber Pakhtunkhwa prima facie contravenes these constitutional provisions. Yet, these provisions and all provisions existing under any legislation in the State of Pakistan are constitutionally subject to conformity with shar¯ı‘a.70 The Constitution of Pakistan 1973, passed by the Pakistan National Assembly on 10 April 1973, incorporated the Objectives Resolution of 1949 in its original provisions.71 The Objectives Resolution was passed unanimously by the Constituent Assembly of Pakistan only two years after the formation of the nation State in 1947. It declared that the Constitution of Pakistan would embody the principles of ‘democracy, freedom, equality, tolerance and social justice as enunciated by Islam’ and would be a country in which ‘Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunna’.72 These provisions remain extant in the Preamble, and Articles, of the Constitution.73 Article 2 of the Constitution declares Islam the State religion of Pakistan,74 while Article 227 upholds the primacy of shar¯ı‘a within the operation and enforcement of Pakistani law, declaring that ‘no law shall be enacted that is repugnant’ to the injunctions of Islam.75 Article 203D subsequently empowers the Federal Shariat Court (FSC), a constitutionally empowered court of Islamic law, to examine and decide whether any law or provision contradicts the injunctions of Islam. If found to do so, the relevant law ceases in effect on the same day that the FSC decision takes effect.76 Interestingly, the FSC is required to

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represent as many madhhabs as possible in its consideration of federal and provincial laws, despite the Hanaf¯ı madhhab being the most widely practiced in Pakistan.77 The constitutionally determined primacy of shar¯ı‘a above all other law in Pakistan was also legislated in the Enforcement of Shar¯ı‘ah Act 1991 (hereafter ‘Shar¯ı‘ah Act ’). Article 3 of the Shar¯ı‘ah Act declares the ‘supremacy of shar¯ı‘ah’ in Pakistan, and states that the ‘injunctions of Islam shall be the supreme law’ of the nation.78 However, it is important to understand that although all law in Pakistan must reflect shar¯ı‘a, the provincial, federal, or even constitutional laws cannot be considered as part of shar¯ı‘a itself. Rather, such laws must be understood for what they are—non-shar¯ı‘a laws which merely embody shar¯ı‘a principles on the issue to which the specific law pertains. Shar¯ı‘a thereby overarches all laws that govern marriage, and marriage consent specifically, in Pakistan. However, the effect of this is not embraced by many rights advocates in Pakistan. As an example of the tension between religious and federal law pertaining to marriage, the federal CMRA specifically responds to the issue of child marriage in Pakistan. The Act defines a ‘child’ as a male under 18 years and a female under 16 years of age; while a ‘minor’ is defined as a male or female under 18 years of age.79 Marriage of a girl under sixteen thereby constitutes unlawful marriage of a child in KPK, with fines and imprisonment imposed upon any adult male who marries a child, the parents or guardian who allow their daughter to be married as a child, and the person who solemnises a child marriage.80 Yet, scholarly examination of the law regarding cases of child marriage in Pakistan show that child marriages are not rendered invalid under the provisions of the Act and merely subjects adult parties to the penalties stipulated.81 Despite contravening the CMRA, the continuing validity of a child marriage in Pakistan stems from the constitutionally enshrined primacy of shar¯ı‘a; because Hanaf¯ı legal doctrine permits the marriage of minors by guardians, child marriage remains valid in the State. However, according to the provisions of the Dissolution of Muslim Marriages Act, a female minor who is married without consent before the age of sixteen may apply for repudiation of the marriage before turning eighteen, provided the marriage remains unconsummated.82 Unfortunately, this

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imposes a high threshold for the dissolution of marriage in practical terms, particularly given that a higher lack of both social and sexual agency, and higher levels of physical and financial dependency, often characterise women who are married as minors in Pakistan. On consent pertaining to women of majority, the Pakistan Penal Code 1860 provides the most explicit prohibition of marriage without consent. Article 498B of the Code provides as follows: Whoever coerces or in any manner whatsoever compels a woman to enter into marriage shall be punished with imprisonment of either description for a term, which may extend to seven years or for a term which shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.83

Although the penalties provided in the Code are more severe than those imposed for child marriage, the enforcement of such penalties remain largely unseen in Pakistan, particularly in Khyber Pakhtunkhwa. In fact—as this study found—there is a recognised gap in the implementation and enforcement of national and international laws in Pakistan, both within the general population and scholarly literature. For example, Malé and Wodon determined that KPK exhibited the highest rates of child marriage in Pakistan and estimate that over 25% of girls up to the age of 18 are married as legal minors in the province.84 More recently, a United Nations report on child marriage in Pakistan found that approximately 1.1 million girls are married below the age of 18 in KPK, with an incidence percentage of up to 60% in some areas of the province.85 No figures on marriages contracted with or without consent were provided. However, it is evident that child marriage continues to be practiced in KPK, in spite of the laws and penalties that are operative in Pakistan.

Marriage Consent and Human Rights: International Legal Perspective Pakistan is also a signatory to numerous international treaties, four of which are relevant here. These include the Convention on the Elimination of All Forms of Discrimination against Women 1979 (acceded to by

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Pakistan 1996 with reservations) (hereafter ‘CEDAW’)86 and the International Covenant on Economic, Social, and Cultural Rights 1966 (ratified by Pakistan in 2008) (hereafter ‘ICESCR’).87 With specific reference to marriage consent, Article 16(1)(b) of CEDAW requires signatory nations to ensure that men and women only enter into marriage with ‘full and free’ consent in order to constitute lawful marriage within their jurisdictions.88 Article 16(2) provides that cultural ‘betrothals’ of children have no legal effect, apart from rendering the marriage of a child illegal under international law,89 and Article 16(2)(b) requires the compulsory registration of marriage—also mandatory under the federal Muslim Family Laws Ordinance (Ordinance No VIII of 1961) (Pakistan).90 Pakistan acceded to CEDAW in 1996, with the declaration that its accession would be subject to the provisions of the Constitution of Pakistan.91 In the preceding section, we saw that Pakistan’s Constitution provides for the supremacy of shar¯ı‘a above all other law. The accession of Pakistan to CEDAW subsequently falls within this paradigm; in other words, Pakistan’s international obligations under CEDAW are also subject to conformity with the injunctions of Islam per the provisions of its Constitution. Austria, Finland, Norway, Denmark, Portugal, Sweden, Germany, and the Netherlands objected to the generality of this declaration from Pakistan and the lack of specificity with regard to provisions of the Convention.92 However, none of the objecting countries expressed preclusion of their entry into the Convention with Pakistan, meaning that in effect, treaty relations remained possible between Pakistan (the reserving state) and the predominantly European objecting States.93 A National Commission on the Status of Women was subsequently formed in Pakistan, legislated under the National Commission on the Status of Women Act 2012 (Pakistan). The Committee holds the power to review and to suggest the repeal or amendment of any federal law that contravenes the international obligations of the State.94 Article 10 of ICESCR also requires marriage to be entered into with the ‘free consent’ of both parties, for the purpose of protecting the family unit.95 This provision acknowledges the impact that nonconsensual marriage may have upon those subject to such marriage, and upon the children born into them. Pakistan ratified the ICESCR with a

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general reservation in 2008, but subsequently withdrew this upon signature.96 The reservation from Pakistan stated that ‘all appropriate means’ would be used to progressively implement the rights of the Covenant.97 France and the Netherlands considered this reservation a mere declaration, devoid of legal effect upon the provisions of the Covenant, as the ICESCR provides for the progressive implementation of its own provisions. As it did with CEDAW, Pakistan stated that the provisions of the ICESCR would also be ‘subject to the provisions of the constitution of the Islamic Republic of Pakistan’98 —also objected to by other signatory States to the Covenant.99 Again, however, none of the objecting countries explicitly precluded their entry into the Covenant with Pakistan.100 On the other hand, Pakistan has neither ratified nor signed the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage 1962 (hereafter the ‘Marriage Convention’).101 While the Convention is not one of the core human rights treaties, and actually pre-dates CEDAW and ICESCR, the provisions of the Marriage Convention include the obligation to obtain consent before marriage, specification of a minimum age for marriage, and compulsory registration of marriage.102 Although Pakistan is not a signatory to the Marriage Convention, it must be noted that all of these provisions are also encompassed in the ICESCR and CEDAW treaties, to which Pakistan is a signatory, or are legislated for in the Births, Deaths, and Marriages Registration Act (Pakistan). It is clear then, that like its own federal and provincial laws, the universal legal instruments to which Pakistan is a signatory are also subject to the supremacy of shar¯ı‘a in the nation state. In theory, no law operates above the principles of Islamic law in the country. In practice, however, my findings will show that the supremacy of culture has effectively subverted the primacy of shar¯ı‘a, where not even international law has been provided such liberty.

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Marriage in Khyber Pakhtunkhwa: When Two Legal Systems Get Complicated The preceding sections briefly outlined the national and international provisions that exist to govern marriage consent in Pakistan. The question then arises—why is ‘change’ or law reform necessary in Khyber Pakhtunkhwa? This exact question was answered by the majority of the Pashtuns interviewed in this study, who believed reform to be necessary because the practice of non-consensual marriage falls beyond the reach of law in KPK, primarily due to inherent weaknesses in the implementation and enforcement of such laws in the province. An evident tension exists, therefore, between the implementation of federal and international laws that govern marriage, and the supremacy of shar¯ı‘a, in Khyber Pakhtunkhwa. This is largely reflective of a similar tension that exists in Pakistan generally.103 For example, the federal CMRA, still operative in Khyber Pakhtunkhwa, has been subject to numerous proposed amendments, such as those which sought to increase the marriageable age of females from 16 to 18 years of age nationally, and to increase penalties in cases of child marriage. These amendments were also proposed to the CEDAW Committee by the Asian Centre for Reproductive Rights, which recommended that Pakistan increase the penalties for child marriage, as well as increase the minimum marriageable age for females to reflect that of males (18 years) in accordance with Article 1 of CEDAW.104 However, these federal amendments failed to pass into law after being deemed ‘un-Islamic’ by the Senate.105 Following the 18th Amendment to the Constitution of Pakistan in 2010, issues such as marriageable age were subsequently relegated to provincial matters.106 Three years later, the Pakistani province of Sindh repealed the federal CMRA and raised the marriageable age of girls in the province to 18 years under the Sindh Child Marriage Restraint Act 2013.107 In contrast, the Khyber Pakhtunkhwa Child Marriage Restraint Bill 2016, which sought to increase the penalties for child marriage and to prevent the marriage of children, did not pass the Provincial Assembly.108 Since then, the Provincial Assembly has rejected and delayed the passage of more recent versions also seeking to raise the marriageable age of girls in the province.109

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Interestingly, in 2019, the Khyber Pakhtunkhwa Provincial Assembly was lauded for unanimously passing a resolution to repeal the CMRA in the province, in order to support and enact legislation ‘in the light of Pakistan’s international and regional human rights-based obligations’, including raising the age of marriage for girls to 18 years.110 However, although a step in the right direction, the resolution is not binding in implementation. Indeed, the lack of any binding enforceable change to the CMRA is evident in the continued failure of any proposed legislation that attempts to raise the marriageable age of girls in KPK. Subsequently, no provincial legislation yet exists to govern marriage consent in the province either.111 Importantly, all of these proposed legislative instruments have failed on the basis of contravening shar¯ı‘a. Proposed amendments to the CMRA have been termed ‘blasphemous’ by the Council of Islamic Ideology (CII) —another constitutional body tasked with the provision of religious legal advice to the legislature—due to the fact that legally prohibiting the marriage of girls under 18 years of age would contradict the Islamic allowance for marriage upon puberty.112 The failure of these amendments on the basis of contravening shar¯ı‘a demonstrates the tension that exists in the legislative process in Pakistan. This tension between religious and ‘secular’ laws may also contribute to a general confusion among Pakistanis, leading to divergences between culture and religion on other issues of religious legality. As the findings of this study will show, some Pashtuns believe that their cultural practices do not contravene religious doctrine, even where consent is not sought per Hanaf¯ı requirement. This perception is based on the belief that as long as Pashtun cultural practice does not enshrine ‘secular’ or ‘Western’ ideals and practices, then it naturally accords with the principles of Islam. A third option—in which cultural practice does not accord with either secular consent-seeking ideals or religious consent-seeking ideals—is frequently absent from such perspectives of consent-seeking in Pashtun culture. This belief is also reflected in scholarly literature and media analysis of issues such as non-consensual marriage (and child marriage) in Pakistan. For example, various academics and legal professionals have identified the weakness of current child marriage legislation; being that child marriage is not rendered invalid in Pakistan as a result of the constitutionally

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enshrined primacy of shar¯ı‘a.113 Laws such as the CMRA, which set the age of lawful marriage to 16 years for girls, are consequently flouted by many citizens on the basis of religious sanction. This is reflected in other legislative texts operative in Pakistan. For example, The Muslim Family Laws Ordinance 1961 (Pakistan) requires the compulsory registration of marriage and sets penalties for contravention.114 However, like child marriage, unregistered marriages remain valid in practical terms, as long as they are solemnised in accordance with Islamic marriage requirements. Similarly, as long as a religious Nik¯ah (marriage) contract exists, unregistered marriages also remain legal and valid under the Births, Deaths, and Marriages Registration Act (No. 9) 1886 (Pakistan). As a result, some Pakistani scholars have argued that the discordancy of federal and provincial laws with religious prescription has led to the misperception that many cultural practices are religiously prescribed, although they contravene secular and religious principles in actuality.115 For example, Akhunzada, Farhat Ullah, and Khan explain that children in KPK are ‘denied the opportunity’ to exercise choice in various aspects of their lives, including ‘when and whom’ to marry.116 Like the Pashtuns interviewed in this research, they attribute the acceptance of such cultural norms to the ineffectiveness of legislation and the lack of legal enforcement in KPK.117 These personal and scholarly perspectives both answer the question of why ‘change’ or law reform is necessary in Khyber Pakhtunkhwa.

Conclusion Thus, the overall picture of marriage in Pashtun culture is one that is directed by parents, with minimal involvement from those subject to the marriage itself. However, while the literature canvassed above demonstrates the prevailing situation in Pashtun culture regarding marriage, the collective literature does not examine the specific attitudes and beliefs that Pashtuns themselves embody with respect to consent-seeking in their culture. The reasons why Pashtuns hold beliefs that diverge from religious principles has not yet been researched in great detail. Pashtun practices and beliefs, specific to consent-seeking from a Hanaf¯ı jurisprudential

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perspective, also remain unexplored in the body of existing research on marriage in Pashtun culture. Further, this chapter illustrated the weakness of law in Khyber Pakhtunkhwa, particularly in terms of the unique tensions that exist between Islamic, and federal, provincial, and universal laws pertaining to marriage—as well as the gap that exists between law and the implementation and enforcement of it in the province. The implementation gap that exists in KPK leads to the question of whether law itself is an appropriate measure to enable the reform of consent-seeking practices among Pashtuns in KPK, and whether any such reform could bring such practices in line with both Islamic and universal human rights law. It is these gaps in the literature and in practice that I contend remain open to investigation, and which I attempt to address with my findings presented in the next part (Part II) of this book.

Notes 1. Khan Abdul Ghani Khan, The Pathan (University Book Agency, 1958) 27–8. 2. Sultan-i-Rome, The North-West Frontier (Khyber Pakhtunkhwa): Essays on History (Oxford University Press, 2013) 1. 3. Pashto dialect dictates individual usage of words like Pashto/Pukhtu—these are the ‘harder’ Yousafzai dialect which utilises the ‘kh’ sound, while the ‘softer’ Kandahari dialect uses the ‘sh’ sound. Both are commonly heard among Pashtuns in KPK, and many use the dialects interchangeably for common words like Pashto / Pukhtu and Pukhtunwali / Pashtunwali. 4. Government of Khyber Pakhtunkhwa, Demographics (2015) . 5. Muhammad Ayub Jan and Shahida Aman, ‘Islam and Pakhtunwali: Convergence and Divergence of Religious and Cultural Identities among the Pakhtuns of Pakistan’ (2015) 6(2) Peshawar Islamicus 15. 6. Sultan-i-Rome, above n 2, 4.

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7. The 25th Constitutional Amendment Bill 2018 (Khyber Pakhtunkhwa) was passed in the Khyber Pakhtunkhwa provincial assembly on 27 May 2018, for a merger of the Federally Administered Tribal Areas (FATA) with Khyber Pakhtunkhwa. The Assembly was ‘convened only to give its approval to the historic bill that would erase the colonial-era division between tribal areas and the province’, but has since been subject to much criticism due to the lack of improvement in the region following the merger. See Arif Hayat, ‘KP Assembly approves landmark bill merging Fata with province’, Dawn (online), 27 May 2018 ; Ghulam Ali, Muhammad Ilyas Ansari and Malik Firdous, ‘FATA Merger to Khyber Pakhtunkhwa: Problems and Prospects for Federalism in Pakistan’ (2020) 5(1) Global Political Review 224; Fida Mohammad and Muhammad Shafiq Khan, ‘FATA Reforms in Institutional Inertia’ (2017) 9(4) Pakistan Journal of Criminology 47, 50. 8. The challenges primarily stem from decades of destabilisation in the region—such as the numerous well-documented military operations in North Waziristan, South Waziristan, and Khyber Agencies post 9/11—and subsequently, the mass displacement of residents throughout much of the FATA region. See Imrana Begum, ‘FATA’s Merger with Khyber Pakhtunkhwa: An Historical Analysis’ (2018) 23(2) Pakistan Perspectives 127, 140–2. 9. Sultan-i-Rome, above n 2, 123. 10. Sultan-i-Rome, above n 2, 152–3. 11. See H L Nevill, Campaigns on the North-West Frontier (Sang-e-Meel Publications, reprint, 2003) 209 in Sultan-i-Rome, above n 2, 153 nn 5. 12. S A M Shah and Shehla Amjad, ‘Cultural Diversity in Pakistan: National vs Provincial’ (2011) 2(2) Mediterranean Journal of Social Sciences 1. 13. Ibid 12–3. 14. Andreas Dürr, ‘Enjoining Good and Forbidding Evil—Islamic Education and Local Traditions in Afghanistan’ (2016) 138 The German Journal on Contemporary Asia 89; Caspar ten Dam,

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15.

16.

17.

18. 19.

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‘Matthias Weinreich: “We Are Here to Stay”—Pashtun Migrants in the Northern Areas of Pakistan’ (2015) 16 International Migration & Integration 841. Bruce L Benson and Zafar R Siddiqui, ‘Pashtunwali—Law for the Lawless, Defense for the Stateless’ (2014) 37 International Review of Law and Economics 108, 112. Pashtunwali comprises of cultural norms and expectations that are embodied in various components of the code, including badal (retaliation or revenge for any insult or injury—and lack of retaliation or revenge is considered extremely shameful), melmastya (guarantee of hospitality to friend, stranger, traveller, and even enemy), badragah (guarantee of safe conduct/escort to friend, stranger, traveller, and enemy), jirga (respecting and upholding the decisions of the tribal chiefs or elders), nang (defence of honour and homeland), riw¯aj (adherence to custom and customary law), toor (lack of tolerance and punishment for the crimes of adultery and illicit relations), panah (guaranteed asylum to any who asks for it), nanawatay (respect for the end to bloodshed in a peaceful manner where the guilty party ‘admits guilt, expresses shame, and throws himself ’ at the mercy of his adversary), pighur (concerted protection of reputation from the remarks and insult of others), kalay kalwighi (participation in all aspects of communal life, including weddings, betrothals, funerals, and visiting the sick), tarburwali (fighting alongside family to defend honour, and fighting within family to protect interests—the word tarbur means both ‘cousin’ and ‘enemy’ in Pashto), and shariat (adhering to Islamic law). These components of Pashtunwali primarily relate to the concept of honour in Pashtun culture. See Sultan-i-Rome, above n 2, 91–114; Benson and Siddiqui, above n 15, 112–6. Zeeshan Khan, ‘Doing Pashto’ (2015) 30(4) Wasafiri 15. Pashto, or Pukhtu, is the main language of Pashtuns in KPK. Khan describes the Pashtun code of honour as not only a set of ‘uncompromising ideals’—but as a representation of the entirety of a Pashtun, down to the language he or she speaks. Benson and Siddiqui, above n 15, 108–16. Khan, above n 17, 18.

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20. Benson and Siddiqui, above n 15, 112. 21. Hafiz Hifazatullah et al, ‘Attitude of Religious Concerns Towards Women Emancipation in Tehsil Takht-Bhai’ (2011) 3(3) Interdisciplinary Journal of Contemporary Research in Business 1135. 22. Jeanne Berrenberg, ‘Beyond Kinship Algebra. Values and the Riddle of Pashtun Marriage Structure’ (2003) 128 Zeitschrift fur Ethnologie 269, 280. 23. Noor Sanauddin, Jamil Ahmad Chitrali and Shakeel Ahmad, ‘Chadar and Chardiwari: An Outline of Pashtun Patriarchy’ (2015) 22(2) PUTAJ Humanities and Social Sciences 63, 64, 67. 24. Ibid 68. See also Aamir Jamal, ‘Why He Won’t Send His Daughter to School—Barriers to Girls’ Education in Northwest Pakistan: A Qualitative Delphi Study of Pashtun Men’ (2016) Sage Open Publications 1, 3. 25. Jamal, above n 24; Sanauddin, Chitrali and Ahmad, above n 23, 65. 26. Sanauddin, Chitrali and Ahmad, above n 23, 68–9. 27. Fredrik Barth, Political Leadership among Swat Pashtuns (Athlone Press, 1959) 77. 28. Qaiser Khan, ‘Understanding Gender in Pak-Afghan Pashtun Society: A Sociolinguistic Analysis of Folk Stories’ (2017) 15(1) NUML Journal of Critical Inquiry 108, 112–3. 29. Ibid; Sanauddin, Chitrali and Ahmad, above n 23, 67; Jamal, above n 24, 2. 30. Shah and Amjad, above n 12, 6. 31. Jan and Aman, above n 5, 20. 32. Pakistani Bureau of Statistics, Population by Religion (2018) Government of Pakistan ; Jan and Aman, above n 5, 18. 33. Sana Haroon, ‘Competing Views of Pashtun Tribalism, Islam, and Society in the Indo-Afghan Borderlands’ in Nile Green (ed), Afghanistan’s Islam (University of California Press, 2017) 145, 155; ten Dam, above n 14, 842. 34. Laurel J Hummel and Richard L Wolfel (eds), Understanding Pakistan Through Human and Environmental Systems (United States Military Academy, 2011) 54; United Nations High Commissioner

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35.

36.

37. 38. 39. 40. 41. 42. 43. 44.

45. 46. 47. 48. 49.

50.

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for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities in Pakistan, The UN Refugee Agency, HCR/EG/PAK/12/02 (14 May 2012) 3. Syed Waqar Ali Shah, Ethnicity, Islam and Nationalism: Muslim Politics in the North-West Frontier Province 1937–1947 (Oxford University Press, New York: 1999) 34. Jan and Aman, above n 5, 18–20; Sanauddin, Chitrali and Ahmad, above n 23, 67–8. See also Arab Naz and Hafeez-ur-Rehman, ‘Pakhtunwali Versus Islam: A Comparative Analysis of Women’s Rights in Islam and their Violation Under Pakhtunwali (Pakhtun Code of Life) in Khyber Pakhtunkhwa Pakistan’ (2011) 1(2) International Journal of Humanity and Social Sciences 22, 23; Ghulam Shams-ur-Rahman, ‘Pashtunwali and Islam: The Conflict of Authority in the Traditional Pashtun Society’ (2015) 35(1) Pakistan Journal of Social Sciences 297, 304. See Jamal, above n 24, 6–7. Sanauddin, Chitrali and Ahmad, above n 23, 67. Sanauddin, Chitrali and Ahmad, above n 23, 67–8. Jan and Aman, above n 5, 20. Sultan-i-Rome, above n 2, 109. Sultan-i-Rome, above n 2, 110. Berrenberg, above n 22. Berrenberg, above n 22, 269; Armando Geller, Joseph F. Harrison, and Matthew Revelle, ‘Growing Social Structure: An Empirical Multiagent Excursion into Kinship in Rural North-West Frontier Province’ (2011) 5(1) Structure and Dynamics 1, 6. Geller, Harrison and Revelle, above n 44, 6. Berrenberg, above n 22, 270. Sanauddin, Chitrali and Ahmad, above n 23, 67. Berrenberg, above n 22, 275. See Aftab Alam Sthanadar, Alan H Bittles and Muhammad Zahid, ‘Civil Unrest and the Current Profile of Consanguineous Marriage in Khyber Pakhtunkhwa Province, Pakistan’ (2014) 46 Journal of Biosocial Science 698, 698–700. See Sanauddin, Chitrali and Ahmad, above n 23, 66.

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51. Jamal, above n 24, 3; Arab Naz, Irum Sheikh, Waseem Khan and Gohar Saeed, ‘Traditional Wedding System and Marriage by Elopement among Kalasha Tribe of District Chitral, Khyber Pakhtunkhwa, Pakistan’ (2015) 9(1) FWU Journal of Social Sciences 59. 52. Berrenberg, above n 22, 269; Sanauddin, Chitrali and Ahmad, above n 23, 67. 53. Naz and Rehman, above n 36, 27. 54. Umar Daraz, Arab Naz and Waseem Khan, ‘Early Marriage: A Developmental Challenge to Women in Pakhtun Society’ (2014) 8(1) FWU Journal of Social Sciences 91; Chata Malé and Quentin Wodon, ‘Basic Profile of Child Marriage in Pakistan’ (2016) The Health, Nutrition and Population Knowledge Briefs of the World Bank . 55. Fahim Rahimi, ‘Landay as the Voice of Pashtun Women’s Passion and Social Life’ (2017) 2(3) Journal of Research Initiatives 1, 3. 56. Human Rights Watch, World Report 2021: Pakistan Events of 2020 (2021) ; Sanauddin, Chitrali and Ahmad, above n 23, 66; Syed Hassan Raza and Mahmoona Liaqat, ‘Honor Killing of Women: A Comparative Study of the Pakistani Print Media’ (2016) 10(1) VFAST Transactions on Education and Social Sciences 1, 2–3. According to The Centre of Islamic and Middle Eastern Laws (CIMEL), and The International Centre for the Legal Protection of Human Rights (INTERIGHTS), honour killing is a ‘crime of honour’, which is defined to include, ‘a variety of manifestations of violence against women, including “honour killings”, assault, confinement or imprisonment, and interference with choice in marriage, where the publicly articulated “justification” is attributed to a social order claimed to require the preservation of a concept of “honour” vested in male (family and/or conjugal) control over women and specifically women’s sexual conduct: actual, suspected, or potential. …’: Lynn Welchman and Sara Hossain, ‘Introduction’ in Lynn Welchman and Sara Hossain (eds), ‘Honour’: Crimes, Paradigms, and Violence against Women (Zed Books, 2005) 1. 57. Naz and Rehman, above n 36, 30.

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58. Mudasir Lone, ‘Gender and Society: Pakhtoon Women of Afghanistan, Pakistan and Kashmir Valley: A Comparison’ (2014) 2(1) International Journal of Multidisciplinary Research in Social and Management Sciences 84, 89. 59. Naz and Rehman, above n 36, 30. 60. Abdul Qadeer, ‘The Status of Women in FATA: A Comparison Between Islamic Principles and Pashtunwali’ (2014) 1(7) International Journal of Research 1231, 1263. 61. Shigh¯ar is a practice condemned by Prophet Muhammad in every had¯ıth collection, with the most resounding quote from the Sunan Ibn Majah stating, ‘there is no shigh¯ar in Islam’. Sunan Abi Dawud 2074, Book 12, Had¯ıth 29 explains shigh¯ar as follows: ‘(It means that) a man marries the daughter of another man and gives his own daughter to him in marriage without fixing dower’. For had¯ıth on the prohibition of shigh¯ar in Islam, see S.ah.¯ıh. al-Bukh¯ar¯ı 5112, Book 67, Had¯ıth 49; S.ah.¯ıh. Muslim 1415–1416b, Book 16, Had¯ıth 67–72; Sunan Abi Dawud 2074–2075, Book 12, Had¯ıth 29–30; Jami at-Tirmidh¯ı 1123–1124, Book 11, Had¯ıth 45–46; Sunan an-Nasa‘i 3334–3338, Book 26, Had¯ıth 139–143; Sunan Ibn Majah (English reference) vol 3, Book 9, 1883–1885; and Muwat..ta M¯alik, Book 28, Had¯ıth 24. 62. Naz and Rehman, above n 36, 26; Arab Naz et al, ‘The Relational Anayses of Pakhtun Social Organisation (Pakhtunwali) and Women’s Islamic Rights Relegation in Malakand Division, KPK Pakistan’ (2012) 4(3) International Journal of Sociology and Anthropology 63, 68. 63. Jan and Aman, above n 5, 16–7. 64. Naz and Rehman, above n 36, 27. 65. Naz and Rehman, above n 36, 27. 66. Berrenberg, above n 22, 277. 67. Constitution of the Islamic Republic of Pakistan 1973 (Amended by the Constitution Twenty Fourth Amendment Act 2017) (Pakistan) (‘Constitution of Pakistan 1973’). 68. Also operative with respect to marriage (and divorce) generally are the Muslim Family Laws Ordinance (Ordinance No VIII of 1961) (Pakistan) (‘Muslim Family Laws Ordinance’); Births, Deaths and

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69. 70. 71. 72. 73. 74. 75. 76. 77.

78. 79.

80.

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Marriages Registration Act (Act No 9 of 1886) (Pakistan) (‘Births, Deaths and Marriages Registration Act ’); Guardians and Wards Act 1890 (Act No VIII of 1890) (Pakistan) (‘Guardians and Wards Act ’); The Dissolution of Muslim Marriages Act 1939 (Act No VIII of 1939) (Pakistan) (‘Dissolution of Muslim Marriages Act ’); Protection of Women (Criminal Laws Amendment) Act 2006 (Act No VI of 2006) (Pakistan) (‘Protection of Women Act ’); The Dowry and Bridal Gifts (Restriction) Act 1976 (Act No XLIII of 1976) (Pakistan) (‘Dowry and Bridal Gifts (Restriction) Act ’); Enforcement of Shari’ah Act 1991 (Act X of 1991) (Pakistan) (‘Shari’ah Act ’); The Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No VII of 1979) (Pakistan) (‘Offence of Zina Ordinance’). Constitution of Pakistan 1973 arts 25(1), 25(3), 35. Constitution of Pakistan 1973 art 227. Islamic Research Institute, ‘The Objectives Resolution’ (2009) 48(1) Islamic Studies 91. Ibid (emphasis added). Constitution of Pakistan 1973 Preamble, art 31. Constitution of Pakistan 1973 art 2. Constitution of Pakistan 1973 art 227. Constitution of Pakistan 1973 arts 203D(1), 203D(2)(b). Christina Jones-Pauly and Abir Dajani Tuqan, Women under Islam: Gender, Justice and the Politics of Islamic Law (I B Tauris, 2011) 225. Shari’ah Act arts 3–3(1). Child Marriage Restraint Act (Act No XIX of 1929) (Pakistan) (‘Child Marriage Restraint Act ’) ss 2(a), 2(d). This definition of a ‘child’ is reflected in The Khyber Pakhtunkhwa Child Protection and Welfare Act (Act No XIII of 2010) (Khyber Pakhtunkhwa) (‘KPK Child Protection and Welfare Act ’) s 2. However, this Act legislates against child exploitation, and does not deal with child marriage, or marriage generally. See especially Tahira Jabeen, ‘Child Protection Legislation in Pakistan: Bringing International Child Rights Obligations and Local Values Together’ (2016) 8(3) Pakistan Journal of Criminology 16. See Child Marriage Restraint Act ss 4, 5, 6.

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81. Lucy Carroll, ‘The Muslim Family Laws Ordinance, 1961: Provisions and Procedures—A Reference Paper for Current Research’ (1979) 13(1) Contributions to Indian Sociology 117, 134. 82. Dissolution of Muslim Marriages Act s 2(vii). See, eg, Muazzam Nasrullah, Rubeena Zakar and Muhammad Zakria Zakar, ‘Child Marriage and Its Associations with Controlling Behaviors and Spousal Violence Against Adolescent and Young Women in Pakistan’ (2014) 55(6) Journal of Adolescent Health 804; Umar Daraz, Arab Naz and Waseem Khan, ‘Early Marriage: A Developmental Challenge to Women in Pakhtun Society’ (2014) 8(1) FWU Journal of Social Sciences 91. 83. Pakistan Penal Code (Act No XLV of 1860) (Pakistan) (‘Pakistan Penal Code’) ch XX-A s 498B. 84. Malé and Wodon, above n 54. 85. Faisal Bari et al, ‘Costing Study on Child Marriage in Pakistan: Child Brides—The Cost We Bear’ (Report, UN Women Pakistan, 2020) 28–9 . 86. Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’). 87. International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 171 (entered into force 3 January 1976) (‘ICESCR’). Also relevant to the marriage of minors without consent is the Convention on the Rights of the Child , opened for signature 20 November 1989, 1577 UNTS 11 (entered into force 2 September 1990) (‘CRC’). Pakistan ratified CRC in 1990 with reservations, however, none of the interviewees in this study were children or minors at the time of marriage, and therefore falls beyond more detailed consideration here. 88. CEDAW art 16(1)(b). 89. CEDAW art 16 (2). 90. Muslim Family Laws Ordinance s 5(1).

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91. The declaration from Pakistan can be accessed here: UNTC, Multilateral Treaties Deposited with the Secretary-General : Status of Treaties (2018) United Nations Treaty Collections ch IV (8) . 92. Ibid. 93. An objection by a contracting State to a reservation (e.g., the objection from Austria to the reservation made by Pakistan) does not preclude their entry into the treaty with the reserving State—unless a contrary intention is ‘definitely expressed’ by the objecting State. Thus, treaty relations remain possible between the reserving and objecting States: see Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 20(4)(b). On art 20(4)(b), Lijnzaad explains that the Vienna Convention ‘attaches the least possible weight to objections, preserving as much of the treaty as possible’—thus favouring reservations by States over the absence of treaty relations entirely. Therefore, objecting States must explicitly express the intention to preclude entry into force with a reserving State for no treaty relations to be established between the States: see Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties (Martinus Nijhoff Publishers, 1995) 43–5. 94. National Commission on the Status of Women Act 2012 (Act No VII of 2012) (Pakistan) (‘NCSW Act ’). The Act states the function of the Commission includes review of: ‘s11(b) … all Federal laws, rules and regulations affecting the status and rights of women and suggest repeal, amendment or new legislation essential to eliminate discrimination, safeguard and promote the interest of women and achieve gender equality before law in accordance with the Constitution and obligations under international covenants and commitments’. 95. ICESCR art 10. 96. Austria, Denmark, Finland, France, Germany, Latvia, the Netherlands, Norway, Slovakia, Spain, Sweden, and the UK and Northern Ireland objected to the general reservation made by Pakistan

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97. 98.

99.

100. 101.

102. 103.

104.

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upon signature, which stated: ‘While the Government of Islamic Republic of Pakistan accepts the provisions embodied in the International Covenant on Economic, Social and Cultural Rights, it will implement the said provisions in a progressive manner, in keeping with the existing economic conditions and the development plans of the country. The provisions of the Covenant shall, however, be subject to the provisions of the constitution of the Islamic Republic of Pakistan’. Pakistan subsequently withdrew this upon signature on 17 April 2008: see UNTC, Multilateral Treaties Deposited with the Secretary-General : Status of Treaties (2018) United Nations Treaty Collections ch IV (3) . Ibid. Vienna Convention on the Law of Treaties art 27. It is important to note that this article of the Convention provides that States cannot invoke internal or domestic laws as a justification for breaching treaty obligations. See UNTC, Multilateral Treaties Deposited with the SecretaryGeneral : Status of Treaties (2018) United Nations Treaty Collections ch IV (3) for a full list of the objections to the general reservation from Pakistan. Vienna Convention on the Law of Treaties art 20(4)(b). Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1962, UN General Assembly, opened for signature 7 November 1962, 521 UNTS 231, (entered into force 9 December 1964) (‘Marriage Convention’). Marriage Convention arts 1, 2, 3. Carroll, above n 81. A practising Advocate of the Supreme Court of Pakistan also explains the effect of the supremacy of shar¯ı ‘a upon the religious (and hence practical) validity of child marriage in Pakistan. See also Feisal Naqvi, The age of consent (17 May 2017) The News International . Melissa Upreti and Sofia Khan, ‘Letter to CEDAW Secretariat re: Supplementary information on Pakistan, scheduled for review by

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105.

106.

107. 108.

109.

110.

111.

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the Committee on the Elimination of Discrimination against Women during its 54th session’ (24 January 2013) Centre for Reproductive Rights . Ikram Junaidi, ‘Senate body rejects amendment to child marriage act as ‘un-Islamic”, Dawn (online), 12 October 2017 . Muhammad Ahsan Rana, ‘Decentralization Experience in Pakistan: The 18th Constitutional Amendment’ (2020) 17(1) Asian Journal of Management Cases 61. Sindh Child Marriage Restraint Act 2013 (Sindh) s2(a). Penalties would have substantially increased from the federal Child Marriage Restraint Act; the one thousand rupee fine would have increased to 45,000 rupees, and the maximum term of one month imprisonment increased to three years under the provincial legislation: see Akhtar Amin, KP govt proposes law to ban underage weddings (11 January 2016) . Bureau Report, ‘Delayed Legislation Against Child Marriages Regretted’, Dawn (online), 27 February 2016 ; Waseem Ahmed Shah, ‘View From The Courtroom: Child Marriages Go Unchecked As Govt Delays New Legislation’, Dawn (online), 28 December 2020 ; Waseem Ahmad Shah, ‘View From The Courtroom: Legislation To Curb Child Marriages Continues To Face Delay’, Dawn (online), 21 June 2021 . Provincial Assembly of Khyber Pakhtunkhwa Pakistan, Resolutions (2021), ‘Resolution No. 187: Repeal the Child Marriage Restraint Act 1929’, dated 23 April 2019, . See Provincial Assembly of Khyber Pakhtunkhwa Pakistan, Bills (2021) for a list of Bills introduced and passed in the Provincial Assembly of Khyber

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112.

113.

114. 115.

116. 117.

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Pakhtunkhwa between late 2018 and 2021. The Khyber Pakhtunkhwa Child Marriage Restraint Bill 2021 is not on the list, nor the previous versions of the Bill, as none have passed the Khyber Pakhtunkhwa Provincial Assembly. Ishaan Tharoor, ‘Bill banning child marriage fails in Pakistan after it’s deemed ‘un-Islamic”, The Washington Post (online), 15 January 2016, ; Shah, ‘View from the courtroom: Child marriages go unchecked as govt delays new legislation’, above n 109; Shah, ‘View from the courtroom: Legislation to curb child marriages continues to face delay’, above n 109. Carroll, above n 81; Naqvi, above n 103. In accordance with Hanaf¯ı legal doctrine, and as declared by the CII, child marriage is not religiously invalid in Pakistan, provided the girl subject to marriage has reached puberty. Muslim Family Laws Ordinance ss 4, 5(1). Carroll, above n 81; Naqvi, above n 103; Zia Ullah Akhunzada, Farhat Ullah, and Muhammad Ashfaq Khan, ‘Child Rights Issues in Khyber Pakhtunkhwa: A Qualitative Study’ (2016) 10(2) New Horizons 55, 56. Akhunzada, Ullah and Khan, above n 115. Ibid.

Part II Finding the Divergences Between Cultural Practice and Islam

5 Findings on Consent: Pashtun Experiences with Consent

This book is the result of my search to find out what consent-seeking should look like in my religion. Specifically, I aimed to ascertain whether Pashtun consent-seeking customs diverge from Hanaf¯ı legal principles on consent, and further, whether Pashtuns themselves are aware of any divergences between consent-seeking in their culture vis-à-vis their religion. To do this, I broke down the process of consent-seeking into three ‘elements’ which together comprise valid and lawful marriage in the works of Hanaf¯ı jurists. What the process of consent-seeking should look like was primarily construed from jurisprudential descriptions of the wil¯ayat mush¯araka (guardianship-partnership) between fathers and daughters in the process of securing marriage. The elements of consent-seeking were subsequently identified from my analysis of Hanaf¯ı literature on consent for the marriage of b¯aligh persons.1 As we discovered earlier in Chapter 3, where marriage is contracted by parents, the wal¯ı (legal guardian) must obtain lawful consent from his daughter and must also consult her in the process of contracting marriage. From this, the overarching elements of consent-seeking were identified as: (i) consent (both its necessity and form), (ii) sh¯ur¯a (consultation) in the process of deciding upon © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_5

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marriage, and (iii) the role of the wal¯ı (guardian) in contracting marriage. Of the three elements, consent remains the most pivotal, given that the validity of marriage in the Hanaf¯ı madhhab rests almost entirely upon lawfully obtained consent. In Hanaf¯ı legal doctrine, men and women of majority cannot be married without lawful consent. Existing research indicates that various Pashtun norms and practices do not seem to reflect this legal prerequisite to valid marriage; however, the extent to which Pashtun consent-seeking practices may diverge from Hanaf¯ı law has not been examined in any particular depth thus far. Specifically, there has not been any examination of consent-seeking in the Pashtun cultural context of Khyber Pakhtunkhwa (KPK) from a Hanaf¯ı legal perspective. Thus, the following three chapters contain the findings of this study with respect to each jurisprudentially derived element of consent in an attempt to find the divergences between cultural practice and Hanaf¯ı law and jurisprudence. This chapter is the first of three in which I present the data obtained from my interviews with Pashtun men and women. These chapters are the ‘meat’ of this book—stories are told, and reallife experiences find voice in the data. In each chapter, I have organised the data into themes that were identified from Hanaf¯ı jurisprudential literature, as well as data-driven themes that emerged organically during the analysis phases (detailed earlier in Chapter 2), which I have used to structure my analysis of the data in these chapters on consent, sh¯ur¯a (consultation), and wil¯aya (guardianship). This detailed breakdown not only allows for an in-depth examination of the interviewees’ personal experiences and beliefs, but also provides an entirely new understanding of the knowledge and awareness that Pashtuns have with regard to religious legality (or lack thereof ). Understanding the significance of any gaps between religious prescription and Muslim practice is important, given that Pashtun Muslims marry as Muslims, and use the religious Nik¯ah (marriage) contract to do so; in other words, cultural marriage does not exist in the Pashtun context and is undertaken as a religious ceremony, yet without explicit legal principles being understood or practiced in the process. Ultimately, these chapters will show that the Pashtun marriage process remains an

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extremely cultural aspect of life, rarely reflecting the jurisprudentially ideal ‘guardianship-partnership’ described in Hanaf¯ı literature. Finally, although I analyse the data on consent in this chapter, I do not discuss the implications of the findings here. Discussion of the findings on Pashtun consent practices vis-à-vis Hanaf¯ı legal principles is undertaken later in Chapter 8 (Discussion of the Findings). A Note on Percentages Before we dive into the consent findings, it is important to clarify that my inclusion of percentages throughout the data chapters is intended only to guide the reader to engage with the empirical findings and to understand the proportion of interviewees affected by each specific element/occurrence within this research sample. As I explained earlier in Chapter 2, the inclusion of percentages merely allows the reader to extract ‘meaning’ from the mass of findings presented in these chapters.2 They reflect frequency within my interviewee sample alone, without being generalisable to a wider population. As such, I do not claim these percentages as representative of the entirety of KPK in any way.

Findings on Consent From the vast amount of data obtained on consent, four overarching themes emerged. The rest of this chapter attempts to determine whether there is evidence of a gap between the requirements of lawful consent in Hanaf¯ı doctrine, and consent-seeking in the personal experiences, attitudes, and beliefs of the Pashtun interviewees. The analysis of Theme 1 data primarily informs later discussion on the ‘black-letter’ legalities of marriage consent, while Themes 2–4 inform discussion of Pashtun knowledge and beliefs on consent from various perspectives (personal, cultural, and religious): My findings on consent encompassed two separate consent-seeking experiences—those of ‘marriage with consent’ and ‘marriage without consent’. While these are two very distinct consent experiences, I have

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Table 5.1 Themes identified in data on ‘consent’ Theme 1:

Theme 2: Theme 3:

Theme 4:

Interviewees’ Personal Consent Experiences (including any personal experiences of marriage without consent) Consent in Pashtun Culture According to Interviewees Interviewees’ Personal Attitudes and Beliefs on Consent (including personal attitudes and beliefs on marriage without consent) Interviewees’ Beliefs on Consent from an Islamic Perspective (including beliefs on marriage without consent from an Islamic perspective)

consolidated them to allow for easier comparison between the lived experiences, attitudes, and beliefs of marriage with and without consent in this chapter (Table 5.1). The findings will show that the Pashtun interviewees were largely cognisant of a divergence between their culture and religion with regard to consent and were generally aware of the requirements for lawful consent in Hanaf¯ı Islam. To place this finding within a broader perspective, the interviewees’ perceptions on consent in Pashtun culture more generally are also canvassed (distinct to their personal consent experiences). This is followed by an exploration of the interviewees’ personal beliefs on consent, including their beliefs on the importance of obtaining consent before marriage. Finally, the interviewees’ beliefs on consent from a religious perspective are presented, including whether they believe that Pashtun consent-seeking practices generally reflect Hanaf¯ı legal principles.

Interviewees’ Personal Consent Experiences (Theme 1) By now, we know that the issue of consent is central to marriage in Hanaf¯ı legal doctrine. Yet, as we will come to see through the course of this chapter, consent seems to be a relatively complex aspect of Pashtun marriage. As all of my interviewees had their marriages arranged and concluded in KPK, all thirty-one (31) marriage processes were firmly

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embedded in the Pashtun cultural context of KPK (all of the Australian Pashtun interviewees migrated to Australia after being married in KPK). Twenty-eight of the 31 interviewees were in ongoing marriages (~90%). The remaining three were all women in Khyber Pakhtunkhwa. Two were widowed,3 and one had returned to her parental home after two years of marriage, having left her husband and children in very contentious circumstances (KPK-F Zala). Overall, an exceptional amount of data was obtained on the interviewees’ personal consent experiences. All data was analysed by comparing the responses to Hanaf¯ı jurisprudence; for example, the following questions were applied to the data in order to determine whether the interviewees’ personal consent experiences reflected lawful consent from b¯aligh persons in the Hanaf¯ı madhhab: Step-by-step analytical questioning of Theme 1 data: 1. Majority (bul¯ugh) or minority of interviewee? Previous marital status of interviewee (bikr or thayyib)? 2. Was consent obtained? 3. If consent was obtained —what was the form of consent? 4. If silent consent —type of silence described by interviewee? If verbal —was willing consent described by interviewee? Or verbal response akin to acquiescence? Although I have not included the questions that I applied to the rest of the themes in data analysis, the same analytical process was undertaken for all subsequent themes (Themes 2–12) as well.

Theme 1.1: Majority and Marital Status of Interviewees In terms of the consent principles relevant to this study, all 31 interviewees had only been married once at the time of interview, and this single marriage informed their personal experiences with marriage consent. As

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none of the interviewees voluntarily disclosed their sexual status, I subsequently assumed that every interviewee was bikr (a virgin) at the time of marriage. All 31 interviewees were also b¯aligh (of majority) at the time of marriage. Before commencing the interviews, I had expected at least one instance of minor marriage to manifest in the research sample, particularly given existing research on the prevalence of early marriage among Pashtuns;4 however, none of the Pashtuns that I interviewed were minors at the time of marriage. While there were no minor marriages among the interviewees, two women were considered for marriage when they were minors—although both were b¯aligh by the time they underwent the marriage process. Both were married without consent. Five interviewees were married as teenagers, all of whom were female. Three were women in KPK, and two were Australian Pashtun women. Significantly, approximately 43% of the women in KPK were married as teenagers (cf. ~18% of the Australian Pashtun women); however, this higher percentage of teenage marriage could very well be attributable to the smaller number of women interviewed in KPK (7 KPK-Fs cf. 11 AUS-Fs). None of the male interviewees were married as teenagers, indicating a gender differential with respect to teenage marriage that accorded with previous studies on marriage in Pashtun culture.5 Of the five women married as teenagers, two did not evince any regret at having married young, while the other three did. Two women, both of whom married when they were 15 or 16 years old, felt in hindsight that they had not been ready for marriage as teenagers, even though both were b¯aligh at the time of marriage: Fakhri (20–29 yrs): … Like our expectations were not that it would be that quick, we were definitely not mentally prepared for it [marriage] at that time.

In sum, all of the interviewees were b¯aligh at the time of marriage. As none of the interviewees voluntarily disclosed their sexual status prior to marriage, I also categorised all of the interviewees as bikr at the time of marriage. While minor marriage did not manifest among the interviewees, marriage without consent did.

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Theme 1.2: Form of Consent Obtained from Interviewees Of the 31 interviewees, 25 interviewees (~80%) consented prior to being married and only six (~20%) did not consent. The consent, and nonconsent, of interviewees can be broken down into demographic groups as follows (Table 5.2). The data not only indicated that 25 of the 31 interviewees prima facie consented to their marriages, but that all 25 consented to marriage verbally. This was an incredibly important finding, which is analysed further in the next section. As a result, silence as consent did not manifest in the participant sample at all: Shinogai (30–39 yrs): They showed me the picture and tell me about, he’s like this, like this, blah blah blah. I said okay, yeah, like you know, it’s fine – if everybody likes him, it’s okay.

Three of the male interviewees gave authority to their parents to find them a wife. Two described consenting to marriage generally, but not to their wives specifically. In other words, these two men consented to having their marriages arranged to whomever their parents chose, rather than having consented to marrying a specific person: Ikhtiar (30–39 yrs): Yeahhh, no I think I didn’t ask for like a specific person, or my wife, that I wanted to marry her, but I had given like, full rights to my parents to look for a girl for myself, and I had like you know, belief in them and I thought that they would you know, they would select the right person for me. Table 5.2 Demographic breakdown of interviewees’ consent experiences KPK women:

4/7 consented (~57%)

3/7 did not consent (~43%)

KPK men: AUS women: AUS men: Total

4/6 consented (~67%) 10/11 consented (~91%) 7/7 consented (100%) 25/31 consented (~80%)

2/6 did not consent (~33%) 1/11 did not consent (~9%) – 6/31 did not consent (~20%)

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In contrast, six interviewees were not asked for consent prior to marriage. Five of those were in KPK (three women and two men), and one was an Australian Pashtun woman. Of the three KPK women who did not consent, two were from the oldest age demographic (60–69 yrs), and one was in her thirties. The two men in KPK who did not consent were both in their forties. This indicates that marriage without consent spans generations and is experienced by both men and women in Pashtun culture; a finding that seems to reflect existing scholarship on parents contracting marriage for both sons and daughters in order to create or cement bonds between families.6 Interestingly, four of the six interviewees did not speak of being married without consent negatively. In fact, the two older women and both men in KPK simply accepted their non-consensual marriages happily: Chamtaara (60–69 yrs): No, we say that whatever decision the parents make is the right decision. We say that every parent makes better decisions for their children. As much as children don’t understand- children don’t understand, right? So the parents will guide them. We say they arranged it, and thank God, we are doing well, we are happy. That time there was none of this [questioning parents]. Arman (40–49 yrs): So … I am inclined towards my own father’s decisions and his – [pause] I don’t perceive any kind of lacking, like he made the wrong decision or anything.

KPK-M Arman is married to his cousin, who was betrothed to him in a deathbed vow made by his uncle to his ill father. Arman did not seem to have a negative experience with the betrothal and marriage. He spoke about acting out of duty, and seemed to have accepted his marriage as a matter of fact, without any bitterness or regret at having no choice in his spouse; rather, the marriage was something he simply had to do because it was agreed by the older men. On the other hand, the woman in her thirties said that she would have refused marriage to her husband, had she been older at the time her marriage was arranged:

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Storai (30–39 yrs): I would have said ‘marry me to someone I like’, ‘it’s my life’ … what I wanted.

Only one Australian Pashtun woman was married without consent (AUS-F Sparlay). Sparlay was of particular interest to me because, although she technically consented to marriage when asked by her parents, she did not believe that it was true consent. Sparlay had been betrothed to her cousin when both were babies, and this betrothal was honoured years later when she agreed to the marriage. However, she firmly believes that she did not have any real choice in the matter despite consenting when asked by her parents, asking what kind of ‘choice’ she was given if she could not refuse the proposal in practical terms. Out of respect for her beliefs regarding her own experience, I subsequently categorised Sparlay as unconsenting to her marriage: Sparlay (20–29 yrs): … they didn’t give me any choice. Like when they bring the proposal, they just asked me two questions. ‘This is a proposal for you, if you accept it, that’s fine’. If you don’t accept, maybe then you have other choice, like ‘do you love anyone?’ Which is so bad in my home, like in our culture. So straightaway I said, ‘no, that’s fine, whatever you choose for me, maybe that will be good’.

Of the interviewees married without consent, one was only asked for consent during the formal Nik¯ah (religious marriage) ceremony on her wedding day, but was not asked for consent during the entire marriage process (before the wedding formalities). When I asked what she thought about consent given during the Nik¯ah ceremony alone, she said that such consent may be given due to the public nature of the ceremony, and not freely obtained consent in every case. All 25 of the interviewees who consented to marriage did so verbally. Two women, although having verbally consented to marriage, did not believe that they had truly consented. Both were married as teenagers. One of these women believed that she acquiesced and had no real ‘choice’ in the matter, while the other only provided consent as formality on the wedding day. The latter unwittingly raised an interesting consideration regarding consent—that of the difference between consenting to

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marriage freely, and consent as mere formality (the implications of which are discussed in Chapter 8).

Theme 1.3: ‘Cultural Acquiescence’ as Verbal Consent Among Interviewees The previous section indicated that all of the interviewees who ‘consented’ to marriage did so verbally. However, the consent described by 11 of the 25 consenting interviewees led to an analysis of the type of verbal consent obtained for marriage. Significantly, almost half of the consenting interviewees (~44%) described their consent in terms of acquiescence to their parents regarding marriage and/or choice of spouse: Kontara (40–49 yrs): Like they did ask me. I said, ‘yes whatever you like, I like too’. Fakhri (20–29 yrs): They asked me properly, and I told them, ‘whatever you like, that’s okay with me’. Hukam (60–69 yrs): Yes, we just said Alhamdulillah that, if our elders were happy with it, if our household was happy with it, we were happy with it. Sangina (20–29 yrs): Like for my situation, I said ‘okay, whatever you like, that’s okay’. Parkha (20–29 yrs): So according to our culture, I was a bit shy, said ‘do whatever you like, I’m okay with it’ [laughs].

I have described this kind of compliant response as ‘cultural acquiescence’ throughout the rest of the book, akin to the notion of ‘silent acquiescence’ used by Kecia Ali to describe silence as lawful consent from virgin women in Islamic legal jurisprudence.7 Three women in KPK, four Australian Pashtun women, three Australian Pashtun men, and one KPK male (11 out of 31 interviewees) all described their personal consent in terms of acquiescence. Although existing research has found that Pashtun children are expected to accept the unilateral authority of parents in marriage and spousal decision-making, ‘cultural acquiescence’ as a type of verbal consent

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among Pashtuns has not been the subject of scholarly research to date. As such, I only categorised interviewees as having ‘acquiesced’ to marriage if they specifically used the kind of terminology in the quotes above when describing their consent experience. Two of the Australian Pashtun women acquiesced to marriage despite being unhappy to marry at the time. Both cited the desire to finish their studies as the reason for this unhappiness, and one attributed her acquiescence to the ‘forceful’ expectations of her culture, not any personal desire to marry. Two of the Australian Pashtun men expressed similar sentiments and felt that they had been compelled to accept their parents’ decisions unless they had strong grounds for objection: Jabeen (40–49 yrs): Not really. I wanted to do my Masters. But I was forced to do this. Again, it was a different thing, um, and it all comes down to those cultural things, that when I was getting engaged, they promised to let me finish my Masters, and then it was 6 months down the track when they started to push to get married, so. Amail (40–49 yrs): Ahhh, I had a say in that I would say. So, so they sort of choose her, and I have to say yes. So my say was there, but I don’t think I was forced or something – I could have said no, and it could have not gone further. Yeah [laughs].

Three of the interviewees who did not consent to marriage also described acquiescence in their non-consensual experiences. On the other hand, two men accepted marriage out of respect for their parents, even though neither was asked for consent prior to marriage. One drew a firm distinction between her cultural acquiescence to marriage, and the notion of willing consent (AUS-F Sparlay): Rangeen (40–49 yrs): … Well, for us [Pashtuns] it’s like … at that time it was just that you were happy, your parents were happy so you were happy.

Overall, cultural acquiescence as verbal consent was reflected throughout the interviewee demographics. Approximately 44% of the consenting interviewees and 45% of all interviewees described their

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consent (or non-consent) in terms of acquiescing to their parents’ decisions. In the Hanaf¯ı madhhab, marriage that results from pressure or emotional blackmail constitutes marriage without consent or forced marriage and is unlawful.8 The case of AUS-F Sparlay in particular raises a question as to whether cultural acquiescence contravenes Hanaf¯ı requirements when cultural norms generate pressure to accept parental decisions in marriage, even if those subject to the marriage do not agree with them.

Theme 1.4: Proportion of Arranged Marriage Among Interviewees Twenty-nine of the 31 interviewees (~94%) had their marriages arranged by their parents. Only two interviewees were married in what is called a ‘love marriage’ in Pashtun culture, whereby the interviewees chose their own spouses, as opposed to having their spouse chosen by their parents. This high percentage is likely attributable to the Pashtun cultural context in which the marriages took place, given that the prevalence of arranged marriage within this study accorded with previous research on Pashtun marriage9 : Shinogai (30–39 yrs): It’s like we have the family friends and my husband’s parents are like, you know, friends with them, and my husband’s dad asked him ‘I’m looking for my son’, so like some nice family and like this and is there any girl you know and then they told about me. And then they come. I don’t know anything about [my husband], or family background, you know. No cousin, no relationship like that out of the family. Jahangir (30–39 yrs): My marriage was an arranged marriage, and ahh, usually like in our part of the world, it’s actually, normally, it’s more like 70 percent or maybe 80 percent of the marriages nowadays are absolutely arranged marriages. And mine was one of that, and it was being arranged obviously like, it’s ahhh, a cultural thing that we can’t actually talk to the girl - like if I actually know someone or I like someone, I won’t be able to go to her straight away and propose to her. I’ll be going through my parents and they’ll talk to her through her

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parents, so it’s something like that. So it was like, my parents actually decided everything for me.

Contemporary Hanaf¯ı jurists have considered the possibility of arranged marriage operating as a ‘façade’ for forced marriage in certain cultural contexts.10 I subsequently analysed the proportion of arranged marriage among the interviewees to determine whether there was any overlap between arranged marriage, and marriage without consent, within the research sample. Significantly, all six interviewees married without consent had their marriages arranged by their parents (100%). This finding may substantiate the concerns of contemporary Hanaf¯ı jurists on the potential association between arranged marriage and marriage without consent—an implication that is discussed further in Chapter 8.

Summary of Theme 1 Findings The Pashtun interviewees’ personal consent experiences largely mirror one another in each demographic breakdown of the data. I have provided a summary of the interviewees’ characteristics at the time of marriage in Table 5.3. All of the interviewees were both bikr and b¯aligh at the time of marriage. Twenty-five of the 31 interviewees consented to marriage, all of whom provided consent verbally. Neither silence as consent, nor minor marriage manifested among any of the demographics. However, marriage without consent did. Four of the eighteen women (~22%), and two of the thirteen men (~15%), did not consent prior to being married. Of the 25 interviewees who consented verbally, 11 described their consent in terms of acquiescence to marriage (~44% of consenting interviewees), and two distinguished this type of verbal acquiescence from the notion of willing consent. Approximately 94% of the interviewees (29 out of 31) were subject to arranged marriage. All of the interviewees married without consent had their marriages arranged.

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Table 5.3 Summary of the interviewees’ characteristics at time of marriage (from Theme 1 data)

Female

Male

Bikr (not previously married)

18/18

13/13

Baligh ¯ (of majority)

18/18

13/13

Teenage

5/18

–

Consented verbally

14/18

11/13

Consented silently Did not consent

– 3/18

– 3/13

Culturally acquiesced to marriage (as verbal consent) Culturally acquiesced to marriage arranged by parents (but not asked for consent) Arranged marriage (by parents of prospective spouses) Love marriage (between prospective spouses themselves)

7/18

4/13

1/18

2/13

17/18

12/13

1/18

1/13

Total (out of 31) 31 (100%) 31 (100%) 5 (~16%) 25 (~80%) – (0%) 6 (~20%) 13 (~36%) 3 (~10%) 29 (~94%) 2 (~6%)

Consent in Pashtun Culture According to Interviewees (Theme 2) The previous section analysed the interviewees’ personal consent experiences. This section looks at the interviewees’ beliefs on consent as it operates in their culture generally, distinct to their own personal experiences, as this was an important theme to emerge from the consent data.

Theme 2.1: Consent in Pashtun Culture When asked about their perceptions on consent in Pashtun culture generally, 24 of the interviewees (~77%) were of the view that consent was mostly sought in their culture, and that seeking verbal consent was

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now a matter of course in the marriage process. There was often an implication that verbal consent was not always the norm, but that it had increased in more recent times. Half of the male interviewees, in both KPK and Australia, were confident in their belief that verbal consent was sought in the majority of cases. Although one of these men explained that, in most cases, marriage will not progress until consent is obtained, he believed that the practice of non-consensual marriage did exist among a minority of Pashtuns: Ikhtiar (30–39 yrs): So as I said, when the boy’s family is there, so the girl’s parents will ask the girl as well that ‘if you are okay with this relationship, so we can move forward’, otherwise it will not happen. But again, there are some exceptions in minority cases, where they don’t value the opinion of their kids, or their daughter - but again, that is not, that is not the entire Pashtun culture, that will be minorities.

While the majority thought that verbal consent was generally sought prior to marriage, many also felt that various factors limited the scope and effectiveness of verbal consent-seeking in Pashtun culture. For example, two of the Australian Pashtun women felt that consent was more akin to informing daughters of an impending marriage, as opposed to seeking willing consent. Both women believed that consent may be sought by parents, but not operate as true consent in reality. One of these articulated the cultural norms that she believed elevated the authority of parents over the wishes of children, noting that daughters subsequently ‘go along’ with the wishes of their parents: Jabeen (40–49 yrs): They will ahhh, they will tell their girls, or they’ll tell their daughters - but as I said to you before - there is a little bit of a difference in terms of giving consent, the girls will say … abide by what the parents will decide for them, whether you consider that as a yes or a no or a consent is a different thing, you know. But because that’s the cultural norms where the girls live by, and they’re not given the kind of choices or freedom to choose their husband for themself, it’s the parents who are organising the wedding. …

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This belief was actually reflected in the personal consent experience of AUS-F Sparlay, who felt that she did not truly consent to her marriage, despite having technically consented when asked by her parents. While 24 interviewees believed that consent was generally sought by Pashtuns in KPK nowadays, twenty-nine (~94%) also believed that nonconsensual marriage did still exist in KPK, with varying perceptions on its prevalence in the province. In contrast, 7 interviewees (~23%) believed that consent was not often sought as the norm in KPK. Of these, one felt that the Pashtun cultural milieu lends itself to such practices, where showing respect to elders is an entrenched societal norm: Hukam (60–69 yrs): Well … if you’re looking at - considering the husband and wife is [the right thing] because they’re living the life then. But our culture, our environment is like this that we do things in accordance with the elders, the house, and the family.

Indeed, although the interviewees posited various reasons for marriage without consent in Pashtun culture, respect for parents as a cultural norm was the primary theme that emerged. For two of the women in KPK, non-consensual marriage was tied to the influence that Pashtun parents wield in marriage and spousal decision-making. One interviewee thought that patriarchy or ‘manpower’ allows fathers to force marriage on children, while another said that such marriages were the result of pressure placed upon daughters, often by their fathers. He explained that pressure can be employed at the time of Nik¯ah itself, where consent is necessary for the purposes of the religious legal marriage contract: Shinogai (30–39 yrs): Most of the time, it depends on situation. But you know, father or brother, they can you know, sometimes force, too much force on child, or girl to get married. Like, Mum, because woman don’t have that much rights, that’s why I don’t say Mum, but you know, like brother. Men hold the power. Manpower is talking always. Amail (40–49 yrs): Like, in a lot of those situations, let’s say the girl is not ready, so he can come and push or pursue with her, that it’s a matter of izzat [honour] for us, or this or that, so.

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Lack of education was another reason posited for marriage without consent by almost half of the interviewees. Four interviewees believed that there was a difference between consent-seeking in urban and tribal/village areas of KPK; these interviewees often drew a link between rural areas and a ‘lack of education’ in their responses: Chamtaara (60–69 yrs): There are places where this doesn’t happen, the kind of places where there aren’t educated people, they don’t understand. These days, those that are educated definitely do this. Maybe in the [mountainous areas], it’s still the old system.

On the other hand, two interviewees, both men in KPK, completely rejected the idea that marriage without consent was common in KPK. One stated that the notion of marriage without consent, or forced marriage, was ‘propaganda’ and does not occur in modern times. He also felt that such marriage was practically impossible, explaining that a daughter would know that her marriage was being undertaken by her parents. This seemed to shift the burden of responsibility to the daughter, as opposed to resting with the parents undertaking marriage on her behalf: Arman (40–49 yrs): The thing is, the girl would know that much that ‘it’s my wedding program’, someone will have asked her, ‘give me your measurements, so we can buy your shoes, your ring, we will buy this and that’, so she knows what’s happening. If ever she has rejected this thing, so the question arises that she has spent this long silent or done nothing, meaning she has found out about this thing and has said nothing, so even if it is without heart, never matter why, but meaning that for the sake of her parents, or for the sake of something like that, that her heart isn’t in it, but she has consented.

Another interviewee explained that parents now use tactics such as persuasion and negotiation to convince daughters into marriages they did not initially consent to. Overall, 24 interviewees (~77%) were of the view that consent was mostly sought in KPK, and that seeking verbal consent was now a matter

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of course in the marriage process. Approximately 94% (29 of 31 interviewees) believed that marriage without consent exists in KPK, but only 7 of those believed that it remained a widespread or common practice (~23%).

Theme 2.2: Type of Verbal Consent in Pashtun Culture The previous section concluded that the majority of the interviewees believed that consent was generally sought verbally in KPK. However, many also felt that the type of verbal response provided may not reflect true consent in practice. Subsequent analysis of verbal consent was undertaken to find out what the interviewees meant in this regard. When asked about consent in Pashtun culture generally, 8 interviewees described verbal consent in terms of acquiescence. This was unsurprising, given that almost half of the consenting interviewees (~44%) had acquiesced to their own marriages. Two women, and one KPK male, felt that acquiescence was not only the most common type of verbal response, but was the expected response from children, particularly daughters, who are often unable to express desires to the contrary: Sangina (20–29 yrs): She will say ‘whatever you like’. Yeah, and the parents will make, they also want this answer from them.

Three interviewees posited reasons for acquiescence in Pashtun culture. One expressed the view that some girls acquiesce because they are not aware of their rights to the contrary, while another felt that, for some girls, acquiescence was preferable to igniting a dispute between families if they rejected marriage. However, the main reason for acquiescence was again attributed to Pashtun cultural norms in terms of the pressure to respect, and accept, the decisions of parents in Pashtun culture: Jabeen (40–49 yrs): … So she, she kind of agrees with what the parents are deciding, but the choice is not in her hand in a way, you know what I’m saying?

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It was clear that many were of the view that acquiescence often operates as verbal consent in KPK. This belief corresponded with the interviewees’ personal experiences in Theme 1, and the fact that almost half of the consenting interviewees acquiesced to their own marriages. The implications of acquiescence as verbal consent within the Pashtun cultural context is discussed in detail in Chapter 8 (Discussion of the Findings).

Theme 2.3: Silence as Consent in Pashtun Culture Although silence as consent did not manifest in the interviewees’ personal experiences, when asked about consent in Pashtun culture generally, 10 interviewees (~32%) believed that silence was a common response to consent-seeking in their culture, particularly from daughters. Interestingly, more female interviewees referenced silence as consent than male interviewees (8 female cf. 2 male interviewees). Two felt that silence was a common response from daughters to consent-seeking, and two interviewees specifically referenced ‘quietness’ regarding the role of Pashtun daughters in their own marriage process: Jahangir (30–39 yrs): Yeah, it’s normally - silence is actually a sign of acceptance in our culture. If the woman doesn’t say anything, it means that she accepts it, but no one knows whether she’s [actually] accepting or not. So that silence actually means acceptance. Farangiz (60–69 yrs): She’s just quiet [brings finger to lips]. Whatever they want to do, they can do.

Unsurprisingly, eight (8) of these interviewees identified silence as potentially problematic for daughters in KPK. They felt that, where a verbal response was not explicitly sought by parents, the chances of marriage without consent increases for girls in their culture. According to these interviewees, silence and acquiescence to parents do not necessarily mean that daughters ‘want’ marriage in every case. One interviewee believed that even verbal consent may not be straightforward in every case, explaining that although some daughters may respond verbally, they may not necessarily respond candidly to their parents:

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Zala (20–29 yrs): Mmmm, if the girl wants it, then she says that - often they understand the environment in the house, don’t they? So if she wants it, she says ‘you make whatever decision you think best for me’, and if she doesn’t want it, then she says ‘I am still studying’ or makes some other excuse, another excuse.

Although the majority believed that verbal consent was generally sought in present times, it was clear that a reasonable proportion also felt that silence exists as valid consent in KPK, due to the religious acceptance of silence as consent from bikr women. However, most of these interviewees personally believed that verbal consent is necessary in modern times, despite the jurisprudential acceptance of silence as valid consent.

Theme 2.4: Consent-Seeking from Daughters cf. Sons in Pashtun Culture As previous research suggests that males have more agency than females in Pashtun society,11 I examined the interviewees’ beliefs for any perception of gender disparity in relation to consent-seeking from daughters compared with sons. Eight interviewees referenced gender as a factor in their responses and believed that sons have more agency than daughters in Pashtun culture. Two of the Australian Pashtun women felt that demonstrable modesty was more important from girls than boys in their culture, thereby rendering daughters quieter than sons when responding to marriage. Another referred to entrenched gender norms, explaining that it was harder for girls to refuse marriage as they are generally ‘weaker’ in Pashtun society: Kontara (40–49 yrs): Now if we want to ask a girl for a boy, then we definitely ask the boy, that ‘we’re going to this house, do you like this person or not?’ But we don’t ask girls. Begum (40–49 yrs): Boys, they have, they are still … like they have strength to say no as compared to girls. Girls are weaker in our society, isn’t it.

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On the other hand, five interviewees believed that sons were as susceptible to marriage without consent as daughters in Pashtun culture. The responses from men relaying their personal consent experiences also suggested that consent may not be as open a process for Pashtun sons either: Rangeen (40–49 yrs): Nah, nah, nah, nah. There was absolutely no asking. It was me, they got my cousin, and I was married.

The interviewees’ personal experiences suggested that both men and women were subject to marriage without consent, and acquiesced to marriage, in KPK. However, the belief that responding to marriage was easier for men seemed to stem from wider gender norms that operate in KPK.

Summary of Theme 2 Findings The interviewees largely exhibited homogenous beliefs on the ways in which consent generally occurs in Pashtun culture. Both male and female interviewees believed that consent was generally sought verbally and recognised that this was a change from past practices favouring silence. However, many interviewees believed that silence as a response continued to exist in KPK, due to the entrenched norms of respect for parents and the expectation for demonstrable shyness from children (particularly daughters) in Pashtun culture. Acquiescence and silence as responses to consent-seeking recurred throughout the interviewee breakdown, and both types were largely believed to render consent ineffective.

Interviewees’ Personal Attitudes and Beliefs on Consent (Theme 3) The previous section presented the interviewees’ beliefs on consent in Pashtun culture generally. This section looks at the attitudes and beliefs that the interviewees personally held with regard to consent, distinct

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to their personal experiences with consent—for example, whether they personally believed consent to be important and whether non-consensual marriage is justifiable in any circumstance. Significantly, all 31 interviewees personally believed that it should be compulsory to obtain consent prior to marriage. However, personal opinions differed among the interviewees on the form of consent that should be sought and whether obtaining consent was necessary for marriage.

Theme 3.1: Interviewees’ Beliefs on the Necessity to Obtain Consent All 31 interviewees personally believed that obtaining consent prior to marriage was necessary, irrespective of whether marriage occurs in the Pashtun cultural context or not. When asked to elaborate on why it was necessary, 18 interviewees (~58%) said that consent was integral to the future well-being of spouses in marriage. These interviewees felt that the consequences of marriage are felt by those who are subject to marriage, not those who contract marriage on their behalf: Kontara (40–49 yrs): Asking consent is required because you don’t know whether the girl likes the person or not, whether she can live with him or not, because then later problems arise. So girls should be asked. Nufail (30–39 yrs): … It should be that they ask, because they will be the ones living that life, not the parents.

Fifteen interviewees (~48%) personally felt that consent was necessary for valid marriage, although these interviewees justified their belief with the Islamic requirement, or more specifically, the Hanaf¯ı requirement for consent. Ten of these interviewees were men. It was more difficult to ascertain the personal beliefs of the men in KPK than any other demographic, and this may stem from the fact that they often tied religion to their personal beliefs. Yet, it is entirely plausible, given the importance of shariat in Pashtunwali,12 that religion did in fact play a large role in cementing the personal beliefs of the Pashtun men and women interviewed:

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Begum (40–49 yrs): Yeah, she should [be asked for consent], yeah. And Islam gives that right to the girl as well, like boys. Boys, they have same, equal rights. Mirwais (50–59 yrs): The reason I’m saying is because this is what Islam says.

Only three interviewees (~10%) felt that consent was necessary due to the consequences of the alternative (i.e., not obtaining consent), and all three were in KPK. Two women in KPK believed that consentseeking was necessary due to contemporary societal expectations—one explaining that girls could go as far as ‘destroying’ their parents if married against their wishes. Interestingly, this belief was evinced by two women between whom there was a forty year age gap, which may indicate that the perceived ‘modern-ness’ of consent-seeking may not be exclusive to the older generation of Pashtuns: Fakhri (20–29 yrs): Absolutely, it’s necessary. Now the way it goes, the girls are so worldly that if they don’t get asked, then they destroy their parents, almost sever ties. So if they’re going to prevent that outcome, then it’s better that they ask.

A manifest difference emerged between the female and male interviewees on the reason they believed consent to be necessary. While most of the women felt that consent was necessary for future well-being (14 out of 18), most of the men cited Islam as the reason for their personal beliefs (10 out 13). However, the two reasons were not mutually exclusive, as many interviewees cited both when explaining why they believed that consent was necessary for valid marriage.

Theme 3.2: Interviewees’ Perceptions on Ideal Consent-Seeking The previous section showed that all 31 interviewees personally believed that consent must be obtained prior to marriage. I subsequently analysed the data to determine whether the interviewees had elaborated on how they thought consent should ideally be sought, and found that 15

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interviewees (~48%) specifically described verbal consent as the type of consent they felt should be obtained before marriage. Three of the women in KPK passionately advocated for verbal consent, without regard to extraneous cultural issues such as modesty and shame. They believed that verbal consent was necessary, whether such consent was provided to parents directly or via a third party (such as an aunty, female cousin, or older sister). Indirect communication was commonly described by the interviewees and is analysed in the next chapter on sh¯ur¯a/consultation. Two of the three women recounted difficult personal marriage experiences, which may have influenced their beliefs on the necessity to obtain verbal consent. One said that parents have a duty to ask their child repeatedly, and ‘with love’, until provided with a conclusive answer. It is worth noting that this interviewees’ own experience was markedly different, having been married without consent as a teenager: Storai (30–39 yrs): I personally think a proper clear answer is required. When the parents tell her, she tells them. [Q: And what if she’s silent?] Then it’s up to the parents to ask her, not once, again, then again, with love.

Two of the Australian Pashtun women also espoused the view that silence should no longer be sufficient as an affirmative response. One noted that body language can be ‘deceiving’, thereby rendering verbal communication the ideal: Begum (40–49 yrs): The consent should be verbal, because your body language could be something not what you want to say. It can be deceiving. So verbal conversation is important.

Interestingly, in contrast to the women, all of the Australian Pashtun men were of the view that verbal consent was ideal. Six of the men also seemed to advocate for a type of informed consent, linking consent with consultation in the marriage process:

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Amail (40–49 yrs): So if you are taking her consent, then consultation should be part of that consent as well.

However, only one of the men in KPK believed that consent must be verbal. He attributed this necessity to modern times, where digital communication and education have increased among the younger generation: Rangeen (40–49 yrs): Well, if you look at today’s environment, like since the electronic media came, social media, right? Then with all this, at least it should be that something verbal is required now, like ‘you can do this’, you know?

Two interviewees, both older women in KPK, exhibited a sense of conflict in their responses to ‘ideal’ consent-seeking. For example, one thought that the ‘freedom’ of present times compelled parents to seek verbal consent, but also revealed a personal preference for her own time, when modesty and honour compelled children to acquiesce to the decisions of their parents. She seemed to respond with what she believed was ideal, along with what she believed was reality, or a break from the ideal. Another of the older women in KPK also thought that verbal consentseeking was necessary in modern times, while simultaneously seeming proud that her own daughters had accepted marriage without question. This conflict was only found in the responses of these two older female interviewees in KPK.

Summary of Theme 3 Findings All 31 interviewees felt that parents should not contract marriage without first obtaining consent. A majority believed that consent was integral to the future well-being of the spouses in marriage (~58%), and just under half felt it was also necessary per the Islamic requirement for consent (~48%). Only three interviewees (~10%) in KPK felt that consent was necessary due to the possible consequences of the alternative, often described in violent terms such as daughters ‘destroying’ parents, and brides being killed.

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The spectrum of beliefs raised an interesting contradiction between forthrightness and shyness in Pashtun consent-seeking. Almost half (~48%) of the interviewees specifically described verbal consent as the type of consent that parents should obtain. While most of the interviewees felt that explicitness was required for the purpose of obtaining ‘proper’ consent, four interviewees did consider acquiescence or silence as ideal consent even in modern times (~13%).

Interviewees’ Beliefs on Consent from an Islamic Perspective (Theme 4) The previous section analysed the interviewees’ personal beliefs on how they felt consent should be obtained in their culture. This section looks at the interviewees’ responses on consent from a religious perspective, in order to determine whether Pashtuns are aware of any divergence between consent-seeking in their culture vis-à-vis their religions.

Theme 4.1: Consent from an Islamic Perspective According to Interviewees When I asked the Pashtun interviewees whether they believed consentseeking was religiously compulsory, 28 (~90%) responded with the belief that obtaining consent prior to marriage is compulsory in Islam. Yet, as we saw earlier, twenty-nine (~94%) were of the view that marriage without consent exists in KPK, with varying beliefs regarding the prevalence of such marriage in the province. These findings not only indicate a possible divergence between Pashtun cultural practice and religious requirement, but that the interviewees were aware of such a divergence, including most of the interviewees in KPK. This awareness of a divergence between religious consent-seeking principles and Pashtun cultural practice is an important finding of this study, and is explicated further in the next section. All of the Australian Pashtun interviewees, and all of the men in KPK, were of the view that consent was religiously compulsory, while only four of the seven women in KPK espoused this view. Perhaps

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significantly, the women in KPK were among the lowest educated in the research sample (the significant impact of educational background within the findings is discussed later in Chapter 8): Zarlashta (50–59 yrs): Yes, it [consent] is compulsory. It’s compulsory from the boy, and from the girl. And it’s very compulsory. Asfandyar (40–49 yrs): Of course. It’s, it’s the basic ahhh, aspect of Islam, before going into any agreement, before going into any arrangement, Islam says that you have to talk with the girl, and with her consent, you have to take the decision.

In contrast, two of the women in KPK believed consent to be a modern societal construct as opposed to religious prescription, and this was reflected in their beliefs on the necessity to obtain consent generally in modern times. When asked about obtaining consent before contracting marriage, one thought that such practices actually diverged from Islam, while the other explained that consent itself was a matter of ‘fate’—not attributable to whether religious rights were being observed or disregarded in her culture: Farangiz (60–69 yrs): Well if she’s forced, then her fate … If proposals are coming and they’re asking for her, then her fate isn’t with them. If the girl is saying she won’t marry them, and the parents also say she’s not listening to our wishes, then her fate isn’t there. If her fate is written with someone, then God will bring him out, he will come and ask for her, then she’ll agree in an instant.

Only one of the 31 interviewees said that she did not know whether marriage without consent was explicitly contrary to religious requirement, but felt that marriage consent was at least encouraged in Islam: Storai (30–39 yrs): This I don’t know [if consent is religiously required]. But I do know that there is consent, ask women for their consent.

It was clear that the majority were of the belief that consent is compulsory to obtain prior to marriage in Islam.

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Theme 4.2: Awareness of Divergence Between Islamic Consent Principles and Pashtun Cultural Practice Extant literature indicates that many Pashtun cultural practices diverge from Islamic legal principles, and further, that many Pashtuns do not perceive any distinction between Pashtunwali and the tenets of Islam.13 I subsequently analysed the data for evidence of this within my research sample. In contrast to extant literature, I found that an overwhelming majority of the interviewees actually mentioned a perceived divergence between consent in Islam, and consent in Pashtun cultural practice generally. Of the 31 Pashtuns interviewed, 27 (~87%) felt that Pashtun cultural practice does not reflect the necessity to obtain consent in Islam: Zala (20–29 yrs): Definitely, I’ve read this myself, I’ve read this in books and Islam also has given a right that the girl must be asked. So I say myself that if Islam has given the right to the girl that she must be asked, then why don’t parents ask? Hukam (60–69 yrs): Well, it [asking consent] is compulsory … but in these areas - in our area, in our area as you know we don’t have this kind of thing.

One interviewee strongly believed that marriage without consent was purely cultural, explaining that the cultural rejection of religiously sanctioned practices stemmed from the strong cultural value for shame, and a desire to avoid being ‘disgraced’ among other Pashtuns: Jahangir (30–39 yrs): But it’s just the culture, I think. Because the religion is different. They say - the religion is not asking you to just impose your decision on a woman, or on a man, that you have to marry someone. It should be their own decision because after all, you have to live the rest of your life with someone, so it should be - on the Islamic point of view, it should be, ahhhh, it shouldn’t be imposed on you, but culturally, it’s different. I think it’s just the culture. It’s just the culture, nothing else. Because people are scared of being talked [about] in gatherings, like if something happens to someone’s daughter, or if she proposes someone,

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this is, this is very bad, like this is gonna be considered very bad for that family. It’s kind of, something very disgraceful.

In contrast, only three interviewees did not note a divergence between cultural practice and religion in their responses. One KPK male reflected the conclusions of previous research, explaining that there was no distinction between the religious requirement for consent and consent-seeking in Pashtun culture—or indeed, any great divergence between Islam and Pashtun culture whatsoever: Gawhar (40–49 yrs): So asking [consent] is in Islam, right? So even if Pukhtuns reduced their prayer, they can never leave the rules of Islam.

Thus, the vast majority of interviewees (~87%) were not only aware, but articulated, a divergence between Islamic consent principles and consent-seeking practices in Pashtun culture.

Summary of Theme 4 Findings The overwhelming majority of the interviewees believed that it was religiously compulsory to obtain consent before contracting marriage (~90%). Most significantly, in contrast to the assertions of previous research and my subsequent expectations, the vast majority of Pashtuns interviewed (~87%) were aware of a divergence between their culture and religion on consent. Finally, over half of the interviewees believed that a Nik¯ah contract remains valid in marriage contracted without consent (~55%), which ran counter to Hanaf¯ı legal principles on the requirement of lawful consent for valid marriage. This belief was held by both the majority of men in KPK (5 out of 6), as well as the majority of Australian Pashtun women (6 out of 11).

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Conclusion In this chapter, I have analysed the interviewees’ perspectives on various aspects of consent, including their personal experiences with marriage consent, their beliefs regarding consent in Pashtun culture generally, their beliefs on the importance of obtaining consent before marriage, and their knowledge of marriage consent from a religious (Hanaf¯ı) perspective. Only four interviewees consistently diverged from the majority, and all four were in KPK. However, these interviewees consistently diverged in their beliefs on consent, as opposed to their personal experiences. All four believed that consent-seeking was either symptomatic of modernity, or felt that marriage without consent was a non-issue in Khyber Pakhtunkhwa. The Pashtun interviewees were otherwise largely homogenous with respect to their personal experiences, and their beliefs, in each demographic breakdown of the data—both in terms of locality (KPK or Australia), as well as gender. A majority of the interviewees (25 out of 31) verbally consented to their own marriages, while 6 interviewees were married without consent. Interestingly, silence as consent did not manifest in the personal experiences of the Pashtuns interviewed. Almost half described their consent in terms of acquiescence to marriage, and this manifested in both the responses of those who consented to marriage and those married without consent. A breakdown of the interviewees’ personal consent experiences revealed that male and female interviewees were both married without consent, and acquiesced to marriage, to similar degrees. Almost all of the interviewees had their marriages arranged by their parents (29 out of 31), including all six of the interviewees married without consent, which could indicate a possible association between arranged marriage and non-consensual marriage in Pashtun culture. This indicated that non-consensual marriage and acquiescence were not limited to any particular gender in KPK. Instead, the data suggests that marriage and spousal decision-making is undertaken by parents for the majority of unmarried children in Pashtun culture, regardless of gender. Consequently, acquiescence to parents may constitute an inherent part of Pashtun culture, and this was clear from the perspective of the interviewees, many of whom felt that parents were best

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equipped to make such decisions for children. According to most of the interviewees, Pashtun cultural milieu necessitates such direction from parents, mainly due to the lack of personal agency held by unmarried children—particularly daughters—in KPK. This lack of agency may consequently legitimise non-consensual marriage and acquiescence in KPK. The general homogeneity in the interviewees’ personal beliefs on the importance of seeking consent may also be reflective of Pashtun cultural norms pertaining to parental authority in marriage. Significantly, every interviewee felt that consent should be obtained before marriage, and this was justified by the future well-being of those subject to marriage (by the majority of female interviewees), as well as the religious requirement for consent (by the majority of all interviewees). Most importantly, a divergence between Pashtun cultural practice and Hanaf¯ı legal principles emerged in the findings on consent. Moreover, the vast majority of the interviewees (27 out of 31) personally believed that consent in their culture was not reflective of religious legal principles. This was a particularly significant finding to emerge from the study. The prevalence of acquiescence as consent and the finding of consent as a mere formality also raised questions on the lawfulness of such consent from the perspective of Hanaf¯ı doctrine, which requires willing consent from b¯aligh persons in marriage. Overall, the findings on this first element present a range of issues that exist with respect to consent in Muslim practice. These include consideration of whether acquiescence operates as valid consent within the spirit of Hanaf¯ı legal doctrine, the possible association between arranged marriage and marriage without consent, silence as consent within the context of Pashtun culture, the case for verbal consent from the perspective of the interviewees, and the interviewees’ own perception of a divergence between Islamic consent principles and cultural practice. All of these issues to emerge from the findings on consent are discussed later in Chapter 8.

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Notes 1. As none of the interviewees were minors at the time of marriage, this study focuses on the legal principles pertaining to men and women of majority. 2. Margaret Sandelowski, ‘Real Qualitative Researchers Do Not Count: The Use of Numbers in Qualitative Research’ (2001) 24 Research in Nursing and Health 230, 231. 3. KPK-F Zarlashta has been widowed for over 15 years, and KPK-F Farangiz for two years. 4. Umar Daraz, Arab Naz and Waseem Khan, ‘Early Marriage: A Developmental Challenge to Women in Pakhtun Society’ (2014) 8(1) FWU Journal of Social Sciences 91; Chata Malé and Quentin Wodon, ‘Basic Profile of Child Marriage in Pakistan’ (2016) The Health, Nutrition and Population Knowledge Briefs of the World Bank . 5. Aamir Jamal, ‘Engaging Men for Gender Justice: Overcoming Barriers to Girls’ Education in the Pashtun Tribes of Pakistan’ (2014) International Journal of Social Welfare 1, 3; Daraz, Naz and Khan, above n 4; Malé and Wodon, above n 4. 6. Armando Geller, Joseph F Harrison and Matthew Revelle, ‘Growing Social Structure: An Empirical Multiagent Excursion into Kinship in Rural North-West Frontier Province’ (2011) 5(1) Structure and Dynamics 1, 6. 7. Kecia Ali uses the phrase ‘silent acquiescence’ to describe silence as a form of lawful consent from virgin women in the Hanaf¯ı madhhab: see Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010) 37. 8. Muhammad ibn Adam al-Kawthari, Al-Arba ‘¯ın: Elucidation of the Forty Had¯ıths on Marriage (Turath Publishing, 2013) 62. 9. Ibid 3; Jeanne Berrenberg, ‘Beyond Kinship Algebra. Values and the Riddle of Pashtun Marriage Structure’ (2003) 128 Zeitschrift fur Ethnologie 269; Noor Sanauddin, Jamil Ahmad Chitrali and Shakeel Ahmad, ‘Chadar and Chardiwari: An Outline of Pashtun Patriarchy’ (2015) 22(2) PUTAJ Humanities and Social Sciences 63, 67. 10. Al-Kawthari, above n 8, 60–1.

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11. Sanauddin, Chitrali and Ahmad, above n 9. 12. Syed Waqar Ali Shah, Ethnicity, Islam and Nationalism: Muslim Politics in the North-West Frontier Province 1937–1947 (Oxford University Press, 1999) 34. 13. Muhammad Ayub Jan and Shahida Aman, ‘Islam and Pakhtunwali: Convergence and Divergence of Religious and Cultural Identities among the Pakhtuns of Pakistan’ (2015) 6(2) Peshawar Islamicus 15, 18–20; Arab Naz and Hafeez-ur-Rehman, ‘Pakhtunwali versus Islam: A Comparative Analysis of Women’s Rights in Islam and Their Violation under Pakhtunwali (Pakhtun Code of Life) in Khyber Pakhtunkhwa Pakistan’ (2011) 1(2) International Journal of Humanity and Social Sciences 22, 23; Sanauddin, Chitrali and Ahmad, above n 9, 67–8; Ghulam Shams-ur-Rahman, ‘Pashtunwali and Islam: The Conflict of Authority in the Traditional Pashtun Society’ (2015) 35(1) Pakistan Journal of Social Sciences 297, 304.

6 Findings on Shur ¯ a: ¯ A Story of ‘Shame’ in Pashtun Culture

The previous chapter analysed data on the first element of consent. Marriage without consent, and acquiescence to marriage, manifested in the personal consent experiences of the male and female interviewees— both of which prima facie contravene the Hanaf¯ı requirement for willing consent from b¯aligh men and women in marriage. While the belief that consent is not often sought in Pashtun culture was evident in the interviewees’ responses, the majority personally believed that consent should be sought prior to marriage, placing importance on the notion of willing consent. Significantly, the majority were also aware of the ways in which Pashtun consent practices diverged from the principles of their religion, consciously attributing the divergence to Pashtun cultural norms. Following from consent, this chapter presents my findings on the second element of ‘sh¯ur¯a’ (consultation) in consent-seeking as the Hanaf¯ı jurisprudential ideal. In order to act in her best interests, the father-wal¯ı as legal guardian must consult his b¯aligh daughter when contracting marriage on her behalf—an essential part of the wil¯ayat mush¯araka (guardianship-partnership) in Hanaf¯ı jurisprudence. In essence, Hanaf¯ı jurists envisaged mutual engagement and consultation between fathers © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_6

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and daughters, as part of the obligation to obtain consent.1 The expectation to engage in sh¯ur¯a stems from the legal capacity of b¯aligh persons in the Hanaf¯ı madhhab, in that reaching bul¯ugh (majority) confers the same legal autonomy upon a woman as it does upon a man.2 In this chapter, I analyse the interviewees’ personal experiences with sh¯ur¯a prior to marriage, followed by an examination of their personal beliefs on the appropriateness of sh¯ur¯a in Pashtun culture generally. The findings will show that unmarried Pashtuns consider marriage a taboo topic of discussion with parents due to the shame (sharam) attached to such discussions in Pashtun culture. Like the findings on consent, the interviewees largely believed that parents should consult their children for the purpose of contracting marriage on their behalf, even though it is not generally accepted in their culture. However, the interviewees were more unsure in their beliefs on the permissibility of marriage consultation in Islam, in that most were unsure as to whether such conversations were ‘immodest’ from a religious perspective. The findings on sh¯ur¯a in particular will highlight the strength of Pashtun cultural norms on the consent-seeking process, as well as the knowledge gap that seems to exist among Pashtuns on certain aspects of their religion. Unlike the data on consent, the findings on sh¯ur¯a were less conducive to being broken down into jurisprudentially ascertained themes. The reason for this was twofold: jurisprudential literature on sh¯ur¯a pertaining to marriage and consent-seeking was much more limited in comparison to the literature on consent. Sh¯ur¯a is primarily described by jurists as a consent-seeking expectation or ideal, not as a legal element that is relevant to the validity of marriage. In other words, marriage that is contracted with consent, but without consultation, is not legally invalid in the Hanaf¯ı madhhab (nor in shar¯ı ‘a generally), although it is strongly encouraged, even expected, in the case of b¯aligh persons. Consequently, the data obtained on sh¯ur¯a was organised into the following overarching themes, which are used to present my analysis in this chapter (Table 6.1). These themes will help to determine whether there is evidence of a gap between sh¯ur¯a as the jurisprudentially envisaged ideal, and sh¯ur¯a as practiced in the Pashtun cultural context of Khyber Pakhtunkhwa (KPK). However, as sh¯ur¯a is not a legal element of valid marriage in

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Table 6.1 Themes identified in data on ‘shur ¯ a’ ¯ Theme 5: Theme 6: Theme 7: Theme 8:

Interviewees’ Personal Shur ¯ a¯ Experiences Marriage Shur ¯ a¯ between Parents and Children in Pashtun Culture According to Interviewees Interviewees’ Personal Beliefs on Shur ¯ a¯ Interviewees’ Attitudes and Beliefs on Shur ¯ a¯ from Islamic Perspective

Hanaf¯ı legal doctrine, analysis of this element will inform discussion on the process of consent-seeking at a broader ‘spirit of the law’ level, alongside the ‘black-letter’ legalities of marriage consent (first element) and guardianship (third element), which I undertake in Chapter 8. Considering legality alongside the ideal will inform a more holistic analysis of consent-seeking among the Pashtun Muslims in KPK.

Interviewees’ Personal Shur ¯ a¯ Experiences (Theme 5) The following section analyses data on the interviewees’ personal sh¯ur¯a experiences prior to marriage (or lack thereof ). As with the themes in the previous chapter, step-by-step analytical questioning was undertaken for all themes that emerged from the data on the element sh¯ur¯a, for the purpose of comparing the personal experiences, knowledge, and beliefs of the interviewees against sh¯ur¯a as the jurisprudentially described ideal.

Theme 5.1: Personal Experiences with Shur ¯ a¯ Before Marriage Of the 31 Pashtuns interviewed, only 6 recounted personal experiences that can be described as sh¯ur¯a prior to marriage (~19%). Importantly, sh¯ur¯a prior to marriage must be distinguished from the interviewees being asked for consent alone. Throughout the rest of this chapter, I refer to sh¯ur¯a in terms of the scholarly definition set out earlier in Chapter 3; that is, sh¯ur¯a as mutual consultation between parents and

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children on marriage and spousal decision-making, prior to marriage being contracted. Of the interviewees, two of the seven women in KPK (~29%), and four of the eleven Australian Pashtun women (~36%) were consulted for marriage by one or both of their parents. Of these, one woman in KPK detailed the most consultative process. However, her premarriage consultation was not limited to her parents as she also consulted her potential in-laws, and was driven by her own forthrightness in marriage (and personality generally). On the other hand, two of the four Australian Pashtun women discussed marriage and prospective partners with their mothers only: Zarlashta (50-59 yrs): He was my cousin, and I knew him. But I told them that, ‘no matter, I’m asking you because he’s a part of your home, what is he like?’ you know. Uzma (30-39 yrs): Before? Yeah, yeah, I was very close to my mum, so you always knew what we both knew. Always knew what kind of person I’ll never get married to, so it was quite well understood between us. …

In contrast, 25 of the 31 interviewees did not engage in any type of sh¯ur¯a or consultation with their parents prior to marriage (~81%). Significantly, all of the male interviewees, both in KPK and Australia, never engaged in any consultation prior to marriage: [Q: Did you ever talk to your parents about marriage, or who you wanted to marry?] Arman (40-49 yrs): No. [Q: Did you ever speak to anyone about it?] No, with no one.

Of the 25 interviewees never consulted before marriage, eleven responded in absolute terms (6 male, and 5 female). In these responses, interviewees said that they either ‘never’ or ‘absolutely’ did not discuss marriage with their parents. For example, one male interviewee said that his parents did not consult him before getting him engaged, while

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another said that he ‘absolutely’ could not speak to his parents about marriage, attributing this to the shame attached to such discussions: [Q: ... So did you ever talk to your parents about who or the kind of person you wanted to marry?] Chamtaara (60-69 yrs): No child, absolutely not. Storai (30-39 yrs): No, no. There was no talking whatsoever. Rangeen (40-49 yrs): [laughs] No, kana! I told you, didn’t I! With our parents, I absolutely couldn’t, you understand? I didn’t, and they didn’t with me, either. Yeah. We’re old style Pukhtuns [laughs].

Speaking as a parent himself, one KPK male said that he did not consult his own children in the process of contracting marriage on their behalf, much like his own experience. He said his children ‘know nothing’ of their prospective marriages, and that he does not seek to inform them either: Hukam (60-69 yrs): Yes yes! Mine, and now when I’m organising the rishtas [proposals] for my children, they know nothing, I’m the one going and organising it, and I don’t tell them. Yeah, of course!

It was clear that the majority of the interviewees were never consulted by their parents prior to marriage. This is significant, given that the overwhelming majority also had their marriages arranged by their parents. This finding seems to corroborate existing research on marriage in Pashtun culture, which contends that Pashtun marriage and spousal decision-making is often undertaken without any involvement from the parties subject to the marriage.3 It also indicates that the unwillingness to engage in sh¯ur¯a on marriage may be an intractable norm in Pashtun culture, and one which parents continue to practice when organising marriages for their own children, even in modern times.

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Theme 5.2: Who Engaged in Shur ¯ a¯ with Interviewees Before Marriage? The previous section found that only 6 interviewees were consulted by their parents before marriage, all of whom were female. Of these, three only ever discussed marriage with their mothers. One discussed her prospective husband with her mother before accepting his proposal, specifically noting that these discussions never included her father. Two other women also comfortably discussed marriage and prospective husbands with their mothers while unmarried. On the other hand, three women said that they had been consulted by their fathers about marriage. Two of the Australian Pashtun women recounted their experiences very positively, both saying that they were approached by their fathers in a meaningful way before marriage. One attributed her positive experience to the religiosity of her father, and the other to the extensive educational background of her family. The latter was consulted by both her parents; by her mother throughout the process, and by her father to obtain her opinion before accepting the proposal on her behalf. However, she specifically noted that the consultation did not extend to ‘taboo’ discussions, such as discussing her personal preferences in a spouse: Angeza (30-39 yrs): Actually, like I would probably say both my own home and our own family environment, whenever my father took a decision, before taking a decision, they just discussed the matter with my mother, with us, and after that, the decision, the final decision is of my father, but after getting consent from each and every one. Yeah, this is the process. … So they never asked us what type of guy you like, and we didn’t tell them. Not even for a single time … like, we never just discussed these things with them. And exactly, this is a taboo something.

It was interesting to note that both women came from vastly different socio-economic and religious backgrounds; one was from a religious village background, the other from an educated urban one. However, the point of convergence in their positive experiences seemed to point to

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their fathers specifically, and parents generally. Another of the Australian Pashtun women also described being consulted by her father, however, did not describe her experience as positively as the others. This was attributed to the fact that her consultation was not as in-depth in nature and was limited to consent alone. She also made reference to the taboo nature of marriage discussions in Pashtun culture: Jabeen (40-49 yrs): … I was lucky, my father, may Allah bless his soul, was a very ... um, open in that regard … my father would take me aside, like ask me the question and discuss with me, and he would always say, ‘your answer, if you say yes, it’s a yes, if you say no, it’s a no.’ … But apart from that, there is not much details you can go in[to].

Among the 6 interviewees who were consulted before marriage, there was equal representation in terms of sh¯ur¯a engaged in by mothers and fathers in the interviewees’ sh¯ur¯a experiences.

Summary of Theme 5 Findings Overall, it is evident that there was a very low level of consultation reported between the Pashtun interviewees and their parents prior to marriage. The vast majority were never consulted prior to getting married (~81%), and many of these interviewees said that their inability to engage in such consultation was absolute. There was a distinction drawn by some of the interviewees between merely being informed/informing, and engaging in mutual sh¯ur¯a for the purpose of deciding upon marriage. For example, among the 6 interviewees who were consulted, one felt that the consultation with her father could only be characterised as seeking consent, as opposed to discussing marriage in the context of her future plans, or prospective husband specifically.

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Marriage Shur ¯ a¯ Between Parents and Children in Pashtun Culture According to Interviewees (Theme 6) This section examines the interviewees’ attitudes and beliefs on marriage sh¯ur¯a in Pashtun culture generally.

Theme 6.1: Consultation Before Marriage in Pashtun Culture Thirty of the 31 interviewees (~97%) believed that marriage sh¯ur¯a between unmarried children and their parents was not common in Pashtun culture. Two reasons were provided by the majority: the strength of cultural norms, which have long discouraged children from discussing marriage with parents and elders—and within these cultural norms, the sharam (shame) that is attached to discussing marriage openly in Pashtun culture. Twenty-two interviewees believed that cultural norms effectively discourage pre-marriage sh¯ur¯a between Pashtun parents and children. Most of these felt that such norms are ingrained from infancy, and subsequently inform the behavioural and conversational parameters that unmarried children must abide with parents: Sangina (20-29 yrs): Because from start, from birth I think, we are looking at this as not good. Like you can’t really talk with your father, it’s not good, yeah. Even you can’t sit in front of your father without covering your head, like that. So from start we are used to these things. So for us, it’s not new thing. Asfandyar (40-49 yrs): Yeah, it’s the tradition. It’s the tradition, you know. Like the children are not that advanced, they are not bold to discuss with their parents ahhh, they are shy, and the culture is not like that, that they goes to their parents and say that ‘now I want to marry’. So it’s just because of the traditions, the culture over here, and ahh, yeah, things like that.

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Openly discussing marriage was described as unacceptable in Pashtun culture by many of the interviewees. Three of the female interviewees felt that these cultural norms dictate whether girls are ‘good’ or ‘bad’—determinations of character that are extremely important to Pashtun parents. Girls who offer outward expressions of opinion were not only described as the ‘worst’ of girls, but also as ‘outspoken’—an undesirable trait in a marriageable Pashtun girl: Fakhri (20-29 yrs): Mostly, in our Pashtun culture, if the parents have these conversations, they absolutely feel ... like a hesitation, like they can’t do it, because of that sharam and things like that. And some say only the worst girls have these kinds of conversations [laughs]. In our Pashtun culture, nobody talks about this. Jabeen (40-49 yrs): … She will not be able to explicitly come out and say, or even look at it as that is her choice, or for her to do. She would herself look at it, that that’s not the behaviour of a good girl, you know what I’m trying to say? The girls there also can see, because there is cultural norms, values, beliefs are so ingrained in how they’re brought up, the girls will like, not even ask, or not say, or not express, because then they will be seen as bad girls and not good girls.

For five of the interviewees, the concept of in-depth conversations about marriage was so alien, that the notion of ‘consultation’ was immediately equated to that of consent. For these interviewees, there was a feeling that Pashtun parents may not even know how to speak to their children about marriage within the traditional confines of culture: Uzma (30-39 yrs): … So again, it depends on how their relationship is with their parents. Most of the time, it’s very formal. So, they never go into those details about what, they just say yes, the girls are just supposed to say yes or no, and they didn’t ask in much detail …

Significantly, twenty-five interviewees (~81%) specifically mentioned that openly discussing marriage was linked to the notion of shame in Pashtun culture (or shamelessness in this context). For these interviewees, the association with shamelessness disinclines children from discussing marriage with parents, and particularly fathers. One male interviewee

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explained that shame plays a role in hindering consultation regarding marriage, even when parents feel it is appropriate to discuss such topics with their children (i.e., when they are well into marriageable age). This was reflected in the personal sh¯ur¯a experiences of the interviewees, the majority of whom did not feel comfortable discussing marriage, or potential spouses, with their parents: Ikhtiar (30-39 yrs): Yeah, so definitely like you know, when this is not common, and when the parents ahh, have never had this kind of discussion with their kids right from the start, so that shame thing or the sharam [shame] thing will definitely develop over time, and then that kind of, of plays a role in it as well. So then at a later stage, if even when the parents think ‘okay, it’s the right time to ask them’, and then when they ask them, so at that time the boy or the girl could be, like you know, be facing a little bit of sharam or shame, or a bit shy.

Interestingly, for the majority, the contracting of marriage was the discharge of a unilateral parental responsibility, not something that required discussion or consultation to be concluded successfully: Jabeen (40-49 yrs): It is shameful in a way of communicating with their children. Marriage is important for the parents, you know, like making sure that their kids are married in the right place, right time, right people and all of that. But discussing this with their kids is a completely different topic.

Thus, 30 interviewees (~97%) were of the view that marriage sh¯ur¯a between unmarried children and parents was not common practice in Pashtun culture. The majority of these felt that cultural norms (~71%), and the association of such discussions with shame (~81%), were the primary reasons for the lack of consultation in their culture.

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Theme 6.2: Mothers cf. Fathers in Marriage Consultation Twenty-three interviewees (~74%) believed that if sh¯ur¯a does occur prior to marriage, it is much more likely to occur between mothers and daughters, and will rarely occur between fathers and daughters in Pashtun culture: Sangina (20-29 yrs): Because the father will not directly talk with the daughter in our culture, because of cultural respect or something, they should not talk direct with their daughters. Mothers should talk with their daughters. Parkha (20-29 yrs): … so it’s very important to ask her, and to talk to her ... not, not with the father, because they have some issues, so then with mother openly. [Q: What do you mean by issues?] Ahhh like sharam [shame] [laughs] Yeah, you can’t talk to your Dad, ‘I want this in my guy, and that.’

Five of the men in KPK also evinced this belief, three of whom felt that sh¯ur¯a between mothers and daughters was not only more possible, but more preferable. One of the men said it was ‘better’ for a father to ascertain how his daughter feels through his wife. It was interesting to see that most of these men displayed varying levels of personal discomfort with the idea of discussing marriage with daughters—a discomfort that was not reflected among the Australian Pashtun men. For example, one of the Australian Pashtun men vehemently disagreed with the distance that exists between many fathers and daughters in his culture: Kaihan (60-69 yrs): … Well it’s ... he will listen to the daughter also, but it’s somehow you know, culture - culture is working in a different way. It’s just that one of the values, that daughter should talk to mother rather than father, it’s more like that respect thing between the two, which is not respect, but they call it respect …

Although they were not uncomfortable with the idea, two Australian Pashtun men did echo the sentiments of the men in KPK, stating

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that marriage consultation was more conducive between mothers and daughters: Arman (40-49 yrs): It should, but I think that the mother is better able to do this, and the girl tells her mother openly, meaning ... whether it’s a girl or boy, there’s a distance from their father, not with their mother. They’re closer to the mother, and with the father, there are many things they can’t talk about with their father, but do with their mother, whether girl or boy. So it’s better that even if a man is asking, that he does it using his wife, then that is more able to be done, and she can tell him.

Many of the 25 interviewees who were not consulted for marriage also felt that sh¯ur¯a was generally more conducive with mothers than fathers. For example, although he did not speak to either parent prior to the transaction of his own arranged marriage, one interviewee explained that if he had to discuss marriage with his parents, he ‘would’ only speak to his mother: Jahangir (30-39 yrs): Well that’s pretty much like - like in my case, I’m pretty much more frank with my mother as compared to my father, so if I have to talk on any of these issues, I’ll be talking to my mother. It’s more like the mother is a soft target rather than the father. Like it’s - you should know better, like it’s easy for you to talk to your mother rather than to your father.

It was clear that the majority believed the mother-daughter relationship to be more conducive to marriage sh¯ur¯a in the Pashtun cultural context of KPK. For many of the male interviewees, this relationship was not only more conducive, but was also more acceptable given the cultural norms that hinder such discussions among Pashtun parents and children.

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Theme 6.3: Indirect Communication as ‘Consultation’ in Pashtun Culture Seven interviewees (~23%) felt that although direct sh¯ur¯a was not common between unmarried children and parents, it may exist as an indirect phenomenon in Pashtun culture. For these interviewees, the inability to speak to parents directly about marriage necessitated third party consultation, often directed by the child subject to marriage themselves. For example, four of the female interviewees said that girls can use aunties or sisters to relay their opinions and desires to parents indirectly, which amounted to an indirect form of communication between daughters and their parents. However, it is important to note that the relaying of information in this way does not reflect mutual sh¯ur¯a in the jurisprudential sense: Chamtaara (60-69 yrs): Yes child, but just, I don’t know, our people can’t do that, our entire culture is like this. Or sometimes it’s like this, that they tell their aunty, phuppo [father’s sister] or khala [mother’s sister], they discuss this kind of thing with them, that ‘tell my mother this’, but nobody can tell their parents directly.

Only two of the interviewees indirectly communicated their desires to their parents during their own marriage processes: Farangiz (60-69 yrs): … I told my eldest sister-in-law, that these two women, they’re coming and asking for me, but don’t give me to either of those two women, I don’t like them. And in the other two, I said if you’re giving me to one of them, then give me. Nufail (30-39 yrs): No, mine was like ... he would be a cousin in a small way, and my friend, so he was the one who gave the message for me. I didn’t do it myself.

The notion of communication via a third party as the equivalent to ‘sh¯ur¯a’ indicates the rarity of true marriage sh¯ur¯a among Pashtuns in KPK. According to the interviewees, indirect communication is

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necessary because of the shame attached to such discussions—thereby necessitating a pathway of communication that does not reflect the religious conception of sh¯ur¯a in Pashtun cultural practice.

Theme 6.4: Shur ¯ a¯ and the Pashtun Cultural Value for Sharam (Shame) Theme 6.1 revealed that 25 interviewees (~81%) believed that openly discussing marriage with parents was shameful in Pashtun culture (Theme 6.1). A vast amount of data was obtained on the idea of ‘shame’ related to discussing marriage, which is presented in this section. It will become clear that the concept of shame specifically pervaded the interviewees’ responses on their personal experiences as well: Benafsha (40-49 yrs): Because they think it’s very ... not appropriate. It’s a very shameful act to talk about - first thing, to talk about or think about your marriage is very shameful act, you know what I mean? Amail (40-49 yrs): Yeah. It’s, it’s a big ... obstacle, I would say. That ah ... traditionally they expect from womans, as a part of her being considered as modest, to be having sharam, and not talking openly about her marriage to ... parents is a big - even like, if in front of parents, to somebody else, it’s not considered good. And they’re labelled something which goes against that sharam. So it’s a big part.

These interviewees clearly felt that shame governed the lives of children, particularly daughters, in Pashtun culture. For example, one of the women in KPK explained that shame arose out of a cultural aversion to the notion that children could direct their parents in any way. Respect for elders was found to be an exceptionally strong cultural expectation, both in existing literature on Pashtun culture, and in my research findings. This shame was engendered to such a degree, that according to one interviewee, unmarried girls are raised to ignore, and to even physically remove themselves from discussions about their own marriage that occur in their vicinity. Interestingly, one of the male interviewees felt that the stigma attached to such discussions resulted from the perception of what

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was appropriate, rather than an inherent shamefulness in the topic of marriage: Uzma (30-39 yrs): Yeah, so I think for the girls, it’s just considered ... that a girl has to be, you know, she shouldn’t talk, she shouldn’t – that’s how the girl grows up, listening to this stuff from older women, that we’re not supposed to talk about this stuff, and stay quiet, or if somebody else is talking about your marriage, you just walk away if they are elders. So that’s all culture. Amail (40-49 yrs): Yeah. So if somebody’s talking about these things ... like, here, if they talk and nobody’s thinking it’s a bad thing or it’s a sharam thing, just because it has become very common with the practise of so many years.

It was interesting to hear one interviewee explain that there was ‘a way’ in which daughters could speak about marriage without attracting shame, implying that tact or strategy was required to discuss the otherwise unacceptable topic of marriage in Pashtun culture. Another interviewee felt that girls are ‘free’ to discuss marriage with their mothers, but only if there is a close enough relationship to allow for such discussions without judgement: Fakhri (20-29 yrs): It’s just a ... one thing is that a girl can’t do it, like in front of her father, she can’t talk about her wedding at all. She can’t. In our culture, she absolutely can’t talk about it with her father, and with her mother, if she has an attachment with her mother, then she can talk to her, but if not, if there’s no attachment, then also not with her, she can’t even hint at it. Like, if a person spends their time in a very strict environment, then they definitely can’t discuss this at all. Either some of us can, otherwise no.

Four interviewees categorised marriage as a ‘taboo’ topic for unmarried children to discuss openly, but did not extend this to older and/or married Pashtuns. One interviewee felt that his culture created a ‘prison of mind’ with the pervasive anxiety surrounding issues pertaining to everyday life:

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Kaihan (60-69 yrs): This [discussing marriage] is a taboo ... Like every day there are marriages in every family, but at the same time, to talk about this is something like, forbidden. And they have made the situation like, ‘oh this is so bad for a girl to speak out or something like that’, so it plays the biggest role, and you know, this shyness and things, shyness is the prison of mind. So they are already imprisoned because of this culture, values and so on that are developed.

Eight interviewees specifically tied the notion of shame to the maintenance of modesty and respect, particularly for unmarried girls, although this was evident for both male and female children. These interviewees organically employed the term ‘modesty’ when responding to the question of shame being attached to marriage conversations in their culture. This indicated a perception that the two concepts were inextricably linked; shame begets modesty, and shamelessness begets immodesty: Begum (40-49 yrs): Sharam [shame]? I think it’s the main thing, because they’re shy, they don’t speak up in front of parents. Even with elder sisters, they keep quiet and things like that. Main thing is sharam. And haya [modesty]. Nufail (30-39 yrs): Well ... over here, it’s the same thing again, the thing about haya [modesty] and sharam [shame] …

Of the 25 interviewees who felt that discussing marriage was shameful in Pashtun culture, only three did not consider the intertwining of marriage sh¯ur¯a and shame negatively. All three were interviewees in KPK (two women and one male). For example, one interviewee described her own daughters as ‘shy’ of their parents and seemed proud that this was the case. This interviewee seemed to believe that acquiescence was more acceptable than discursiveness in the marriage process. Two others also felt that the shame and dishonour attached to such discussion were a ‘good’ thing in their culture, with one of the older women in KPK evincing very romantic notions about shame in her culture, particularly in the past. She described Pashtun culture of the past as having embodied more modesty and wholesomeness than the culture presently, particularly within the context of the family home:

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Farangiz (60-69 yrs): … Yes, it’s good, of course. Shame, modesty, honour are good.

Thus, the majority felt that the association between discussing marriage and the concept of shame hindered the ability of parents and children to openly engage in mutual sh¯ur¯a. A minority (3 out of 31) felt that this association was positive in the context of appropriateness, however, the vast majority did not believe that such discussions should be considered as shameful as they seem to be in Pashtun culture.

Summary of Theme 6 Findings Thirty of the 31 interviewees (~97%) believed marriage sh¯ur¯a to be uncommon in Pashtun culture. The main reasons provided for this were Pashtun cultural norms and the ‘shamelessness’ that is attached to unmarried children who openly discuss marriage in Pashtun culture. Twenty-five (~81%) believed that their culture rendered it shameful for daughters to speak to their parents about marriage. Some of the interviewees tied the concept of shame to the maintenance of modesty and respect. Overall, there was much allusion to the concepts of shame, modesty, and respect in the interviewees’ responses to the question of pre-marriage consultation in KPK.

Interviewees’ Personal Beliefs on Shur ¯ a¯ (Theme 7) The following section analyses data on marriage sh¯ur¯a from the interviewees’ personal perspectives. The data presented below demonstrates the variety of beliefs on the importance, and appropriateness, of sh¯ur¯a among the Pashtun interviewee sample.

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Theme 7.1: Interviewees’ Beliefs on the Importance of Shur ¯ a¯ Before Contracting Marriage When asked about the importance of sh¯ur¯a prior to marriage, 25 interviewees (~81%) personally believed such consultation to be important before parents contract marriage for their children. The majority felt that sh¯ur¯a was necessary due to the impact that marriage has upon the lives of women, and subsequently felt that such a decision must be made consultatively. Many of the women felt that ongoing consultation was the only way that parents could ascertain readiness for marriage, and to understand what their son or daughter may be looking for in a life partner. These interviewees were of the view that this is particularly important in a culture where marriage is expected for every unmarried child, but is not discussed freely with unmarried children. One interviewee thought that consultation was ‘absolutely’ important, saying that if daughters could not be afforded the right to choose their own spouses, they should ‘at least’ be consulted in the process, if only to ensure their willingness to marry: Fakhri (20-29 yrs): Absolutely required. If they want to marry, don’t want to, what kind of person they want to marry, what kind of ideas he must have, and if he ... like I’m absolutely agreed with this, that they ask her these things, like without asking her, without discussion with the girl, they shouldn’t do anything. Like she would have her own ideals, when she’s growing up, and how they live, they have their own ideas of what kind of person, like ‘this kind of person is ideal in my life’. So I say they have this kind of discussion with her, it’s necessary they should discuss this, whether she wants to marry or not, things like that. Storai (30-39 yrs): If they [girls] can’t choose, they should at least be asked. A consultation, if the parents are willing and the girl is willing. Force is not necessary.

The importance of mutual consultation between parents and children was also described by the interviewees. For example, two noted that consultation should resemble guidance, where parents act as facilitators,

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not dictators, in the marriage process. This reflected the majority sentiment that children should be able to participate fully in the marriage process undertaken by their parents, while also respecting their parents’ authority per the cultural norm: Kaihan (60-69 yrs): To me, it’s very important. I think the girl, actually the girl should tell them what she wants. It’s not only consultation, but they should listen. It is her life. It is her life, and I think what the parents should do - they should act like facilitators.

Of the 25 interviewees who believed that consultation prior to marriage was important, eight (~26%) explicitly stated that such consultation was better engaged in by mothers. These interviewees felt that children, particularly daughters, were naturally closer to their mothers, and this would allow for greater frankness in such discussions. Interestingly, one interviewee distinguished between the decision to embark upon the marriage process (which he relegated to both parents), and indepth consultation (which he believed was better undertaken by mothers alone): Asfandyar (40-49 yrs): There are so many, there are so many ways. Like you know, in our culture, or in our society, even in all the societies, the children - especially the girls - are very attached with their mothers. So the best way is that, that she can talk to the mother, and through her, she can show her consent. Zarlashta (50-59 yrs): Yes it is. Because the girl has heart, you know. She can talk to her mother. Then the mother can give her opinion, and the girl can give hers.

Only one of the 25 interviewees felt that marriage sh¯ur¯a was only important as a symptom of Western modernity. She tied the necessity to consult daughters with the preservation of honour, lest a daughter ‘destroy’ her parents if she did not agree to the marriage they arranged on her behalf. Perhaps significantly, this opinion contrasted starkly with the rest of the interviewees—all of whom felt that sh¯ur¯a would prevent children from feeling that marriage was done to them, instead of with them:

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Farangiz (60-69 yrs): I think in today’s time, parents ask their daughters all these questions. And on one hand, it’s good that they ask her, because these times are very ‘fashiony’, very different ... very free. So they should ask. Because if tomorrow the parent’s honour is destroyed over it, then it’s good they had asked.

Four interviewees believed that sh¯ur¯a between parents and children was not important prior to contracting marriage. Two of these interviewees felt that consultation opens the door to inappropriate conversations, explaining that such discussions are only acceptable to the extent that they prepare daughters for marriage, rather than encourage discursive decision-making and ‘influence’ in the process. The other two felt that parents know their children well enough to render such consultation superfluous to the marriage process: Sangina (20-29 yrs): Yeah, if she’s a little bit older, you know that this stage she’ll get married, then you can talk a little bit. … You should aware them about the different types of persons, you should talk to them about that. You should not talk to them about, like we need, we want to marry a person that should be loving and he should be giving this and that. You should talk to them about different aspects of life, of people, that your house and your environment will be like this, you’re going to be married to another person, you should, maybe he’s good, he’s bad, like that you should teach them. So this is good.

Unlike this minority, eighteen interviewees (~58%) not only believed sh¯ur¯a to be important, but that they themselves would engage in sh¯ur¯a when undertaking the marriage process with their children: Storai (30-39 yrs): No, because if she’s upset, she will say ‘it was according to my wishes.’ And if she’s happy, she will say the same thing. She won’t be able to point the finger at me. Kaihan (60-69 yrs): Like they [parents] should do a lot of work, they should do the whole ... this is what I will be doing - do the whole research, all these things, because somebody ... women normally are, even in this culture, Islamic culture, they are quite a bit remote you know, and she should have full information about decision-making, about the family, about their values, education, what the guy is doing

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... you know ... the person bloody ugly, or a bit acceptable, healthy, sick ... does he go to work, or he just rooms around you know. So this is her rights to be given all these things.

One interviewee went so far as to say that a consultative process was a right that must be fulfilled by parents before responding to a marriage proposal. These interviewees generally felt that consultation allows children to take ownership of their futures and not feel like their marriages were imposed, or the result of a decision they did not contribute toward. This finding is closest to reflecting the intention of Hanaf¯ı jurists on the ideal process of consent-seeking, where mutual discussions are undertaken in significant private matters. Indeed, the future looks bright in this regard.

Summary of Theme 7 Findings Overall, the majority of the interviewees believed in the importance of parents engaging in consultation with children through the marriage process. The primary justification for this belief was the impact of such decisions on the lives of those subject to marriage, and subsequently, more than half said that they would consult their own children in the marriage process. Only four interviewees (~13%) believed marriage sh¯ur¯a to be unnecessary, and this seemed to result from the discomfort surrounding such conversations in Pashtun culture.

Interviewees’ Attitudes and Beliefs on Shur ¯ a¯ from Islamic Perspective (Theme 8) This section analyses the interviewees’ attitudes and beliefs on marriage sh¯ur¯a from a religious (Hanaf¯ı) perspective.

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Theme 8.1: Marriage Consultation in Islam According to Interviewees When asked whether they thought sh¯ur¯a between parents and children was religiously encouraged before marriage, 19 of the Pashtuns interviewed (~61%) espoused the belief that sh¯ur¯a regarding marriage was permissible in Islam. Here, ‘permissibility’ must be distinguished from ‘obligatory’, expected, or compulsory. The majority of these interviewees felt that discussing marriage with children was not legally required, but felt that it may be encouraged as an Islamic ‘guideline’ on how to conduct such affairs: Khushdil (40-49 yrs): It makes sense. It is ... it is one of the teachings, it is not really challenging anything, which makes a disturbance - rather than that, it can bring a kind of relationship or relief in relationship which is important to live together. So personally, basically yeah, definitely. If it was not in Islam, I would not had a ... like it is a guideline, because it is available in a guideline, I wouldn’t challenge it.

Three interviewees thought that sh¯ur¯a in the process of contracting marriage was less a choice, and more akin to religious duty. The only religious figure among the interviewees explained that sh¯ur¯a fell into parental ‘responsibility’ from a religious perspective. He said that sh¯ur¯a regarding marriage was not only necessary, but that it was sinful to contract marriage without consultation as it constitutes a type of ‘force’ in Islam: Mirwais (50-59 yrs): … And um, for me, because I know the religion, it’s my study - if they don’t consult with the girl and they don’t take her opinion, that is force, which is called zulum in Arabic. It is not fair. And later on, when they find problems in the family, you know - then, they’re cursing other people, and they don’t blame themselves. But I would say, on the day of judgement, they will be responsible for that relationship, you know. If they separate, you know, for whatever reason. But mostly like, those parents, they will be answerable to Allah SWT.

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In contrast, 6 interviewees (~19%) thought that sh¯ur¯a regarding marriage was neither permissible nor encouraged from an Islamic perspective (four in KPK, and two Australian Pashtun interviewees). Three of these believed that such discussions contravened modesty and shyness, concepts they felt were more important from a religious perspective. All three were interviewees in KPK. These interviewees extended the Islamic requirement for modesty to personal communication with parents, which reflected a cultural, and often restrictive, attitude in Pashtun society. One of these interviewees felt that the necessity to obtain consent and to consult children prior to marriage stemmed only from modernity, not religion. She believed that modernity has increased ‘shamelessness’ in modern times, which in turn led to an increase in what she believed were un-Islamic practices: Gawhar (40-49 yrs): Well, I think in this regard - look, there are some things that fall under modesty or purdah, and this is also in Islam, it’s also in our religion. So modesty doesn’t only mean that a girl just observes purdah [veil], or that she wears a burqa [traditional covering] and covers herself. Modesty also includes things like your speech. Like if you’re talking about this kind of thing, there will be things that come up that I think are unnecessary. Farangiz (60-69 yrs): Back then, when girls would get married, they would hide their faces like this [covers face with both hands]. … Girls wouldn’t even show their faces to anyone, they would just keep it hidden like this. Now they sit the girls on the sofa, and sit the man close to her, and they take pictures. So now is a time without shame, so everything is more free now.

As mentioned earlier, although I have categorised consultation as one element of consent-seeking in the Hanaf¯ı madhhab, a lack of consultation in the marriage process does not legally invalidate marriage in Hanaf¯ı jurisprudence. However, among the 6 interviewees who did not believe that sh¯ur¯a was religiously encouraged, only one interviewee made reference to the fact that sh¯ur¯a is not compulsory to valid marriage from a religious legal perspective:

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Ikhtiar (30-39 yrs): Ahhhh ... I’m not aware of any example of, of, like you know, having discussion with one’s kids of the marriage, of like the right time and the right family with the kids. And I want to differentiate this from your early question when they are asked for the consent, consent is something different. But when it comes to the general, generic discussion which will act like, as a guidance to the kids, I have not heard of any examples of this from Islamic point of view.

Four interviewees were unsure as to whether parents discussing marriage with their children was permissible in Islam. These responses were particularly important as they demonstrated a gap in religious knowledge pertaining to the legality of issues like sh¯ur¯a. However, although they did not know whether marriage sh¯ur¯a was religiously permissible with any certainty, all four felt that it was certainly preferable in the marriage process: Parkha (20-29 yrs): Yeah, I think, I don’t know I’m sorry to say about Islam ... but there should be. There is nothing un-Islamic about that [discussing marriage], so it’s good. Uzma (30-39 yrs): Not sure about whether Islam says something about having - but definitely, they have to consent, but it’s my own opinion, yeah, that the parents should be that close to their children that they know their preference.

Overall, a majority (~61%) thought that sh¯ur¯a was religiously encouraged, or at least permissible, prior to marriage. Interestingly, however, this belief contrasted with the interviewees’ beliefs on the inappropriateness of such consultation in their culture.

Theme 8.2: Awareness of Divergence Between Islamic Shur ¯ a¯ Principles and Pashtun Cultural Practice Of the 31 Pashtuns interviewed, 15 felt that there was a manifest divergence between Islamic principles on the permissibility of marriage sh¯ur¯a, and Pashtun cultural norms (~48%). The majority of these thought that

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parents unilaterally deciding on marriage, without any input from those subject to marriage, did not accord with their religion as they knew it: Jahangir (30-39 yrs): Yeah, definitely, it should be. Like it should be that way, but it’s not. It’s different, that’s what I told you in the beginning as well. Like the culture is a bit different from what our Islamic teachings are. Like, there’s not that sort of culture where actually, the man or the woman has to decide, people actually decide that. Which is, which is wrong.

In sum, almost half of the interviewees explicitly noted a divergence between Islamic principles on sh¯ur¯a before marriage, and consultation as it generally exists in their culture.

Summary of Theme 8 Findings The majority of the interviewees did believe that sh¯ur¯a between parents and children was religiously encouraged before marriage (~61%). It is interesting to contrast this with the percentage of interviewees who thought that consent was religiously compulsory to obtain prior to marriage (~90). This discrepancy reflected a cultural attitude among Pashtuns toward discussing marriage with parents, which is seen as shameful, and perhaps un-Islamic. However, the obtaining of consent was considered much more acceptable among the interviewee sample. Significantly, the data also indicated that almost half felt that there was a divergence between Islamic principles and Pashtun cultural practice on the religious acceptability of parents discussing marriage with their children (~48%).

Conclusion This chapter analysed various aspects of marriage sh¯ur¯a from the perspective of the Pashtun interviewees, including their personal experiences, their beliefs regarding the prevalence and appropriateness of such sh¯ur¯a in Pashtun culture, their beliefs on the importance of sh¯ur¯a prior to

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contracting marriage, and their knowledge of sh¯ur¯a from a religious perspective. All but one interviewee believed that sh¯ur¯a between unmarried children and parents, pertaining to marriage specifically, was uncommon in Pashtun culture (~97%). This was primarily attributed to the perception of shame that is attached to unmarried Pashtuns discussing marriage with their parents, and with elders generally (~81%). This was not only a cultural attitude evinced by the interviewees, but was also reflected in their personal consent-seeking experiences. The vast majority were never consulted prior to marriage (~81%), however, the same percentage personally believed that parents should consult children throughout the marriage process. These interviewees generally believed such consultation to be more acceptable when undertaken by mothers in the Pashtun cultural context of KPK. Significantly, the concepts of shame and modesty permeated the data on sh¯ur¯a, even though a majority felt that sh¯ur¯a was religiously ‘encouraged’ before marriage (~61%). The contrast between this percentage, and the percentage who thought that consent alone was religiously compulsory to obtain prior to marriage (~90), revealed an interesting discrepancy in how sh¯ur¯a and consent are perceived. Obtaining consent, a cursory experience when contrasted to ‘discussing’ marriage, seemed to be more acceptable to the interviewees than discussing marriage in the context of Pashtun culture. The implications of shamelessness and inappropriateness attached to marriage sh¯ur¯a in Pashtun culture are discussed in greater detail in Chapter 8. The findings on sh¯ur¯a demonstrated the strong expectation for acquiescence to parental authority, in that pre-marriage consultation was not considered necessary in a culture that expects its children to accept the decisions of parents, without involvement or contribution to the decision-making process. From the findings analysed above, it can be argued that the prevalence of cultural acquiescence and shame prevent unmarried Pashtuns from engaging in mutual discussions with their parents prior to marriage, thereby contravening the religious encouragement to engage in sh¯ur¯a for the purpose of deciding on marriage. Later in Chapter 8, I argue that the encouragement to engage in sh¯ur¯a prior to marriage becomes a requirement when contracting marriage on

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behalf of b¯aligh children, given that b¯aligh persons possess the legal autonomy to contract marriage for themselves in the Hanaf¯ı madhhab, without the involvement of a guardian whatsoever. However, before we consider the study findings in their totality, the next chapter examines the findings on the third and final element of consent-seeking: that of guardianship.

Notes 1. Burh¯an al-D¯ın al-Fargh¯an¯ı al-Margh¯ın¯an¯ı, Al-Hid¯ayah: The Guidance (Imran Ahsan Khan Nyazee trans, Amal Press, 2006) vol 1 [trans of: Al-Hid¯ayah f¯ı Sharh. Bid¯ayat Al-Mubtadi’ (first published circa 12 CE)] 491–7. 2. Ibid 492. 3. Jeanne Berrenberg, ‘Beyond Kinship Algebra. Values and the Riddle of Pashtun Marriage Structure’ (2003) 128 Zeitschrift fur Ethnologie 269; Noor Sanauddin, Jamil Ahmad Chitrali and Shakeel Ahmad, ‘Chadar and Chardiwari: An Outline of Pashtun Patriarchy’ (2015) 22(2) PUTAJ Humanities and Social Sciences 63, 67.

7 Findings on Guardianship: Where Have All the Fathers Gone?

The last two chapters presented the data on the first two jurisprudentially derived elements of consent-seeking: consent and sh¯ur¯a/consultation. To this point, the findings indicate that there do exist cultural practices which prima facie contravene Hanaf¯ı legal principles on consent in the Pashtun cultural context. Chapter 4 revealed that both non-consensual marriage and acquiescence as consent manifested in the personal experiences of the Pashtuns interviewed, and Chapter 5 showed that premarriage sh¯ur¯a (consultation) rarely occurs between Pashtun parents and their children. According to the interviewees, both acquiescence as consent, and the reluctance to engage in marriage sh¯ur¯a are attributable to the Pashtun cultural norm of respect, and the ‘shamefulness’ of marriage discussions undertaken by unmarried Pashtuns. Taken together, the findings have thus far demonstrated that cultural norms operate strongly within the context of consent and pre-marriage consultation in Khyber Pakhtunkhwa (KPK). These norms practically affect the ways in which consent is obtained, and consultation conducted, between Pashtun parents and their children. It is clear that cultural norms allow parents to direct the process of marriage for their children with little interference, particularly in the case of unmarried © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_7

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daughters. The findings have also revealed that the majority of interviewees personally believe that willing consent and pre-marriage sh¯ur¯a are important to proper consent-seeking. However, the interviewees were more certain that consent does not reflect Hanaf¯ı legal principles in Pashtun culture, than they were with regard to sh¯ur¯a/consultation. On the latter, the concept of shame permeated the interviewees’ responses and was the reason many were not sure whether such discussions were appropriate from a religious perspective either. This chapter analyses the final element of consent-seeking: guardianship (wil¯aya) in the jurisprudentially ideal process of consent-seeking. The need to investigate guardianship in this study may be questioned, given that the Hanaf¯ı madhhab allows both b¯aligh men and women to contract their own marriages without requiring permission or participation from a guardian. In practice, however, the issue of guardianship rests upon surrounding circumstances. As such, the need, but not necessity, of the wal¯ı arises when a b¯aligh woman chooses not to contract her own marriage, or when marriage is not contracted by the marriageable parties themselves as the cultural norm. Previous research has found that the vast majority of Pashtun marriages are arranged by parents on behalf of their children, and that often, those subject to marriage are not involved in the choice of when and whom to marry. In this study, the findings on consent revealed that 29 of the 31 interviewees had their marriages arranged by their parents, indicating that although b¯aligh men and women are lawfully able to contract their own marriages in the Hanaf¯ı madhhab, it is not common practice among Pashtuns in KPK. Further, all of the interviewees described the ‘Nik¯ah plaar ’ (‘Nik¯ah father’) in terms of a male relative acting as representative of the woman at the time of Nik¯ah in Pashtun culture (i.e., during the signing of the religious legal marriage contract). As explained earlier in Chapter 3, where a woman is to be represented in marriage, Hanaf¯ı jurisprudence dictates that the role is automatically conferred upon her natural wal¯ı; that is, her father, in the first instance. However, the findings presented in this chapter will show that the cultural role of Nik¯ah plaar is often undertaken by males from the extended family, not by fathers—thereby indicating that a divergence between the cultural and religious roles of

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Table 7.1 Themes identified in data on ‘guardianship’ Theme 9: Interviewees’ Recognition of Walı¯ in Marriage Theme 10: Interviewees’ Personal Experiences with Walı¯ / Nikah ¯ plaar Theme 11: Interviewees’ Perceptions of the Nikah ¯ plaar in the Pashtun Marriage Process Theme 12: Interviewees’ Beliefs on Nikah ¯ plaar and Walı¯ from Islamic Perspective

Nik¯ah plaar and wal¯ı exists in Pashtun culture. Due to the prevalence of arranged marriage as the cultural norm in KPK, the legal principles relevant to guardianship are directly relevant to any analysis of consent-seeking in Pashtun culture. In contrast to the data obtained on the first two elements of consentseeking, the data obtained on this element was difficult to divorce from the cultural context within which the interviewees responded. There were many instances of the interviewees not recognising the term ‘wal¯ı’ in the interviews, not only in the context of marriage, but in Islam generally. The concept of a ‘wal¯ı’ in the marriage process was frequently conflated with its cultural ‘equivalent’ in the Pashtun ‘Nik¯ah plaar ’,1 to the extent that the interviewees made frequent reference to the Nik¯ah plaar as an unmarried woman’s representative in marriage, in lieu of the Islamic wal¯ı. I subsequently organised the data obtained on the wal¯ı/Nik¯ah plaar into the following overarching themes, which are used to present and analyse the data throughout this chapter (Table 7.1). As outlined earlier in Chapter 3, a b¯aligh man or woman has full legal authority to contract marriage on their own behalf. Classical Hanaf¯ı jurist, Margh¯ın¯an¯ı (d. 593/1197), explained that the requirement of a wal¯ı for an adult woman was merely a sign of ‘good breeding’,2 and to ensure a charge of impudence or immodesty was not levelled against her.3 Wael Hallaq explains that as marriage involved the family unit at the time in which the scholars lived, the prevention of impudence was merely a reflection of social norms existing in the formative and classical periods of Islam, and subsequently, not a legal requirement for valid marriage in Hanaf¯ı doctrine.4 As all of the interviewees were b¯aligh at the time of marriage, none of them legally required the representation of a wal¯ı to contract marriage

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on their behalf. The rest of this chapter analyses the data obtained on the role and expectations of the Nik¯ah plaar in the Pashtun marriage process to ascertain whether the wal¯ı, as described in Hanaf¯ı jurisprudence, is reflected in the interviewees’ responses on the role of the Nik¯ah plaar . The implications of any discrepancy between the Islamic wal¯ı and the Pashtun Nik¯ah plaar are discussed in Chapter 8.

Interviewees’ Recognition of Wal¯ı in Marriage (Theme 9) This theme analyses the interviewees’ recognition of the wal¯ı in Hanaf¯ı marriage. It is important to note that I sought to ascertain interviewees’ recognition of the term ‘wal¯ı’, distinct to the Pashtun term of ‘Nik¯ah plaar ’. However, I switched to the term ‘Nik¯ah plaar ’ where an interviewee did not demonstrate any recognition of ‘wal¯ı’ in the interviews, or where an interviewee themselves equated the wal¯ı with the Pashtun Nik¯ah plaar in marriage. Of the 31 Pashtuns interviewed, 13 demonstrated recognition, as well as some understanding, of the ‘wal¯ı’ with specific regard to the transaction of marriage (~42%). The term was most recognised among the Australian Pashtun females (6 out of 11); however, this could have been attributable to the fact that this demographic contained the highest number of interviewees. The thirteen interviewees provided various descriptions of the wal¯ı’s role in marriage, including the wal¯ı as the ‘guardian’ of the woman getting married, the physical ‘representative’ of the woman, the representative of her family (i.e., parents) in the marriage transaction, the person who acts as a ‘guide’ for the woman, the person who accepts or rejects marriage on her behalf, or someone who can sign the marriage contract on behalf of either marrying party: Helai (20–29 yrs): I just little bit know about the wal¯ı. Like when the girl or the boy is not present at the Nik¯ah moment, so they can, they will sign it on her behalf, on her or his behalf. Awalmir (50–59 yrs): Wal¯ı is a person that you consider as your guide, or the person who can speak on your behalf, or the person that you will

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agree with the person making a decision on your behalf. And normally, wal¯ı is picked by the family, and in most cases, in most cases the girl knows who her Nik¯ah wal¯ı is, yeah.

Interestingly, Awalmir stated that the wal¯ı is ‘picked by the family’ for the girl subject to marriage, whereas in all four major Sunni schools of thought, wil¯aya (or ‘guardianship’) is automatically conferred upon her father unless he is otherwise unsuitable to undertake the role in her best interests. In the same way as Awalmir, eleven of the 13 interviewees also described only aspects of the Islamic ‘wal¯ı’ in marriage, without demonstrating understanding of the role in its entirety. Only two interviewees demonstrated a deeper understanding of the role in the context of marriage, one of whom was the sole religious figure in the research sample. These interviewees described the wal¯ı in terms that encompassed most aspects of the wil¯ayat mush¯araka (‘guardianship partnership’), including the father as natural wal¯ı of a daughter, and the notion that he should contract marriage only after taking into consideration her opinions and best interests: Angeza (30–39 yrs): Wal¯ı is not only just you are signing, or you are answering instead of your daughter, or the person, the girl who is getting married, it is something like you are taking a full responsibility of a girl. Like providing a security, like you are signing, or you are answering her after getting a whole check to get everything knowable about the guys and their family. Like it is mainly, what I think is taking a full responsibility of a girl. It is not something like just you answering on her behalf.

In contrast, the majority (18 out of 31) did not recognise the term ‘wal¯ı’ in relation to marriage at all (~58%). This included a majority of the men (~67%) and women (~71%) in KPK, and less than half the Australian Pashtun men (~43%) and women (~45%). The term was also more recognised among the Australian Pashtun interviewees, than the interviewees in KPK (~58% of Australian Pashtun interviewees cf . ~ 31% of interviewees in KPK). This finding seems to indicate a higher level of religious awareness among the Pashtun interviewees in Australia compared with those in KPK—a potentially significant finding that is discussed further in Chapter 8.

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Some of these interviewees confused the wal¯ı with a mahram (unmarriageable male relation) in Islam, or defined the role as merely that of a ‘witness’ in the marriage formalities. I subsequently categorised those interviewees as not having recognised the term ‘wal¯ı’ during data analysis: Farangiz (60–69 yrs): … No, I don’t know this … I don’t recognise ‘wal¯ı’, what is called a ‘wal¯ı’. If I find out what a wal¯ı is, I will give you an answer. Shinogai (30–39 yrs): I don’t …. mmmmmm … like what kind of ‘wal¯ı’? I’m confused about the question. Hukam (60–69 yrs): Well, if you tell me what ‘wal¯ı’ is, then I can tell you. I know that in the Nik¯ah time, there are two witnesses there. Khushdil (40–49 yrs): … I think that’s the one which ahhhh … a girl has, at time of marriage, has a wal¯ı. One wal¯ı is like all those people who are … aren’t wal¯ı the ones who a girl can’t get married to?

However, all of the interviewees who did not initially recognise the term did understand the concept when I equated with the Nik¯ah plaar in the Pashtun cultural context. As noted earlier in Chapter 3, the role of Nik¯ah plaar has not been examined in existing literature on Pashtun marriage. In seeking to address this gap in the literature, I found that the Pashtun Nik¯ah plaar role was not entirely synonymous with the role and expectations of the wal¯ı in Islamic marriage. Indeed, it became clear that the majority of the Pashtun interviewees did not recognise the role from an Islamic legal perspective at all: Zala (20–29 yrs): What does wal¯ı mean? Well, it’d be what I’m saying, wouldn’t it? The one they call the girl’s Nik¯ah plaar , that’s what they call it in Pukhtu anyway … Other than that, I don’t really know. Gawhar (40–49 yrs): Nah, ‘wal¯ı’ … like what we call the Nik¯ah plaar ? Kaihan (60–69 yrs): Wal¯ı … you mean the person who is normally called the father (plaar) of Nik¯ah? Khushdil (40–49 yrs): Yeah, Nik¯ah plaar . Okay yeah, that’s the one. So yeah definitely, I’m aware of it. There is a Nik¯ah plaar who actually conveys the message from the girl to the mullah [religious authority conducting the marriage ceremony], and then brings the message.

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Summary of Theme 9 Findings Thirteen of the 31 interviewees demonstrated recognition and some understanding of the ‘wal¯ı’ in marriage (~42%), and the proportion who recognised the term was higher among the Australian Pashtun interviewees than those in KPK. Only two interviewees described the role as akin to the ‘guardianship partnership’ (~6%) in Hanaf¯ı jurisprudence, both of whom were Australian Pashtun interviewees. The vast majority only understood the concept of a wal¯ı in marriage when it was equated with the Pashtun Nik¯ah plaar . However, although the interviewees were more likely to understand the concept when equated with the Pashtun ‘equivalent’, the need for it to be equated with the cultural role indicated that the majority did not recognise the wal¯ı from a religious legal perspective at all.

Interviewees’ Personal Experiences with the Wal¯ı / Nikah ¯ Plaar (Theme 10) The following section analyses data on the interviewees’ personal experiences with the Nik¯ah plaar during their own marriage processes. The importance of this analysis stems from the conflation of the Nik¯ah plaar with the religious role of wal¯ı, established in the preceding section. This theme was particularly fascinating, as it was almost entirely concentrated within the personal experiences of the female interviewees only. The Pashtun Nik¯ah plaar operates in a way that is similar to the Islamic wal¯ı, in that the role does not exist to represent men in Pashtun marriage. The male interviewees represented themselves in marriage and, therefore, did not require a Nik¯ah plaar to act on their behalf. None of the men interviewed had acted as Nik¯ah plaar themselves, and only one described a personal experience with the Nik¯ah plaar who had represented his now wife. Notably, of the 18 female interviewees, only two recounted their personal experiences with their Nik¯ah plaar very positively (~11% of female interviewees), both of whom were represented by their fathers as

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Nik¯ah plaar . These positive experiences relate to the same female interviewees who also had positive sh¯ur¯a experiences with their fathers (see Theme 5). In contrast, 16 of the 18 female interviewees felt that they did not have any relationship with their Nik¯ah plaar beyond being asked for consent (~89% of female interviewees). These women felt that the role had been nothing more than a formality in their marriage proceedings, and notably, none were represented by their fathers: Chamtaara (60–69 yrs): Yes, at the Nik¯ah time. In my time, there was no signing, but two people came, one was my cousin, and another one, and they asked me if I consent, and I said ‘yes, I consent’. Then they went and said, I don’t know, ‘she consents’. My one had no signing at that time, just women sitting there, and yeah.

These women were overwhelmingly approached for consent by extended family members acting as Nik¯ah plaar , including brothers (1 out of 16), uncles (5 out of 16), grandfathers (1 out of 16), cousins (1 out of 16), and male in-laws (3 out of 16): Begum (40–49 yrs): Oh, on the Nik¯ah day, girl is sitting in the separate room, isn’t it. So wal¯ı, in my case, my uncle was my wal¯ı and he came and he asked me for my permission, for signature. Parkha (20–29 yrs): Yeah, like mine was my sister-in-law’s husband. So it’s like, there is someone in her in-laws, that he will look after her.

Despite two women having positive experiences with their fathers as Nik¯ah plaar , none of the women discussed marriage, or their preferences in spouse/spousal traits, with their Nik¯ah plaar prior to being asked for consent. The inability to discuss marriage with their Nik¯ah plaar operated in stark contrast to the guardianship-partnership expected between the father-wal¯ı and daughters in Hanaf¯ı jurisprudence: Zarlashta (50–59 yrs): Yes yes, they do talk. Not about marriage, just general topics. Because it’s their niece, you know. So just normal relationship, but as far as the role goes, that’s the only bit they play. Strangers

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don’t come [as Nik¯ah plaar ], thre [paternal uncle] or mama [maternal uncle] come.

Of the 18 female interviewees, two women did not even know who had acted as their Nik¯ah plaar in the marriage process (~11%): Jabeen (40–49 yrs): Again yes, I’ve heard about it, but I don’t even know who was my Nik¯ah plaar or whatever, I was never told about and I have no idea what they did or what happened, you know. Storai (30–39 yrs): … I’m talking about myself. I didn’t sign my own Nik¯ah contract, someone else did. [Q: So your Nik¯ah plaar said yes for you?] Yes. But I don’t know who it was. [Q: … do you know whether your Nik¯ah plaar was from your family or the other side?] No, no, I don’t even know who it was. I still don’t know who it was until today [laughs].

Only one male interviewee detailed his personal experience with the Nik¯ah plaar of his now wife, but did not detail any personal relationship, nor any substantial interaction, with the Nik¯ah plaar during his marriage process: Jahangir (30–39 yrs): No, the Nik¯ah plaar is basically what – so I’ll just tell you the whole story. So the Nik¯ah is when – when I went for my Nik¯ah, so [WIFE]’s father was sitting with me in the hujrah [room reserved for males] outside, we don’t actually go to the girl’s house before Nik¯ah. This is part of the culture. So in that situation, the Nik¯ah plaar who is basically [WIFE]’s uncle, has to go and ask [WIFE] whether she wants to marry me or not, so he’s the one who actually gets the consent from the girl and comes back outside and tells the Imam [religious authority] or whoever’s actually doing the Nik¯ah that the girl is ready.

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Summary of Theme 10 Findings The female interviewees recounted much more in terms of personal experiences with the Nik¯ah plaar than the males. This was attributable in large part to the fact that men acted as their own representatives in marriage. Among the female interviewees, none discussed marriage or spousal preference with their Nik¯ah plaar prior to marriage and, in direct contravention of explicit Hanaf¯ı doctrine, two of the female interviewees do not know who represented them to this day. All of the female interviewees’ personal interactions with the Nik¯ah plaar were limited to providing consent and signing the marriage contract in his presence.

Interviewees’ Perceptions of the Nikah ¯ Plaar in the Pashtun Marriage Process (Theme 11) The findings so far demonstrate that the vast majority of the interviewees only understood the concept of a ‘wal¯ı’ when it was equated with the Pashtun ‘equivalent’ in the marriage process. This theme looks at the interviewees’ beliefs on the role of the Nik¯ah plaar in marriage, in order to determine whether the role reflects or diverges from the role of the wal¯ı in Hanaf¯ı marriage. To do this, I analyse the interviewees’ perceptions on who can act as Nik¯ah plaar , the role of the Nik¯ah plaar in marriage, and the scope of decision-making authority that the Nik¯ah plaar possesses in Pashtun marriage, in the following themes.

Theme 11.1: Interviewees’ Perceptions on Who Can Undertake the Role of Nikah ¯ Plaar in Pashtun Marriage When responding to the question of who can act as Nik¯ah plaar , all 31 of the interviewees identified male relatives as the person who generally undertakes the role in Pashtun marriage. Almost half (14 out of 31) said that fathers can undertake the role (~42%); however, most of these interviewees went on to say that although the role can be undertaken

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by fathers, it is usually delegated to other male family members, such as uncles and cousins. Only 3 interviewees believed that fathers ‘usually’ act as Nik¯ah plaar for daughters, all of whom were Australian Pashtun women (~10%): Khushdil (40–49 yrs): No it is not … can – … no. It’s not. It is not … it is not sup– it can be a father, but it is not specifically related to father. It can be a cousin, mostly I remember, it’s mostly an elder cousin or an uncle type of relationship.

In contrast, almost half of the interviewees (13 out of 31) believed that fathers either do not, or cannot, act as Nik¯ah plaar for daughters in marriage (~42%), stating that the role is always undertaken by male family members in Pashtun culture. Although they seemed to mirror those who believed that fathers ‘can’ act as Nik¯ah plaar , the differences came from the conclusiveness of their beliefs. These 13 interviewees conclusively stated that fathers do not, or cannot, undertake the role in Pashtun culture—while the 14 interviewees above believed that although fathers could undertake the role in Pashtun culture, they often delegate it to other male family members (for reasons that are uncovered below). Most of the women in KPK (5 out of 7), and a minority among the other interviewee demographics, espoused the more conclusive belief in their responses: Farangiz (60–69 yrs): No no no no no. Not father … I don’t know that, but father, brothers didn’t do it. Either your uncle came, or if you had an elder [male] cousin, he would come, if they were elder. Someone like that from your close relatives would come and ask you. Hukam (60–69 yrs): He’s normally from the close family, either mama [maternal uncle], or thre [paternal uncle], or someone who is close in relation. It’s someone from the house, close relation like that. [Q: So not her father?] No, no, no, no. He sits there quietly.

The overwhelming majority (28 out of 31) believed that male relatives other than fathers generally undertake the role of Nik¯ah plaar (~90%). Most of these interviewees listed uncles as the preferred male relative to

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undertake the role, while 3 interviewees said that the role could be undertaken by ‘anyone’ who was male, although they too noted that relatives were ultimately preferred in practice: Zarlashta (50–59 yrs): … And when it’s her thre [paternal uncle] or mama [maternal uncle], then they come and ask her themselves. So they’re called the ‘Nik¯ah plaar ’. We call them the Nik¯ah plaar. Jabeen (40–49 yrs): Um … a lot of the time, as I said, what I have seen and witnessed, that either the mama [maternal uncle] or the girl’s older brother will come and ask at the time of the Nik¯ah.

The interviewees provided various reasons behind the cultural preference for other male relatives to act as Nik¯ah plaar in lieu of fathers. Among these were the notion that fathers already occupy a major personal role in marriage, and therefore delegate formal marriage proceedings to another male relative, often out of respect. Most of the male interviewees explained that this delegation stemmed primarily from Pashtun cultural norms, where fathers remove themselves from the ‘front’ of proceedings and delegate the role to a brother or brother-in-law out of modesty, sadness, or happiness. On the other hand, most of the female interviewees did not know why fathers generally did not undertake the role, often simply explaining that male relatives traditionally do so: Rangeen (40–49 yrs): That’s, that’s our culture. Yes, yes. This is our culture, it falls under the cultural aspect, our elders - either from great sadness, or from great modesty, or from great happiness, it’s something like that - you can give it any reason, either it’s from great happiness, it’s a very happy occasion so he - or from great modesty or sadness, but he doesn’t come to the front. Jahangir (30–39 yrs): Well, I really don’t know. It’s actually … it’s ahhhh, maybe it’s some sort of a culture or something, that the father actually doesn’t want to take part in the Nik¯ah role … But there has to be someone from the very first family who has to be the Nik¯ah plaar or father of Nik¯ah or whatever.

Two interviewees believed that the preference for other male relatives stemmed from the fact that fathers are unable to act disinterestedly, or

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objectively, in relation to their daughters. As a result, the role is given to another male relative in case problems arise, and objective decisionmaking is required to resolve issues between the families: Parkha (20–29 yrs): I think it’s that maybe the father doesn’t take the decision rationally about his daughter, and there are mainly problems about the spouses, and when the decision-making comes, so eventually her father will take the side of his daughter. He won’t take the decision rationally, or he won’t take sides. He’ll just think about, from the point of view of his daughter.

Thus, it was clear that the majority of the interviewees were of the view that Pashtun fathers cannot, or generally do not, undertake the role of Nik¯ah plaar for their daughters (~90%). The religious implications of fathers delegating the Nik¯ah plaar role to other male relatives is significant, given that fathers are the natural wal¯ı of their daughters in Hanaf¯ı jurisprudence.

Theme 11.2: The Role of the Nikah ¯ Plaar in Pashtun Marriage According to Interviewees When asked about the role of the Nik¯ah plaar , all of the interviewees identified one (or both) of two roles that they believed necessitated the Nik¯ah plaar in Pashtun marriage. These were: obtaining consent from the girl and operating as witness to her signature on the marriage contract. Obtaining consent. Of the 31 Pashtuns interviewed, 29 said that the Nik¯ah plaar primarily acts as a messenger between the woman and the religious authority conducting formal Nik¯ah proceedings (~94%). These interviewees felt that conveying consent was the primary role of the Nik¯ah plaar in Pashtun marriage: Storai (30–39 yrs): He just sits there, and whatever they asked the girl, he says it, that if there’s permission, if there’s consent, what words there were, he does that.

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Gawhar (40–49 yrs): … So he [Nik¯ah plaar ] is just there for a short time, I’ll call it a formality. It comes under formality.

Eight interviewees provided a reason for a messenger during formal proceedings; that is, the norm of gender segregation in Pashtun culture. These interviewees explained that when the Nik¯ah contract is formalised by a religious authority, the proceedings often take place in the mosque— a traditionally male-dominated space in Pashtun culture. As women cannot go ‘into the midst of men’, and unrelated men cannot enter rooms where women gather (such as the religious figure conducting the marriage), the necessity for a male relative to obtain consent becomes apparent: Fakhri (20–29 yrs): I know why they’re there. It’s because a girl cannot sit in front of men, right? And the asking of consent happens in front of the men. So when the person comes and asks the girl, what you call wal¯ı and what we call Nik¯ah plaar in Pashto, so he asks her, ‘do you consent’ and she says, ‘I consent’, then he goes into the midst of the men, some of them from the girl’s side and some from the boy’s side, and in front of them he says, ‘yes I asked her, and she consents so we can proceed’. Like the Nik¯ah plaar for us, who did everything for us, our grandfather did everything for us.

On this, one female interviewee felt that the inability for Pashtun women to represent themselves can lead to injustice in the marriage process. She believed that the relaying of consent can be abused by the Nik¯ah plaar , who can confirm consent even if the woman did not consent in reality. This concern operates in stark contrast to the experiences of men, who are able to represent themselves in Pashtun culture. The ability to abuse the role was also posited by a male interviewee who had personally witnessed a Nik¯ah plaar exert pressure to obtain consent from the girl subject to marriage. Given that the Islamic wal¯ı must ‘heed even the most subtle signs of disapproval’ from the woman subject to marriage, both of these possibilities indicate that the Nik¯ah plaar role can be used to contravene the lawful bounds of the wal¯ı in Hanaf¯ı legal doctrine5 :

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Amail (40–49 yrs): I think he is an influencer as well. So he can like, in some situations I would say, he can push for the consent as well. I’ve seen it [laughs] [Q: Oh, really? What do you mean by that?] Like, in a lot of those situations, let’s say the girl is not ready, so he can come and push or pursue with her, that it’s a matter of izzat [honour] for us, or this or that, so.

Witness to marriage. In addition to obtaining and relaying consent, fifteen interviewees said that the Nik¯ah plaar also acts as a witness to the signing of the Nik¯ah contract (~48%). These interviewees noted that alongside obtaining consent, the role simultaneously meets the witnessing requirement of a valid marriage: Chamtaara (60–69 yrs): He does the witnessing, and the signing, but the witnessing role is more important … then that person’s name is signed and everything. Kaihan (60–69 yrs): … I can just [consider] him as a witness.

Interestingly, two interviewees said that the Nik¯ah plaar role was starting to ‘finish’ in Pashtun culture, explaining that women were starting to represent themselves in formal marriage proceedings, including signing their own marriage contracts during the Nik¯ah ceremony: Fakhri (20–29 yrs): … But nowadays, this has pretty much finished. Now they come directly to the girl, her mother comes and they do the Nik¯ah signing there with her, so this thing has almost finished, they’re finishing it, the Nik¯ah plaar and that - only in our area it still happens, but other sides, it’s finished. Nufail (30–39 yrs): … And another thing is, these days this has started, that the documents and forms of the Nik¯ah are taken to the girls these days – I’ve seen it - the girl signs it and gives it back, so the Nik¯ah witness role is finishing here.

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Theme 11.3: Role Before and After Marriage Thirty interviewees believed that the role of Nik¯ah plaar does not practically exist before the marriage process begins, only coming into effect upon receipt of a proposal (~97%). A sole interviewee said that the Nik¯ah plaar has a role in spousal decision-making before marriage, but only if the role is undertaken by the father. On the other hand, 11 interviewees believed that although the Nik¯ah plaar has no role before marriage, he does occupy a role after the marriage is transacted (~35%). Nine of these described this ongoing role in terms of mediation or dispute resolution between the spouses, and two described the role as a promise of ongoing protection for the woman stemming from the Nik¯ah plaar relationship: Parkha (20–29 yrs): It’s like … he’ll be answerable for the girl. Yeah, he’ll protect her. That’s I think, it’s his role. That after father, or husband, he’ll be answerable for her, and he will, he’ll be like her brother. It’s not her actual brother, but he’ll take care of the girl, yeah.

However, the majority felt that the Nik¯ah plaar role after marriage was largely theoretical, superfluous, and short-lived in reality. They relegated the role to mere formality in the marriage process and did not believe that an ongoing role existed in practice. These 20 interviewees explicitly limited the role to the time of contracting marriage alone (~65%): Sparlay (20–29 yrs): I don’t think they’re required. Because that time in front of me, they just sign it, they don’t take any relation with you after that. So I don’t think so. If they’re a wal¯ı, so you have to make a good relation after that. Jahangir (30–39 yrs): Well, not really, because in my case, my wife’s Nik¯ah roor [‘Nik¯ah brother’] is actually my first cousin. And ahhh, I never, I never like, heard him calling her or anything like that. I mean it’s just ah … it’s just a formality on the Nik¯ah, I think nowadays. It shouldn’t be like that.

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Theme 11.4: Decision-Making Authority Nine interviewees said that the Nik¯ah plaar either possesses no, or extremely limited, decision-making authority in the Pashtun marriage process. They explained that the Nik¯ah plaar must remain in close consultation with the father, as the latter retains ultimate authority in the marriage proceedings. Although only nine interviewees stated this belief explicitly, the notion that a male relation possesses only limited decisionmaking authority as Nik¯ah plaar was supported by 30 interviewees (~97%): Awalmir (50–59 yrs): As far as I know, he would not be authorised to make any personal decisions. He’s normally entrusted by the family into that position, and he will be doing everything in consultation with the family. Arman (40–49 yrs): … But whatever stipulations are in the Nik¯ah, then the father or brother, meaning the near relatives, then they have decided that ‘this this this’ must be done, this and this condition must be written, so he will present those. As much authority that is given to him, he will wield that much authority, no more than that.

Only one interviewee thought that the Nik¯ah plaar possessed full authority to negotiate and make decisions during the formal marriage proceedings; however, this was also couched in terms of being ‘given’ authority by the father of the woman subject to marriage: Hukam (60–69 yrs): He’s the authority, child. He is given authority, that’s why he says all these things at that time. He’s got full authority, he has authority.

Summary of Theme 11 Findings Thirteen of the 31 interviewees (~42%) were of the view that fathers cannot, or generally do not, undertake the role of Nik¯ah plaar for their daughters. In terms of the role itself, all 31 interviewees said that the Nik¯ah plaar exists to carry out one or both of two roles: obtaining

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consent or permission from the girl and/or operating as witness to her signature on the Nik¯ah (religious legal marriage contract). Eight interviewees (~26%) believed the role to stem from gender segregation in Pashtun culture, which in turn leads to the necessity for a man to represent the woman during formal marriage proceedings. It is unclear whether more of the interviewees may have held the same belief, without having verbalised it in the interviews. The majority of both the male and female interviewees did not believe that the role of Nik¯ah plaar practically extended before or after marriage; however, 11 said that the role extended to protection and dispute resolution once the marriage is contracted (~35%), although most of these felt this extension to be theoretical at most. The overwhelming majority (30 out of 31) espoused the belief that the Nik¯ah plaar has either no decision-making authority, or limited authority to make decisions, if undertaken by a male relation who was not the father. These findings support the notion that the Pashtun Nik¯ah plaar role, as it currently exists and is practiced, does not reflect the Hanaf¯ı conception of wal¯ı in marriage. As a significant finding to emerge from this study, the extent of this divergence is examined in Chapter 8.

Interviewees’ Beliefs on Nikah ¯ Plaar and Walı¯ from Islamic Perspective (Theme 12) This section analyses the interviewees’ perceptions of the Nik¯ah plaar role from a religious legal perspective, pertaining specifically to whether they believed the role to be compulsory for valid marriage in Islam. This includes any instances where interviewees distinguished between the religious legal implications of a marriage contracted without the wal¯ı, compared to a marriage contracted without a Nik¯ah plaar .

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Theme 12.1: Interviewees’ Beliefs on the Nikah ¯ Plaar from an Islamic Perspective When asked whether they believed the role of Nik¯ah plaar was compulsory for valid marriage in Islam, 15 believed the role to be compulsory for valid marriage from a religious perspective. This compulsion was perceived to exist in order to fulfil one or both of the following religious requirements: that of the Islamic wal¯ı in marriage, or as the means by which religious requirements were satisfied in formal Nik¯ah proceedings, such as witnessing and relaying consent. Eleven of the 18 Australian Pashtun interviewees believed that the role was compulsory in marriage (~61%), while only four of the 13 interviewees in KPK espoused this belief (~31%): Benafsha (40–49 yrs): … I think that in Nik¯ah, it is compulsory. Because the Nik¯ah has some obligations. Even if people go to court [for Nik¯ah], there will be someone to witness and sign it.

On this, 13 interviewees believed that the Pashtun Nik¯ah plaar role originated in Islam and existed to fulfil religious requirements within the Pashtun cultural context (~42%). The majority of these interviewees effectively equated the two roles in terms of their practical requirements, stating that the Pashtun Nik¯ah plaar role exists as a cultural manifestation of the wal¯ı in order to fulfil the legal requirements of witnessing and guardianship in the marriage process: Kontara (40–49 yrs): No, it [Nik¯ah plaar ] came with Islam, because they ask about it at Nik¯ah. Awalmir (50–59 yrs): Ah … my own understanding is Islam requires a witness for the Nik¯ah, and that’s how it’s being practised. And as far as I remember and what I have heard, there is always a Nik¯ah wal¯ı. And I think it’s a religious, something religious that’s been turned into practise as well. But I must say that - while not all - many of the Pashtun cultural practises are very, very in line with the religion as well.

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However, it was interesting to hear some of the interviewees hold two simultaneous beliefs: (1) that the Nik¯ah plaar role was compulsory in marriage, and (2) that the cultural role did not reflect the Islamic role in practice. For example, two interviewees explained that the cultural role had been ‘twisted’ from the religious role of wal¯ı, noting that the Pashtun preference to bypass fathers and entrust the role to male relatives was proof of the role being twisted in cultural practice. One of these was the sole religious figure interviewed in this study (AUS-M Mirwais): Mirwais (50–59 yrs): We twisted this one. The actual right of the wal¯ı is, the first person is - you know, whenever I go and do, perform Nik¯ah, I always explain these things in steps. When people ask me to give bayaan [sermon] or something, so I highlight all these basic things which people are not aware of this. The first person, the one who has the right to be the wal¯ı, is the father … But this is not Islamic you know, when the father is available, the close person is available, and you’re choosing someone else! Fifth or sixth person.

In contrast, four interviewees felt that the Nik¯ah plaar was not religiously compulsory at all. These interviewees believed that the role was based on culture alone and did not ensure the religious validity of marriage. Rather, they felt the Nik¯ah plaar role to be unique to Pashtun culture: Nufail (30–39 yrs): Nik¯ah can happen without them, but we give them this role because they’re [also] the witness. Kaihan (60–69 yrs): I think this is more cultural. My thinking is it’s more cultural. It’s something like a bit of a … I think it would have stemmed from various questions like, ‘who is going to be responsible for her mahr [dower] and jahez [bridal possessions]?’ and then they would have found out, ‘well let us put a man there who can witness this and also serve God for it’. But in Islamic Nik¯ah, the person who is writing the Nik¯ah and doing the Nik¯ah, like the Imam, he normally writes it, so there is no need for wal¯ı there. And also the three, four people who are witnesses, they are there, and they just witness the whole thing. So Nik¯ah plaar means to me more like cultural rather than religious.

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Summary of Theme 12 Findings Only 15 of the 31 interviewees (~48%) believed the Nik¯ah plaar role to be compulsory for valid marriage from a religious legal perspective. These interviewees explained that the role was required to fulfil one or more Islamic requirement of: witnessing, guardianship, or obtaining consent in the marriage process. However, what the data in this theme demonstrates most poignantly is that the majority subsequently conflated the Pashtun Nik¯ah plaar and the Islamic wal¯ı in terms of their role in marriage. Only four interviewees distinguished between the two roles, which may indicate that many Pashtuns may not be entirely cognisant of the requirements and jurisprudential expectations of the wal¯ı in the Hanaf¯ı madhhab.

Conclusion This chapter analysed the wal¯ı in comparison with the Nik¯ah plaar in Pashtun marriage, including the interviewees’ recognition of the ‘wal¯ı’ in marriage, their personal experiences with the Nik¯ah plaar as wal¯ı in their own marriage processes, their perceptions of the two roles in practice, and their conceptions of the Nik¯ah plaar role from a religious perspective. It is clear that the Islamic concept of a ‘wal¯ı’ was not recognised among the majority of interviewees (~58% did not recognise the term). However, the wal¯ı was recognised to a greater extent among the Australian interviewees (~50%) than those in KPK (~31%), which may indicate that there is more religious awareness among the interviewees who have left the cultural context of KPK. This trend in the research findings is discussed in Chapter 8. Most relevant to this study was that only two interviewees recognised, and detailed, the role of the wal¯ı in terms of the wil¯ayat mush¯araka (or ‘guardianship partnership’) described in Hanaf¯ı jurisprudence. Both were Australian Pashtun interviewees; of these, one was formally educated as an imam (religious preacher), while the other was an Australian Pashtun woman with no formal religious education. Theme 9 analysis indicates

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that the vast majority of interviewees only understood the concept of a wal¯ı in marriage when it was equated with the Nik¯ah plaar in the Pashtun marriage process. However, as noted previously, the Nik¯ah plaar is not entirely synonymous with the Islamic wal¯ı in practice, and subsequently, more than half of the Pashtuns interviewed did not recognise the wal¯ı from an Islamic legal perspective. In terms of personal experiences with the Nik¯ah plaar in marriage, the data came almost entirely from the female interviewees. This was not surprising, given that men act as their own agents in both the cultural and religious marriage processes. Theme 10 revealed that all of the female interviewees had personal experiences with their Nik¯ah plaar that were limited to providing consent and signing the marriage contract; these relationships did not extend to in-depth or ongoing mutual consultation on marriage or spousal preference. It is also significant that almost half of the interviewees believed that fathers cannot, or generally do not, undertake the role of Nik¯ah plaar for their daughters in Pashtun culture (~42%). The findings indicated that uncles were the preferred male relation to undertake the role, even above closer male relations, such as full brothers. In terms of the role itself, all 31 interviewees said the Nik¯ah plaar exists to either obtain consent or permission from the woman subject to marriage and/or to operate as a witness to her signature on the marriage contract. This belief reflected every single one of the female interviewees’ experiences with the Nik¯ah plaar during their own marriage processes. None of the interviewees described the role in terms of consultation between the Nik¯ah plaar and the woman that he represents in marriage. Thus, it is clear that the Pashtun Nik¯ah plaar does not reflect the Islamic wal¯ı as described in Hanaf¯ı jurisprudence. This manifest difference between the cultural and religious roles is undoubtedly an important finding as it demonstrates the extent to which cultural practice diverges from religious prescription in the marriage process. Lastly, it is interesting to note that a minority of the interviewees believed that the Pashtun Nik¯ah plaar works to fulfil the Islamic role of wal¯ı in terms of consent and/or witnessing (~42%). Similarly, only 15 interviewees (~48%) believed the Nik¯ah plaar to be compulsory for the purpose of fulfilling one or more Islamic requirement of: witnessing,

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guardianship, or obtaining consent for valid marriage. However, the data analysed in Theme 12 indicates that the majority of the interviewees conflated the Pashtun Nik¯ah plaar with the religious wal¯ı in terms of their role in marriage; only four interviewees distinguished between the two roles. It can be concluded that Pashtuns may not be entirely cognisant of the role and jurisprudential expectations of the wal¯ı in the Hanaf¯ı marriage process, as distinct from the Pashtun conception of the Nik¯ah plaar . The implications of this conflation and lack of recognition of the wal¯ı in marriage, along with the implications of all the findings that emerged from this study in relation to the three elements of consent-seeking, are discussed in the next chapter.

Notes 1. The terms ‘Nik¯ah plaar ’ (and ‘Nik¯ah roor ’ to a lesser extent) are used throughout this chapter. Nik¯ah plaar is defined as ‘Nik¯ah father’ and Nik¯ah roor as ‘Nik¯ah brother’. Both of these terms refer to the same role undertaken in the Pashtun marriage process. The distinction organically occurs, based on the age and position of the man who undertakes the role—an elder (including fathers, uncles, older men) is given the title of ‘Nik¯ah plaar ’, while a younger man (including brothers and cousins) is given the title of ‘Nik¯ah roor ’ during the formalities of marriage in Pashtun culture. 2. Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010) 36. 3. Ibid; Burh¯an al-D¯ın al-Fargh¯an¯ı al-Margh¯ın¯an¯ı, Al-Hid¯ayah: The Guidance (Imran Ahsan Khan Nyazee trans, Amal Press, 2006) vol 1 [trans of: Al-Hid¯ayah f¯ı Sharh. Bid¯ayat Al-Mubtadi’ (first published circa 12 CE)] 491; Wael B Hallaq, Shar¯ı’a: Theory, Practise, Transformations (Cambridge University Press, 2009) 274; Susan A Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Brill, 2010) 149. 4. Hallaq, above n 3, 276. 5. Hallaq, above n 3, 275; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 496.

Part III Implications, Consequences, and Possible Solutions

8 Understanding the Divergences: The Legal Implications of Divergence Between Law and Culture

In Hanaf¯ı jurisprudence, the process of consent-seeking for b¯aligh Muslims reflects a legal autonomy that is synonymous with adulthood in much of the world. B¯aligh (adult) men and women are endowed with religious obligations and duties by God—they are responsible and answerable in a way they were not before attaining majority. As adults, they cannot be subject to decisions made on their behalf without their knowledge or permission. This includes marriage in the Hanaf¯ı madhhab. B¯aligh men and women can choose when and whom to marry. They can contract marriage of their own accord, without the need for representation. Singular to the Hanaf¯ı madhhab, this includes b¯aligh women, who need not be represented by their natural guardian, the father-wal¯ı, to contract valid marriage on their own behalf. B¯aligh women are only limited by the notion of kaf¯a’ah, or social compatibility and equality, in their legal authority to choose a spouse and contract marriage for themselves. According to scholars, the limitations on b¯aligh women exist only because of the time in which formative and classical Hanaf¯ı jurists lived.1 The ‘sameness of the sexes’ in the right to contract marriage for oneself was limited only by the Arabian norms of modesty and patriarchy.2 Thus, the representation of a wal¯ı, although not legally © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_8

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required, would prevent a charge of ‘impudence being laid’ at the door of a b¯aligh Hanaf¯ı woman,3 while kaf¯a’ah ensured the protection of male lineage and social status in Arabian society. So long as the husband of such a woman was objectively suitable and equal to her, Hanaf¯ı jurisprudence deemed the marriage contract lawful and valid. If a b¯aligh woman did not contract marriage for herself, only her father as natural wal¯ı in the first instance could do so on her behalf; but because his representation was not legally necessary, he could only do so with her consent. In this relationship between a father and his adult daughter, Hanaf¯ı jurists envisaged a jurisprudential ideal described as the wil¯ayat mush¯araka (or guardianship-partnership). The wil¯ayat mush¯araka encompassed mutual consultation between the father-wal¯ı and his daughter, and the requirement for the two parties to act as partners in the process of contracting marriage.4 So, if the consent-seeking process is like pushing a ship out to sea, it can be said that the wil¯ayat mush¯araka represented the best way to help marriage set sail smoothly. Within this jurisprudential context, I chose to explore whether the norms and practices of Pashtuns in Khyber Pakhtunkhwa (KPK) reflected the letter and spirit of their religion. I aimed to ascertain the attitudes and beliefs of Pashtun men and women on consent-seeking in Pashtun culture, as well as to explore their personal experiences with consent-seeking in Khyber Pakhtunkhwa (KPK). As the daughter of Pashtun Muslims from KPK, I chose the Pashtun cultural context of KPK because of my own experiences with the marriage process, as well as having witnessed instances of marriage without any sort of consent or consultation during my numerous visits to the province. In the previous chapters, I presented my findings on the three ‘elements’ of consent-seeking that I derived from Hanaf¯ı jurisprudence during the literature review phase: consent (Chapter 5), sh¯ur¯a/consultation (Chapter 6), and wil¯aya/guardianship (Chapter 7). This chapter discusses the implications of the numerous divergences that I found to exist in the interviewees’ responses on consent-seeking among Pashtuns in KPK. The key argument here is that Pashtuns, although identifying strongly as practising (Hanaf¯ı) Muslims and living in a shar¯ı‘a-compliant nation State, are unaware of the extent to which their cultural practices actually contravene shar¯ı‘a—although the majority are

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certainly aware of ‘some’ differences between their cultural practices and religious prescription. The extent of divergence, and its legal ramifications on the validity and lawfulness of many Pashtun marriages, is considered in extensive detail in the pages that follow. My overarching argument draws on the theological question that underpins this study; that is, whether Muslims should discard those cultural norms and practices that do not reflect either the spirit or letter of Islamic law. In the bulk of this discursive chapter, I evaluate my empirical findings against established Hanaf¯ı doctrine on marriage consent. From a normative research perspective, Hanaf¯ı marriage doctrine operates as the ‘standard of evaluation’ from which normative conclusions and potential solutions can be derived. My analysis is aimed specifically at identifying and unpacking the areas of cultural/legal divergence that arose in the findings on consent-seeking among Pashtun Muslims, for the purpose of informing positive legal and social change in Khyber Pakhtunkhwa. Taken as a whole, the findings quite clearly show that Pashtun marriage practices reflect neither the spirit of the guardianshippartnership, nor the letter of Hanaf¯ı law on consent-seeking. Consequently, I contend that these cultural practices require change from a religious standpoint, although the ways in which these customs breach national and international laws indicate that change is required from a secular legal standpoint as well. Finally, as marriage is an inherently human activity, the cost of these contrary cultural practices upon wellbeing, based on the experiences of the Pashtun men and women that I interviewed, shows how change is not just an issue of legal necessity, but a human one too.

General Observations Before I examine the areas of divergence identified with respect to each element of consent-seeking, it is important to discuss general observations that are relevant to any deeper consideration of the findings encapsulated in this discussion chapter. These include observations on the interviewees’ age and previous marital status at the time of marriage,

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as well as the impact of their educational background and geographic location upon the findings. So that this analysis does not move beyond a focus on consent-seeking to one that includes complex intra-marital issues, I must reiterate here that the focus of my investigation was limited to the process of obtaining consent prior to the contracting of marriage, and that issues related to marriage after the conclusion of the marriage contract lie firmly beyond the scope of this study. Certainly, issues between spouses once within the marital relationship—particularly in marriages contracted without consent—would be better studied separately to the ‘elements of consentseeking’ that I have coined in this book, in order to do such issues justice.

Age and Previous Marital Status at Marriage As we saw in the findings of Theme 1 (Interviewees’ Personal Consent Experiences), all 31 Pashtun interviewees were found to be b¯aligh, and categorised as bikr , at the time of marriage. At the time the interviews were conducted, the final sample consisted entirely of Pashtuns who had been married once—an experience that informed all of the interviewees’ responses. Although the characteristics of single marriages could be construed as incidental to the research findings, I posit that the homogeneity is actually reflective of the strength of Pashtun cultural norms in practical terms; strength that was consistently demonstrated throughout the data presented in the previous chapters. Although the number of marriages per person was not a principle focus of this study, the single marriages of all 31 interviewees highlights the stigma that surrounds divorce in Pashtun culture. Although permissible in Islam, divorce is considered especially taboo in Pashtun culture,5 to the extent that Pashtuns are effectively unable to divorce their spouses, even in contentious cases, as a result of this prevailing cultural norm. This is especially true for Pashtun women; indeed, there exists a cultural adage that encapsulates the rarity of divorce in Pashtun culture: ‘a woman leaves the house twice; firstly, during her marriage and secondly, as dead’.6 Significantly, a version of this adage

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was quoted by one of the interviewees in this study, demonstrating that such cultural attitudes do not exist in literature alone, but lives in the minds of Pashtuns as well.7 The cultural aversion to divorce was also evidenced in the marital status of one of the younger female interviewees in KPK (KPK-F Zala), who had separated from her husband in highly contentious circumstances almost two years prior, yet no divorce proceedings had been instigated by either party at the time of the interview. All the interviewees were also b¯aligh at the time of marriage, as minor marriage (or child marriage) did not manifest in the interviewee sample at all. This finding was significant as it narrowed the application of Hanaf¯ı legal doctrine to b¯aligh persons and subsequently rendered minor marriage beyond the purview of this study. Majority (bul¯ugh) is the primary factor governing marriage consent in the Hanaf¯ı madhhab, which holds that a free and sane b¯aligh person cannot be married without consent, nor be compelled in marriage.8 That all of the interviewees were b¯aligh at the time of marriage was surprising to me, given that existing research had indicated the prevalence of minor marriage in KPK. The homogeneity in this regard most likely resulted from the fact that all of the interviewees were from a similar socio-economic background—the Pashtun middle- and workingclasses. While the research sample did represent both urban and village localities in KPK, none of the interviewees came from poor financial backgrounds, among whom minor marriage may have been more likely to manifest.

Impact of Interviewees’ Education and Location on the Findings As mentioned, an unintended consequence of my access to Pashtuns as a researcher was that all of the interviewees came from the middleand working-classes (both in Australia and in KPK). The Australian Pashtuns came from backgrounds that had enabled their skilled migration into Australia (both as primary applicants and as spouses). For the interviewees in KPK, due to the constraints of doctoral research,

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I was restricted to interviewing Pashtuns with ready access to personal technology such as phones and computers—generally not available to Pashtuns from poorer socio-economic backgrounds. As such, the factors that so frequently contribute to the marriage of minors, such as poverty or lack of education, were not reflected in the interviewees’ lived experiences to a significant extent. This accords with the scholarly view that minor marriage in developing countries is more prevalent among those living in poverty, and with limited access to education.9 The interviewees’ largely middle-class backgrounds may explain the absence of minor marriage in the research sample and undoubtedly comprises one of the methodological limitations of this study. The interviewees’ backgrounds also seemed to contribute to their level of religious knowledge (as demonstrated in the interviews). The interviewees were largely homogenous in both their personal experiences and their beliefs in each demographic breakdown of the data—in terms of both locality (KPK or Australia) and gender. Further, the majority were cognisant of the divergences that may exist between their culture and their religion in relation to the elements of consent, and sh¯ur¯a/consultation. However, four interviewees consistently diverged from the majority on consent specifically, and all four were female interviewees in KPK. The three Pashtuns who did not believe consent to be religiously compulsory were from this demographic, and the only interviewee who was ‘unsure’ as to whether consent was compulsory in Islam was a fourth woman in KPK. This was significant as the women in KPK were among the lowest educated in the research sample and also the demographic within which marriage without consent manifested the highest. In addition, two male interviewees in KPK consistently believed there to be no divergence between cultural and religious consent-seeking, which is reflective of the argument that Pashtun men and women often do not consider their culture to be in any way distinct from, or contradictory to, their religion.10 As Pashtun culture inherently encompasses strict adherence to Islam within its Pashtunwali code of honour (shariat ), these two interviewees feel there is ‘no difference’ between Pashtun culture (as Pashtunwali) and Islam—a belief that may well affect the effectiveness of reform in KPK if widely held in the province.

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In contrast, the Australian Pashtun interviewees seemed to have greater knowledge of religious principles than the interviewees in KPK. For example, the Islamic ‘wal¯ı’ was recognised most often by the Australian Pashtun women, and overall, more frequently recognised by the Australian Pashtuns than the Pashtuns in KPK. Interestingly, I felt that the Australian Pashtun men and women were also more forthcoming in their thoughts than their counterparts in KPK. This difference within the research sample is not insignificant, as it may indicate the strength of Pashtun culture on the knowledge and beliefs of those who live within the geographic context of KPK. It may be that since leaving KPK, the Australian Pashtuns have been exposed to their religion as Muslims in a multicultural society and exposed to various discourses on Islam from other Muslims, which could have led to an awareness of Islamic principles outside the context of Pashtun culture. In effect, their distance from the geographic bounds of the culture, and their subsequent experiences outside of it, may allow them more freedom to ‘look back’ and consider the culture they have left behind with greater objectivity. On the other hand, those in KPK remain subject to, and influenced by, the norms and values that govern their day-to-day lives. As such, it can be argued that culture has a greater impact on the interpretation and implementation of religious consent-seeking principles than is ideal in Islamic law and jurisprudence, which prima facie addresses the underlying theoretical question guiding this research; i.e., should those cultural norms and practices—that do not reflect either the spirit or letter of Islamic law—be discarded in order to bring Pashtun Muslim consent-seeking in line with (relevant) religious doctrine? At this point, the answer appears to be yes. Yes, there do seem to be some cultural practices that need discarding from a Hanaf¯ı legal perspective. However, let us move beyond general observations before answering this question more conclusively. Interestingly, despite being more aware, knowledgeable of religious legal principles, and forthcoming, it is clear that there was no great difference in the personal experiences of all 31 interviewees. It must be said that this justifies the decision to include Australian Pashtuns in the research sample, as evidently, the personal experiences of the Australian Pashtuns largely mirrored those of the Pashtuns who remained in KPK,

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revealing a homogeneity in the consent-seeking experiences of all the interviewees. As a result, the present analysis will focus on the divergences that emerged between Pashtun culture in the context of KPK and Hanaf¯ı doctrine. The differences that seemed to arise between the Australian Pashtuns and the KPK Pashtuns will inform future research and publications, as they speak more to a post-migration phenomenon than to differences in the interviewees’ marriage consent experiences, which remains the focus of this book.

Findings on the Elements of Consent-Seeking: The Extent to Which Cultural Practice Diverges from Consent-Seeking as the Hanaf¯ı Jurisprudential Ideal Consent Within the Research Sample One of the key findings of this study was the prevalence of marriage consent among the Pashtun interviewees. Approximately 80% of the interviewees consented to their marriages, and more than half of the consenting interviewees were women (~53%). In fact, the prevalence of consent in this study ran counter to previous research, which found that engagements and subsequently marriages ‘mostly’ proceed without the consent of women in KPK.11 Yet, only six of the Pashtuns that I interviewed were married without consent. Marriage without consent manifested higher among the interviewees in KPK than those in Australia (~38% cf . ~ 6%), and slightly higher among the women than the men (~22% cf . ~ 16%). However, although the interviewees’ personal experiences with consent ran counter to previous research, their beliefs did not. The majority believed that marriage without consent does exist in KPK, however, with varying perceptions regarding its prevalence. This majority belief was supported by the data, given that non-consensual marriage was found to exist within the relatively conservative sample size of this study, and not to an insignificant degree.

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Another significant finding was that—although more women were married without consent than men—the margin of difference between the genders was small (~22% of the women cf . ~ 16% of the men). In other words, men were almost as likely to be married without consent as women. Entirely consistent with previous research, a similar gender parity was also evident in the findings pertaining to cultural acquiescence as consent, and on sh¯ur¯a between parents and children prior to marriage—both of which manifested among the male and female Pashtuns interviewed.12 In contrast to the relative similarity between the genders, a greater difference emerged in the prevalence of nonconsensual marriage among the interviewees in KPK, compared to those in Australia. As elucidated in the general observations earlier, the primary reason for this may stem from the interviewees’ educational backgrounds. The interviewees in Australia were more educated than those in KPK. Perhaps as a consequence, none of the Australian Pashtun men were married without consent, all of whom were working in Australia as skilled migrants from KPK. All of the Australian Pashtun women were also educated to a tertiary level, and almost half were employed in various professional capacities in Australia. Only one Australian Pashtun woman was categorised as married without consent, although she had acquiesced to marriage at the time that her consent was sought. In comparison, only five of the 13 interviewees in KPK were educated to a secondary or tertiary level (3 women and 2 men). As scholars have found that the preservation of family relationships contributes to non-consensual marriage in Pashtun culture, it is questionable that a lack of education alone is the causative factor of such marriage. However, a correlation did exist between education and marriage without consent, which was also corroborated in the interviewees’ personal beliefs—almost half of whom believed a lack of education to be the greatest contributing factor to non-consensual marriage in KPK. Although extant literature has found practices like non-consensual marriage to be more prevalent among uneducated Pashtuns, this is a new finding that adds to our understanding of factors that may contribute to non-consensual marriage in KPK, drawn from

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the perceptions and beliefs of Pashtuns themselves. Indeed, education as a mechanism for change permeated the interviewees’ responses in the interviews, providing empirical support for such reform measures in KPK.

Form of Consent My findings on the ‘form’ of consent were pivotal to ascertaining the seeming divergence between Pashtun consent-seeking practices and Hanaf¯ı doctrine on the element of consent. Significantly, I found that all of the interviewees who consented to marriage did so verbally. Although the Hanaf¯ı madhhab allows silence to be construed as lawful consent from b¯aligh women,13 silence as consent did not manifest in any of the interviewees’ personal experiences. As a result, this aspect of Hanaf¯ı law was not applicable to the research sample. However, a minority of the interviewees did believe that silence was a ‘common’ response to consent-seeking in KPK more broadly. The discrepancy between personal experiences and beliefs may be attributed to the fact that this minority belief was also frequently posited with regard to Pashtuns from poor or tribal backgrounds, who, as explained earlier, did not form part of the interviewee sample in this study. In any case, the discrepancy between experience and belief is itself noteworthy, in that these beliefs demonstrate knowledge of such practices in KPK, even where those practices were not reflected in the personal experiences of any of the interviewees in the study. In contrast, the majority of the Pashtuns interviewed not only consented verbally to their own marriages, but also believed consent to be ‘generally’ sought verbally in KPK. Within the findings on consent, the data obtained on the type of verbal consent is most indicative of the divergence that seems to exist between cultural consent-seeking practices and consent-seeking in Hanaf¯ı doctrine. I refer to the prevalence of ‘acquiescence’ as verbal consent among the interviewees, discussed in the next section.

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Divergence Between Consent in Pashtun Culture vis-à-vis Consent as the Hanaf¯ı Jurisprudential Ideal Almost half of the consenting interviewees described their personal consent in terms of acquiescence. Eleven consenting interviewees and three non-consenting interviewees described their consent to, or retrospective acceptance of, marriage in terms of acquiescing to their parents (~44% of consenting interviewees, and ~ 45% of all interviewees). I subsequently named this phenomenon ‘cultural acquiescence’ in the data analysis phase. This terminology reflects the notion of ‘silent acquiescence’ used by Kecia Ali to describe silence as lawful consent in Islamic legal jurisprudence.14 Phrases such as ‘what you like, I like too’ and ‘whatever you think is best, is best for me’ were categorised as cultural acquiescence to marriage within the sub-category of verbal consent. The findings indicate that almost half of the interviewees merely acquiesced to the decision-making authority of their parents, as opposed to providing willing consent to marriage. A minority of the female interviewees said that they acquiesced to marriage even though they were personally not ready, or even unhappy, to marry at the time. Eight interviewees described acquiescence as the type of verbal consent that they believed was ‘expected’, particularly from daughters, in response to consent-seeking in their culture. On this, one interviewee specifically asked how her own acquiescence could be construed as true consent, when no other choice but acquiescence had been available to her. The cultural expectation to accede to the decision-making authority of parents, stemming from the norm of parental respect, was posited as the reason for this type of consent by the majority of the interviewees. This finding accords with previous research, which has found that Pashtun children, particularly daughters, avoid shaming their parents by adhering to their will. For example, two well-known cultural maxims often employed when a Pashtun refuses an arranged marriage, or to honour a childhood betrothal, include: ‘Khalaq ba sa wai? ’ (‘What will the people say?) and ‘Da stargo garawalo na ba woozoo’ (‘We would not be able to face the people’).15 This finding also reflects the assertions of Berrenberg, who notes that marriage is often perceived as a consequence,

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rather than a beginning, in Pashtun culture.16 The cultural expectation to accept marriage in order to respect parents, or to strengthen family bonds, almost certainly explains the prevalence of acquiescence as a verbal response to consent in the findings. In addition to acquiescence, verbal consent among the interviewees was also limited to formality at the time of the Nik¯ah (religious marriage) ceremony. These interviewees only consented for the purpose of signing the marriage contract and to conclude proceedings, but had not been asked for consent during the marriage process at any time prior. Similar to acquiescence, this form of consent raised an interesting contradiction between consent as formality and willing consent, due to the public nature of the Nik¯ah ceremony. In such cases, pressure may be exerted on the woman for the purpose of signing the marriage contract—a situation asserted by one female interviewee, and witnessed in person by another male interviewee. These findings on both acquiescence and consent as formality alone raise the question as to whether such forms of consent may contravene the requirements of the Hanaf¯ı madhhab, particularly where cultural norms generate pressure on children to accept their parents’ decisions, regardless of whether or not they are truly happy with the decision. I argue that these forms of consent break from the spirit and letter of Hanaf¯ı doctrine with regard to three aspects of marriage consent. First, the guidelines provided by Hanaf¯ı jurists on the interpretation of non-verbal consent require a guardian to obtain consent from a b¯aligh person holistically, in that body language and non-verbal responses must be interpreted in a way that obtains the truth of the response to marriage, be it verbal or non-verbal.17 By expecting children to merely accept their decisions on marriage, including when and whom to marry, Pashtuns parents effectively short-circuit the process of ‘interpreting’ a response to marriage—in that any response that is not a clear verbal rejection constitutes acceptance per the norm of cultural acquiescence. Second, the acquiescence to parental authority does not reflect the personal agency that a b¯aligh person holds in terms of contracting marriage for themselves in the Hanaf¯ı madhhab. To explain further, Hanaf¯ı doctrine requires the consent of a b¯aligh person before marriage can be contracted on their behalf. Like a b¯aligh man, a b¯aligh woman

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is considered capable of looking after her own interests, irrespective of virginity, which is the primary function of the wal¯ı in Hanaf¯ı marriage.18 Majority is determinative of this personal capability; it renders the wal¯ı non-compulsory in the marriage transaction of a b¯aligh woman and gives rise to the compulsion to obtain consent where the marriage process is undertaken by anyone other than the woman herself. The personal agency of a b¯aligh person in contracting marriage suggests that the Hanaf¯ı madhhab allows for the unilateral exercise of choice, in both the decision to marry and spousal selection. Put simply, it is an explicit breach of Hanaf¯ı law when a b¯aligh Pashtun is unable to contribute to marriage and spousal decision-making in any meaningful way, or worse, is compelled into a marriage they do not want. Third, classical Hanaf¯ı law prohibits marriage that is contracted as a result of pressure. Contemporary Hanaf¯ı scholars reiterate the unlawfulness of consent that is obtained using force or pressure, and encourage explicit verbal or written consent be obtained in modern times.19 Together with the genuine interpretation of a response to marriage, Hanaf¯ı jurists evidently consider ideal marriage consent as that which is provided willingly, and genuinely from the perspective of the b¯aligh person subject to the marriage. However, both the expectation to acquiesce and seeking consent at formal Nik¯ah proceedings alone operate as different types of pressure used to obtain consent. Further, based on the personal experiences and beliefs of the Pashtuns interviewed, neither form of consent necessarily indicates the woman ‘wants’ the marriage in every case. Therefore, what must be considered is the motivation for such forms of consent—and whether consent based on respect or pressure, but not conviction, contravenes the spirit and/or letter of Hanaf¯ı jurisprudence. I conclude that neither of these forms of consent, though technically involving the provision of verbal consent, lives up to the Hanaf¯ı jurisprudential ideal of willing and genuine consent. The next section discusses the findings on sh¯ur¯a/consultation.

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Shur ¯ a¯ Within the Research Sample From the interviewees’ responses, it is clear that marriage is a taboo topic of discussion for unmarried children in Pashtun culture, and that the marriage process is one primarily undertaken by parents and elders. Discussions of marriage and spousal selection are widely regarded as inappropriate between parents and children, and this inappropriateness is evidently even greater with respect to discussing marriage with fathers. Only six of the interviewees were consulted by their parents prior to marriage, and the majority never engaged in marriage sh¯ur¯a with their parents to any extent. Many responded to the question of marriage sh¯ur¯a with parents in absolute terms, evincing a firmly held perception on the inappropriateness of such conversations in their culture. The findings on sh¯ur¯a were broadly consistent with both existing literature and my personal knowledge of Pashtun culture as an insider–outsider researcher. The findings show that the perceived inappropriateness of marriage discussions between parents and children stems from the value attached to sharam (shame) in Pashtun culture. A minority felt that the inability to discuss marriage necessitates indirect communication, where third parties relay the desire to get married, or to marry a particular person, to parents. One interviewee explained that such messages must not be literal, but should act as an ‘innocent observation’ from younger third parties—for example, a cousin telling her aunty (who is the mother of the girl wanting to get married): ‘… so and so looks like she would make a good wife now, her cooking is getting much better …’. On the other hand, older third parties—such as an aunty with a good relationship to the girl wanting marriage—have the privilege of being much more direct (as literal as, ‘you should get your daughter married’). In this way, indirect communication itself exhibits the shame that should be felt by an unmarried Pashtun, and subsequently upholds the cultural norms of modesty and respect that children must afford their parents. Yet, indirect communication is itself a choice, and one that may not be made unhesitatingly by every unmarried Pashtun. Indeed, the majority of the interviewees did not contribute to marriage or spousal decisions to any extent.

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There was also a prevailing belief among the interviewees that shame governs the behaviour of unmarried daughters more than sons, particularly with regard to initiating marriage-related discussion. This finding was not surprising, as other scholars have concluded that the overriding factors keeping marriage out of the hands of unmarried Pashtun women are honour and shame—both of which are upheld by acquiescing to the will of parents.20 However, what I did find surprising was that— in contrast to this prevailing belief—shame was strongly attached to discussions of marriage for both genders. In fact, those who said that they never engaged in sh¯ur¯a prior to marriage comprised all of the men, and the majority of the women interviewed. Thus, it is clear that these cultural norms inhibit the ability to engage in marriage sh¯ur¯a with parents, evidenced in the overwhelming reference to shame from both men and women in this study. In addition to only a minority being consulted prior to marriage, the overwhelming majority believed marriage sh¯ur¯a to be neither common, nor encouraged, in Pashtun culture generally. Shame and the preservation of modesty were the two cultural norms underpinning this majority belief.21 I found that, in terms of demonstrating ‘visible’ modesty, unmarried daughters are expected to ignore, or even physically remove themselves, from situations where their own potential marriage is being discussed by others in their vicinity. However, despite the cultural inappropriateness of discussing marriage with parents—or perhaps because of it—the majority of the interviewees believed that parents ‘should’ consult their children prior to arranging marriage on their behalf. This majority belief on what ‘should’ occur contrasts directly with the majority belief on what ‘does’ occur in Pashtun culture, and is evidence of the fact that the majority did not personally agree with the shame, or the taboo nature of such discussions in their culture. It is notable that the majority also believed marriage sh¯ur¯a to be better engaged in by mothers than fathers in Pashtun culture. This was reflected in the experiences of the minority whose parents had consulted them before marriage—although as many were consulted by their fathers as their mothers, those consulted by their fathers described the content of their discussions in more superficial terms than those consulted by their mothers. Fathers were found to effectively limit discussion to questions of

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consent, while mothers engaged in a broader kind of consultation; these involved discussions on issues like spousal preference and desired traits in a husband. Overall, the interviewees described a more comfortable parent–child relationship with respect to mothers, and interestingly, this was true for both the men and women. Like consent, the findings on sh¯ur¯a clearly expose divergences that exist between Pashtun cultural practices and Hanaf¯ı doctrine on consentseeking. The shame that is attached to discussing marriage in Pashtun culture clearly contradicts the expectations of the wil¯ayat mush¯araka (guardianship-partnership) in Hanaf¯ı jurisprudence. In addition, the cultural preference for sh¯ur¯a to be undertaken by mothers removes fathers from marriage consultation, thereby negating a primary function of the wal¯ı in the process of consent-seeking—that of undertaking the marriage process with their b¯aligh daughters. This divergence between prevailing cultural norms (shame) and religious expectation (sh¯ur¯a) is articulated further in the following section.

Divergence Between Pashtun Consent-Seeking Practices and the Hanaf¯ı Conceptions of Shur ¯ a¯ and the Wilayat ¯ Musharaka ¯ The findings on sh¯ur¯a exposed two aspects of divergence between sh¯ur¯a as the jurisprudentially envisaged ideal and sh¯ur¯a as practiced in the Pashtun cultural context of KPK. First, the shamefulness of discussing marriage in Pashtun culture directly contradicts the Islamic conception of sh¯ur¯a; and second, the preference for sh¯ur¯a to be undertaken by mothers contradicts the expectations of the wil¯ayat mush¯araka (guardianship-partnership) in Hanaf¯ı jurisprudence.

Sh¯ur¯a and Shame in Pashtun Culture Fazlur Rahman defines sh¯ur¯a as ‘mutual advice through mutual discussions’ between individuals.22 Sh¯ur¯a pertaining to marriage is of particular importance in the opinions of classical and contemporary Hanaf¯ı

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scholars; indeed, Muslim parents are ‘expected’ to assist unmarried children in this regard. Further, mutual sh¯ur¯a forms an inherent part of the wil¯ayat mush¯araka in the process of securing marriage, particularly where the wal¯ı acts on behalf of a b¯aligh woman who is otherwise legally capable of contracting her own marriage. Again, Spectorsky and Hallaq assert that the wal¯ı is ‘expected’ to consult on marriage and prospective spouse before contracting marriage on behalf of such a woman.23 However, I found that in Pashtun culture, shame effectively negates the Islamic ‘expectation’ to engage in sh¯ur¯a, which confirms the arguments of some female scholars, who argue that unnecessarily conservative and un-Islamic cultural norms practically curtail the existence of sh¯ur¯a in many Muslim societies.24 The findings of this study reveal how Pashtun cultural norms effectively position the Islamic conception of sh¯ur¯a into the realm of impropriety in practice. The interviewees’ personal experiences and beliefs also show how ‘sh¯ur¯a’ and ‘shame’ operate as binary concepts among Pashtuns; shame renders the Islamic conception of sh¯ur¯a inappropriate and ineffective, and a child seeking to engage in sh¯ur¯a may be hindered, and even reputationally affected by, the Pashtun cultural norm of shamelessness (or immodesty).

Preference for Sh¯ur¯a to Be Undertaken by Mothers in Pashtun Culture Significantly, I also found a substantive divergence to exist in terms of the role of the father-wal¯ı. The findings reveal a cultural preference for sh¯ur¯a to be undertaken by mothers alone, which negates a primary function of the father-wal¯ı in the process of consent-seeking in the Hanaf¯ı madhhab. Hallaq describes the relationship between a Hanaf¯ı father-wal¯ı and his daughter as a wil¯ayat mush¯araka (or ‘guardianship-partnership’), which effectively necessitates sh¯ur¯a between the father-wal¯ı and his daughter.25 He must not only obtain her consent, but must act in her best interests, which includes consulting her on prospective spouses before contracting marriage.26 However, this consultative aspect of the wil¯ayat mush¯araka is inhibited where consultation is undertaken solely by mothers. Although consultation between mothers and daughters is certainly also encouraged

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in Islamic jurisprudence, it is clear that the wil¯ayat mush¯araka relationship engenders a separate set of obligations on fathers in the process of contracting marriage. Further, I argue that, as a b¯aligh Hanaf¯ı woman is considered equally capable of contracting marriage for herself, the obligation is even stronger to consult her during the marriage process. However— where Hanaf¯ı doctrine considers the wal¯ı optional in the marriage of a b¯aligh woman—Pashtun culture considers marriage the sole prerogative of parents, often fathers, alone. This leads to a more restrictive and inaccessible marriage process for b¯aligh women in Pashtun culture, compared to the agency afforded in the Hanaf¯ı madhhab. However, perhaps the most surprising finding to emerge relates to the male interviewees’ personal experiences with sh¯ur¯a—the majority of whom were neither consulted prior to marriage, nor do they believe such consultation to be encouraged in their culture. These findings evince a clearer repudiation of personal agency for unmarried Pashtun men, for whom a wal¯ı is neither required, nor expected, throughout all of the major Sunni schools of thought. In fact, the transaction of marriage on behalf of b¯aligh sons is not considered in any depth in Islamic jurisprudence, due to the complete agency afforded to males upon majority. Indeed, Sunni jurists assumed that a free and sane b¯aligh male will always contract his own marriage according to his own will, even if he is advised by others throughout the process—and further, there is no situation in which his being silent in response to the question of marriage can be interpreted as consent, nor does any person have the authority to ‘interpret’ his response in any case. Consequently, although the transaction of non-consensual marriage for b¯aligh sons is invalid in every case, I contend that the transaction of marriage on behalf of b¯aligh sons with ‘consent’, but without consultation, contravenes the complete legal agency automatically afforded to sons upon majority in Islam (even if such marriage remains valid in technical terms). Moreover, I argue that where a b¯aligh male acquiesces to marriage without consultation, that marriage is prima facie invalid, as the threshold for willing and informed consent has not been met—again, based on the complete agency that b¯aligh males possess across all four major Sunni madhhabs.

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From the findings on the first two elements of consent-seeking thus far, it is evident that Pashtun cultural practices diverge from the Hanaf¯ı jurisprudential ideal of consent-seeking in various ways. It is also apparent that the divergences extant within each element do not operate exclusively to one another. For example, the shame attached to marriage discussions among unmarried Pashtuns also relates to the prevalence of acquiescence as verbal consent, at least within the context of this research. Where cultural norms like shame discourage unmarried Pashtuns from discussing marriage and spousal selection with parents, the resulting culture of silence enforces an expectation for acquiescence when (or if ) consent is eventually sought. As noted by many interviewees, it is difficult for children to suddenly open up to parents when consent is sought, particularly if they have been taught to remain quiet and ashamed of discussing such issues throughout their lives. The next section discusses the findings on wil¯aya/guardianship.

Guardianship Within the Research Sample The findings on guardianship demonstrate just how far some cultural practices diverge from Hanaf¯ı doctrine in the Pashtun consent-seeking process. Indeed, almost all of the data pertaining to the Pashtun Nik¯ah plaar (Nik¯ah father) contrasted with aspects of the wal¯ı in Hanaf¯ı jurisprudence. The divergence between the two roles is primarily discussed in the next section, although a brief discussion of the general findings on the Nik¯ah plaar is provided here. The findings show that less than half of the interviewees recognised the term ‘wal¯ı’ in relation to marriage. The majority of these described only aspects of the religiously ascribed role, indicating that full recognition of the Islamic conception of wal¯ı was largely absent among the Pashtuns interviewed. However, all of the interviewees understood the concept when it was equated with the role of the ‘Nik¯ah plaar ’ in Pashtun marriage. This was significant, as it showed that a substantive knowledge gap exists with regard to the religious obligations upon fathers as wal¯ı in Islam, particularly among the Pashtuns in KPK. It was also significant in the sense that the interviewees’ descriptions of the Nik¯ah plaar

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role could be equated only to the formal aspects of the Islamic wal¯ı role, and not the less procedural aspects such as consultation and engaging in mutual decision-making. Indeed, the findings on this last element revealed multiple, and arguably more concerning, points of divergence between culture and religion in Pashtun practice. Unsurprisingly, the men did not speak to personal experiences with the Nik¯ah plaar in their marriage processes. This reflects the nature of both the cultural and religious roles, as both exist to represent women in marriage. However, I found that interaction between the female interviewees and the Nik¯ah plaar was also considerably limited during their marriage processes. In fact, the overwhelming majority did not have any relationship with their Nik¯ah plaar beyond the provision of consent at the time of Nik¯ah, and no discussions about marriage or spousal selection occurred in any of their personal experiences. This was the result of two factors: the shame attached to such discussions (discussed above under the element of sh¯ur¯a) and the fact that extended male relatives primarily take on the role of Nik¯ah plaar in Pashtun culture, not fathers. In practise, the latter compounds the former; given that the shame attached to discussing marriage already increases substantially when those discussions are undertaken by fathers rather than mothers, such shame must increase exponentially when undertaken by men who are even further removed in their relationship to unmarried Pashtun women. In lieu of fathers, the majority identified uncles as the preferred male relation to undertake the role—a preference that stems from the cultural norm of respect, where fathers often delegate the role to older brothers (or brothers-in-law) as a show of respect for the older male. Many male interviewees also posited modesty as another motivator for delegation of the role, in that some fathers remove themselves from the ‘front’ of proceedings in a demonstration of personal modesty. This frequent delegation of the role was confirmed in the personal experiences of the women, the majority of whom were represented by their uncles and male in-laws, despite their fathers being otherwise able to represent them in marriage. Importantly from a legal perspective, a minority of the interviewees believed that fathers ‘cannot’ act in the role of Nik¯ah plaar for daughters (cf. ‘do not’ act in the role as a cultural norm). Notably, however, there

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were no justifications offered for this perceived prohibition, apart from the notion that male relatives from the extended family ‘generally’ undertake the role. I contend that the culturally encouraged, often expected, delegation of the role contradicts the religious conception of the wal¯ı, in which fathers act as natural guardians of daughters. This is particularly evident in the exceptions to natural guardianship, which permits delegation in specific situations, such as the father having passed away, or being patently unfit to act in her best interests—and not because fathers seek to demonstrate respect or modesty during the marriage process. The implications of this manifest difference between the cultural and religious roles are unpacked further in the next section.

Divergence Between the Hanaf¯ı Conception of Wal¯ı and the Nikah ¯ Plaar in Pashtun Marriage The cultural and religious roles diverge in two main ways. First, there is a manifest difference between the roles in practise, indicating that the Nik¯ah plaar role does not equate with the Hanaf¯ı conception of the wal¯ı in marriage. Second, the delegation of the Nik¯ah plaar role to male relatives directly contravenes the Hanaf¯ı conception of the wali in marriage. Both of these are discussed with reference to the findings below.

Differences Between the Nik¯ah Plaar and Hanaf¯ı Wal¯ı in Practise The findings show that in Pashtun marriage, the Nik¯ah plaar role exists to undertake two primary roles in the process of marriage: obtaining consent or permission from the girl at the time of Nik¯ah and acting as witness to her signature on the marriage contract. According to the interviewees, the cultural role is necessitated by the norm of gender segregation, where Pashtun women are predominantly relegated to the private domain, while men occupy the public sphere and represent women in private matters outside the home.27 As such, a visible distinction exists in the movement of the genders in KPK. In practical terms, the Nik¯ah plaar bridges segregation at the

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time of marriage formalities, acting as the messenger of consent between the woman getting married and the religious authority conducting the marriage ceremony—precisely why the role must stay within the family, lest the purpose of segregating from unrelated males be defeated. This reduction to mere messenger explains the finding that no greater relationship had existed, nor had any pre-marriage sh¯ur¯a been undertaken, by the Nik¯ah plaar with the majority of the female interviewees prior to their wedding day. Both obtaining consent and witnessing are limited to the time of formal Nik¯ah proceedings—which marries entirely with the earlier finding on consent as formality in Pashtun culture (discussed under the findings on consent). As the Nik¯ah plaar does not have any role prior to the time of marriage formality, the cultural role effectively negates the religious obligation on the wal¯ı to consult his charge prior to any formal transaction of marriage. This kind of jurisprudentially expected consultation is unable to occur where the Nik¯ah plaar role only comes into effect at the time of marriage formalities. However, the findings indicate that practical impossibility is not the only factor working to impede premarriage consultation in Pashtun culture. Given that marriage sh¯ur¯a is deemed shameful and inappropriate, the restriction of the Nik¯ah plaar role to formal proceedings is actually a secondary impediment, whereas the shame attached to marriage discussions, even within the parent–child relationship, operates as the primary impediment to sh¯ur¯a in Pashtun marriage. Shame as the primary impediment is evident in the fact that parents could well consult their children before delegating the Nik¯ah plaar role to a relative for formal proceedings—the relative then acting only in accordance with the mutual decision of the parents and the woman subject to marriage. Indeed, almost all of the interviewees explained that the Nik¯ah plaar must remain in close consultation with the father of the woman subject to marriage, as the latter almost always retains ultimate authority in the marriage proceedings. Interestingly, if the interviewees had described this as the case in Pashtun culture generally, the delegation of the role to a male relative would not necessarily contravene Hanaf¯ı doctrine (although I concede that it would still technically diverge from the wal¯ı’s personal role in

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marriage). This is because the jurisprudential ideal of ‘mutual sh¯ur¯a’ would still occur between the father-wal¯ı and his daughter, and as such, the obligations upon the father to act in the best interests of his daughter would be met per the wil¯ayat mush¯araka. Drawing on the theoretical underpinning of this research, the formal role of the Nik¯ah plaar would then be a ‘harmless’, and therefore acceptable, cultural practice from an Islamic legal perspective.28 In such a scenario, where sh¯ur¯a is first undertaken by the father-wal¯ı before delegation to the Nik¯ah plaar , the legal maxim ‘al ‘¯ada muh.akama’ (or ‘cultural norm is authoritative in Islamic law’) could be used to argue that the Nik¯ah plaar is a valid cultural incarnation of the wal¯ı among Pashtun Muslims. Instead, however, my findings show that the shame attached to discussing marriage with parents often inhibits sh¯ur¯a in the first instance, irrespective of whether or not the father acts as Nik¯ah plaar for his daughter. It is clear that the cultural role is often limited to the performance of formality alone, and that in the realm of guardianship in Pashtun culture, various kinds of distance are maintained per the norms of gender segregation, modesty, shame, and respect. Thus, in this first aspect of divergence, I conclude that the Nik¯ah plaar as mere messenger does not reflect the mutual consultation, nor the jurisprudential ideal of a ‘joint partnership’, required of the wal¯ı in Hanaf¯ı jurisprudence.

Delegation of the Nik¯ah Plaar Role in Pashtun Culture More significantly, however, the second aspect of divergence relates to the delegation of the Nik¯ah plaar role to male relatives. This cultural practice directly contravenes Hanaf¯ı legal jurisprudence, which considers fathers as the natural guardians of their daughters. Hanaf¯ı jurists justify this automatic conferral based on the relationship assumed to exist in this parent–child context; they considered fathers to have the most ‘informed opinion and abundant affection’ necessary for the protection of the woman’s best interests in marriage.29 This assumption is extended to one other relationship by Hanaf¯ı jurists—that of paternal grandfathers and their granddaughters.30 According to Hanaf¯ı jurists, other male

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relations are ‘deficient’ in their affection for the purpose of legal guardianship, including nuclear relations such as full brothers. This deficiency is considered an impediment to securing the woman’s best legal interests, which subsequently counteracts the objectives of the marriage contract (i.e., securing a marriage in her best interests).31 It is here that I believe delegation of the Nik¯ah plaar role contravenes both the intent and purpose of the wal¯ı in the Hanaf¯ı madhhab. Based on the interviewees’ personal experiences, when fathers delegate the role to relatives who are removed in closeness to the marrying woman, her best interests are practically overlooked in favour of respect for elders. This is particularly the case where fathers would likely act in the role, but for the cultural norm to delegate the role. Delegation also impedes the way in which consent is to be obtained, based on the requirements for lawful consent in Hanaf¯ı jurisprudence. Hallaq explains that per the wil¯ayat mush¯araka, the father-wal¯ı must ‘heed even the most subtle signs of disapproval’ from his charge, as any form of coercion constitutes lawful grounds for annulment of marriage.32 However, delegating the role naturally makes recognition of such disapproval difficult, particularly where the Nik¯ah plaar does not have a close relationship with the woman subject to marriage, and is not familiar with her physical and facial idiosyncrasies. My findings reveal that uncles, cousins, and even male in-laws undertook the role of Nik¯ah plaar for the vast majority of the female interviewees. In all of these cases, the women did not have a close enough relationship with their Nik¯ah plaar to discuss marriage openly and without feeling shame. Their interactions were almost entirely limited to formality alone, when consent was sought for purpose of the marriage contract. Two of the women did not even know who their Nik¯ah plaar had been, and do not know to this day. Further, none of the women engaged in any sort of substantive discussion with their Nik¯ah plaar at the time of consent-seeking, confirming the brevity of these interactions. I subsequently conclude that, in addition to the discrepancy between the intent and purpose of the cultural and religious roles, it becomes clear that delegation further removes the Nik¯ah plaar from the jurisprudentially described guardianship-partnership between a father-wal¯ı and his charge.

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Interviewee Recognition of Divergence Within the rather limited literature on Pashtun marriage norms and practices, there is general acknowledgement that Pashtun cultural practices often diverge from, and sometimes blatantly contradict, Islamic law and jurisprudence in practise.33 Armed with this general acknowledgement, I attempted to investigate whether Pashtuns were themselves aware of any divergences between consent-seeking as it occurs in their culture vis-à-vis their religion. Admittedly, I wanted to delve beyond tallying interviewees’ consent and non-consent, and into their genuine feelings about how the marriage process occurs in their culture. From my interviews with these men and women, I was able to determine that the majority were quite aware of divergences on two fronts: (1) the necessity to obtain consent, and, to a lesser extent, (2) the jurisprudential encouragement to engage in sh¯ur¯a for the purpose of deciding on marriage (when and whom to marry). These divergences were recognised either because the interviewees possessed complete or partial knowledge of the relevant religious principles, or were divergences assumed to exist because the practice felt contrary to the ‘spirit’ of their religion. However, in contrast to the elements of consent and sh¯ur¯a, there was a very clear knowledge gap pertaining to guardianship in Hanaf¯ı marriage. My findings on consent revealed that the overwhelming majority of the interviewees were aware of the Hanaf¯ı requirement to obtain consent before marriage (28 out of 31). For example, all of the Australian Pashtuns, and all of the men in KPK, knew of the religious requirement to obtain consent; these interviewees frequently alluded to the difference between consent required in Islam and consent as it generally exists in Pashtun marriage. Their perception was that Pashtun cultural practices do not reflect the notion of willing consent—a perception primarily related to the form of verbal consent often provided by unmarried Pashtuns (i.e., acquiescence as consent and consent at the time of formality alone). The majority also demonstrated an awareness of the way in which cultural norms impede the religious encouragement to engage in sh¯ur¯a for the purpose of deciding on marriage. The prevailing perception was that parents unilaterally deciding on marriage, without any input

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from those subject to the marriage, did not accord with the ‘spirit’ of Islam. Notably, these interviewees correctly identified sh¯ur¯a as a noncompulsory element in the consent-seeking process; however, most were unaware that Hanaf¯ı jurists strongly encourage sh¯ur¯a in the process of contracting marriage for a b¯aligh woman—nor were they aware that its absence was in fact grounds for invalidating a marriage contracted without consulting the woman in the Hanaf¯ı madhhab. Indeed, knowledge pertaining to the Hanaf¯ı madhhab specifically was rather sparse among both the Australian Pashtun interviewees and those in KPK, even though all 31 interviewees identified as Hanaf¯ı Muslims. Instead, the perception that Pashtun culture diverged from Islam in this regard stemmed from what the interviewees felt was the ‘right’ way to go about obtaining consent in their religion. However, unlike those above, some interviewees did not believe sh¯ur¯a to be religiously compulsory and justified their belief with the Islamic concept of h.aya (modesty). This was interesting, as it revealed that one Islamic principle was incorrectly believed to extinguish another in the minds of those interviewees. In reality, h.aya does not extend to the curtailment of marriage sh¯ur¯a, nor even the contracting of marriage itself. In fact, one particular had¯ıth states that a woman can go so far as to present herself to a righteous man for marriage,34 and jurists reiterate the importance of finding out about a prospective marriage, to the extent that the existence of physical attraction and compatibility should be established before marriage is transacted. These permissions do not work to contravene notions of modesty in Islam, but actually form the basis of informed decision-making in matters of great import, such as the (hopefully) lifelong commitment that is marriage. Nonetheless, for some Pashtuns, discussions of marriage are not only deemed inappropriate due to their cultural fixation on modesty, but is often justified with the Islamic requirement for modesty as well.35 To this point, it is clear that the interviewees were cognisant of two fundamental divergences pertaining to consent and sh¯ur¯a. Many were able to articulate reasons for the broader cultural rejection of religiously sanctioned practices—such as the norm of acquiescence to parental authority (regarding consent) and the cultural fixation on shame (regarding sh¯ur¯a). I believe this shows that many Pashtuns are aware of

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the strength of norms and expectations in their culture, and moreover, are aware of the negating effect of those norms and expectations on the requirements of their religion. In contrast to the majority’s awareness of divergences relating to consent and sh¯ur¯a, there was a very clear knowledge gap pertaining to the Islamic wal¯ı in marriage. Half of the interviewees believed the Nik¯ah plaar role exists only to fulfil certain religious requirements (i.e., obtaining consent and witnessing) and is therefore compulsory to valid marriage. Yet, as mentioned earlier, the Hanaf¯ı madhhab makes it clear that a guardian is not requisite to valid marriage for b¯aligh persons. This must include any cultural manifestation of guardianship in the marriage process, such as the Pashtun Nik¯ah plaar —which challenges the prevailing belief that the role exists to ensure legal validity alone. From the remaining interviewees, many were unsure as to whether the Nik¯ah plaar was compulsory to valid Islamic marriage, and others who believed the role to be unique to Pashtun culture alone. Most of the latter were among those who did not recognise the term ‘wal¯ı’ from a religious perspective to any extent. Evidently, a significant knowledge gap exists among Pashtuns, which is likely responsible for the frequent conflation of the cultural and the religious roles found in the interviewees’ responses. This was an important finding to emerge in this study, given that the former does not reflect the role and expectations of the latter to a satisfactory degree in practise. In short, I found almost no awareness of the concept of a ‘wil¯ayat mush¯araka’, in which fathers and daughters act as partners in the process of securing marriage, among the Pashtun interviewees in this study.

Contraventions of Law in the Findings As I noted at the start of this book, consent-seeking in Pashtun culture, even when studied in relation to Islamic law and jurisprudence, does not exist in a religious vacuum. Chapter 4 explored the wider national and international context within which marriage in KPK exists. Consequently, various issues of ‘secular’ legality were also identified in the interviewees’ responses. Some of these related to aspects of

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gender discrimination evident in the interviewees’ consent experiences; others related to contraventions of law, both national and international, including the existence of non-consensual marriage within the research sample. These issues are discussed with respect to the findings below.

Contraventions of Law in the Data: State and International Existing research on marriage in Pakistan includes arguments on both ends of the legal spectrum. While some scholars find a ‘striking sensitivity’ and cultural appropriateness in the laws that govern marriage in Pakistan,36 others suggest that such virtues are useless, when the lack of implementation and enforcement of these laws in the country contravenes both national and international legal obligations.37 Six of the interviewees in this study were found to have been married without consent. Although this finding was broadly consistent with previous research on marriage in KPK,38 non-consensual marriage explicitly breaches the Pakistan Penal Code 1860, as well as the CEDAW and ICESCR treaties—all of which prohibit non-consensual or coerced marriage, and require full and free consent for lawful marriage.39 Although non-consensual marriage represented less than 20% of the Pashtuns interviewed, this finding was not inconsequential as it revealed the existence of an unlawful marriage practice, even within the context of a small, middle-class, and predominantly educated, research sample. There were also two instances of childhood marriage betrothals—both of whom were among the six interviewees married without consent. Although both women were b¯aligh when they eventually underwent the marriage process, neither woman felt they could practically refuse their childhood betrothals. The question must then be asked: if the women could not refuse these betrothals in adulthood, did they then operate as something akin to child marriage? The lack of choice in this regard is relevant to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which holds that cultural betrothals of children should have no legal effect in terms of contracting a marriage.40 However, as these women were effectively bound by the agreement of

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their parents—these betrothals are, for all intents and purposes, binding in Pashtun culture—and thereby explicitly contravene international law. Further, although I acknowledge that these women have the option to end non-consensual marriages contracted as a result of childhood betrothals under both international human rights and Hanaf¯ı law,41 it is important to recognise the possible consequences of a woman attempting to dissolve her marriage in reality; such attempts can lead to ostracisation and even death.42 Consequently, it is clear that some form of change is needed to reduce instances of non-consensual marriage, and all pathways to such marriage (such as childhood betrothals), for the purpose of complying with both Islamic and international human rights law, in the broader global context. Whether the necessary change should be legal reform is considered in the next chapter.

Gender Discrimination The findings also revealed aspects of gender discrimination in Pashtun marriage practices. Teenage marriage was one aspect in which gender discrimination revealed itself quite clearly. While minor marriage did not manifest in the research sample, five women were married as teenagers. From a legal perspective, none of these were unlawful marriages of a female child under 16 years of age, according to the laws that define and govern child marriage in Pakistan.43 In contrast, none of the men were married as teenagers, which indicated an apparent (if not real) point of discrimination in the marriages of male and female adults in KPK. In addition to teenage marriage, gender discrimination emerged in the interviewees’ beliefs on consent and sh¯ur¯a/consultation. Many believed Pashtuns sons to have more agency than daughters, particularly in terms of refusing a marriage they do not want. Some of the women also felt that the cultural expectation for modesty was more important for girls than for boys in the marriage process, leading to a greater expectation for silence or acquiescence from daughters in response to consent-seeking. Although consistent with existing literature,44 both of these disparities explicitly contravene the principle of gender equality enshrined in international human rights law.

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However, although evident in the interviewees’ beliefs, the perceived extent of discrimination did not manifest in their personal experiences. Indeed, acquiescence to marriage, the shame associated with marriage sh¯ur¯a, and the prevalence of arranged marriage were found to exist to a similar extent among the male and female interviewees. In fact, teenage marriage was the only experience in which a significant disparity between the genders was found to exist. This may be attributable to the role of males in Pashtun society, who are expected to be physically and financially settled before parents will undertake marriage proceedings on their behalf. On the other hand, Pashtun women do not need to be settled in the same way due to the desirability for marriage at an earlier age—when factors such as age, youthfulness, and beauty are considered more pronounced. However, recent research indicates that this may be changing, as higher levels of education are beginning to increase the mean marriage age of middle-class Pashtun women in KPK. Indeed, most of the women married as teenagers in KPK were over the age of thirty (at the time of interview), meaning their marriages had taken place before these changes in middle-class education levels had really begun.45

Arranged Marriage and Its Possible Association with Forced Marriage Twenty-nine of the 31 interviewees (~94%) were in marriages arranged by their parents, and this manifested to a similar extent between the male and female interviewees. That I found such a high percentage to exist within a relatively conservative sample size highlights the ubiquitousness of arranged marriage in KPK and confirms its existence as a norm in Pashtun culture.46 Perhaps significantly, there seemed to be an association between arranged marriage and marriage without consent. All of the interviewees married without consent, and all those who had acquiesced to marriage, had their marriages arranged by their parents. I am wary of concluding that a ‘causative’ relationship exists between arranged marriage and marriage without consent, given the sample size of this study. However, it is certainly true that every interviewee married without consent was

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also subject to arranged marriage. Consequently, there does appear to be an association between the two in this study, which may substantiate the concerns of contemporary Hanaf¯ı jurists, who argue that forced marriage can be hidden behind the ‘façade’ of arranged marriage in certain contexts.47 Taking the findings together, I argue that the norm of arranged marriage may not necessarily operate as a ‘façade’ to enable forced marriage, but actually demonstrates the intractable nature of parental authority in Pashtun culture. Indeed, some parents may not even be aware that neglecting to obtain consent in the pursuit of arranging marriage may force their child into a marriage they do not want, but cannot refuse due to the expectation for silence and acquiescence as responses to marriage, and the shame that prevents communicating any desire to the contrary. On the other hand, some parents may be fully aware of this reality and subsequently expect their children to obey their authority without question. While arranged marriage is not unlawful in Islam, marriage must be contracted with the consent of b¯aligh persons, and with their consultation throughout the process. Instead, my findings show that practices such as marriage without consent, and acquiescence as consent, proliferate amid the ubiquity of arranged marriage. Further, given that a substantial proportion of both consenting (11 out of 25) and nonconsenting (3 out of 6) interviewees described acquiescing to their parents in marriage, I argue that a stronger association in fact exists between arranged marriage and acquiescence in Pashtun culture—than between arranged and forced marriage. While it may seem like semantics—this is an important nuance to understand. Indeed, it is a nuance within which the lived reality of an entire culture resides. Put simply, although both forced marriage and acquiescence to marriage may lead to similar outcomes, the process and expectations surrounding each are vastly different. One clearly provides no choice to the participant; the other presents as all the choice in the world, were the participant not shackled by the expectations of their culture, loaded in each word—or lack thereof—given in response. As a result, I contend that arranged marriage does not ‘hide’ the malevolent forcing of marriage as much it enables seemingly ‘innocent’ cultural

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norms—that do not accord with the Hanaf¯ı jurisprudential requirements of willing consent and mutual consultation—to proliferate in Pashtun culture. The latter is, perhaps, a reality that is more sinister in its difficulty to be identified and navigated by those subject to marriage in KPK. The next and final section considers the sum of the divergences, and contraventions of law, discussed in this chapter in terms of their human cost.

Conclusion: The Human Cost of Breaching Islamic and Human Rights Law To restate the quote in the Preface of this book: is culture part of the ‘inevitable decay’ to which Müller says every religion is exposed?48 There is certainly an argument in the literature that cultural norms have curtailed the importance of Islamic legal principles in many Muslim societies.49 According to the findings of this study, Pashtun cultural norms do appear to disregard, or at the very least, curtail the importance of certain consent-seeking requirements in the Hanaf¯ı madhhab. The question then turns to the individual cost of the divergences identified between consent-seeking as jurisprudentially encouraged and consent-seeking as culturally practiced, in the context of this study. It can be argued that the Hanaf¯ı principles governing lawful consent, and the Islamic conceptions of sh¯ur¯a and the wil¯ayat mush¯araka, all work to ensure that marriage is secured in the best way for a b¯aligh woman (i.e., the jurisprudential ideal). However, the divergences identified in Pashtun cultural practice effectively negate the ideal, leading to negative consequences on the lives of those subject to marriage. In contrast to much of the literature, these norms appear to impact Pashtun men and women. Indeed, the norms of shame, and the unilateral nature of parental authority in marriage and spousal selection, were equally impactful in the personal experiences of the men and women interviewed. All of the interviewees personally believed that consent must be sought prior to marriage—the majority feeling that proper consent was integral to the future well-being of the spouses in marriage. In addition,

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the majority also believed in the importance of parents consulting their children prior to contracting marriage on their behalf. Again, they felt that this aspect of consent-seeking was necessary due to the impact that marriage has on the rest of life. As such, the interviewees felt that some element of contribution was necessary to the decision-making process. In effect, these decisions must be made with adult children, not for them—a feeling that stemmed from many of their own personal experiences. This notion of the ‘right way’ to contract marriage, in a way that respects the present and future well-being of those involved, accords with the higher objectives (maq¯asid ) of Islamic law and also reflects human rights principles enshrined in international law. Having reflected on the findings, I contend that consent provided willingly, and obtained without expectation or pressure, promotes two higher objectives of Islamic law—the protection of mind (of the marrying parties), the protection of life, and the protection of future offspring.50 It also reflects the requirements of international law and the protection of the family unit.51 Although beyond my field of expertise, a very cursory search of the literature shows that non-consensual marriage frequently leads to negative outcomes in the lives of some—including various forms of intra-marital abuse (such as physical, emotional, and financial abuse), intra-marital rape and ongoing sexual abuse, being ‘overloaded’ with domestic responsibilities by spouses and in-laws, being prevented from (or having less opportunity to) continue education, painful sexual intercourse and ensuing complications (in the case of minor marriage), higher rates of mortality in pregnancy and childbirth (in the case of teenage marriage), death in more tragic circumstances, and for many, simply a lifetime of hardship and unhappiness.52 It is certainly no stretch to argue that such consequences positively offend the higher objectives of shar¯ı‘a pertaining to the protection of mind, life, future offspring. That such negative consequences can stem from a religiously unlawful practice leads me to answer the theological question underpinning this study with more confidence. Yes, some Pashtun marriage practices must be discarded from the perspective of Hanaf¯ı law and jurisprudence. Further, they must be discarded in order to reflect the higher objectives

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of shar¯ı‘a—which arguably exist for the sole purpose of helping Muslims categorise any situation or practice in terms of benefit and harm. More than anything, I believe that the ongoing, often harmful, impact of these consequences on children demands reform in every Muslim society in which these practices remain a cultural norm. Thus, I argue that the findings of this study in relation to all three elements of consent-seeking highlight the need for reform in KPK. There is no doubt that reform is necessary, not only to bring Pashtun cultural practices in line with Hanaf¯ı doctrine, but to protect the well-being of those subject to marriage in Pashtun culture. Such reform will work to satisfy both the requirements of international human rights law and the ‘ideal’ process of consent-seeking envisaged by Hanaf¯ı jurists. The next and final chapter summarises the main findings of this study and presents recommendations that I believe are necessary to effect practicable change in the Pashtun cultural context of KPK.

Notes 1. Wael B Hallaq, Shar¯ı’a: Theory, Practise, Transformations (Cambridge University Press, 2009) 276. 2. Kecia Ali, Money, Sex, and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period (PhD Dissertation, Duke University, 2002) 455–6. 3. Burh¯an al-D¯ın al-Fargh¯an¯ı al-Margh¯ın¯an¯ı, Al-Hid¯ayah: The Guidance (Imran Ahsan Khan Nyazee trans, Amal Press, 2006) vol 1 [trans of: Al-Hid¯ayah f¯ı Sharh. Bid¯ayat Al-Mubtadi’ (first published circa 12 CE)] 491; Susan A Spectorsky, Women in Classical Islamic Law: A Survey of the Sources (Brill, 2010) 149; Kecia Ali, Marriage and Slavery in Early Islam (Harvard University Press, 2010) 36; Hallaq, above n 1, 274. 4. Hallaq, above n 1, 275. 5. Arab Naz and Hafeez-ur-Rehman, ‘Pakhtunwali versus Islam: A Comparative Analysis of Women’s Rights in Islam and their Violation under Pakhtunwali (Pakhtun Code of Life) in Khyber Pakhtunkhwa Pakistan’ (2011) 1(2) International Journal

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6. 7.

8.

9.

10. 11. 12.

13.

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of Humanity and Social Sciences 22, 27; Arab Naz et al, ‘The relational analyses of Pakhtun social organisation (Pakhtunwali ) and women’s Islamic rights relegation in Malakand division, KPK Pakistan’ (2012) 4(3) International Journal of Sociology and Anthropology 63, 68–9. Naz and Rehman, above n 5. (KPK-F Chamtaara): ‘What do they say, “they leave the mother’s home and stays in the husband’s house until they die.” You hope her life is good’. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 491–7; see also Spectorsky, above n 3, 148–9; Wael B Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge University Press, 2001) 274; Ali, above n 3, 41. Umar Daraz, Arab Naz and Waseem Khan, ‘Early Marriage: A Developmental Challenge to Women in Pakhtun Society’ (2014) 8(1) FWU Journal of Social Sciences 91; Chata Malé and Quentin Wodon, ‘Basic Profile of Child Marriage in Pakistan’ (2016) The Health, Nutrition and Population Knowledge Briefs of the World Bank . Naz and Rehman, above n 5, 23. Naz and Rehman, above n 5, 30. Armando Geller, Joseph F Harrison, and Matthew Revelle, ‘Growing Social Structure: An Empirical Multiagent Excursion into Kinship in Rural North-West Frontier Province’ (2011) 5(1) Structure and Dynamics 1, 6. Ali, above n 3, 37; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 493– 4. It is also important to note that, although Hanaf¯ı legal doctrine allows silence to be construed from consent, the notion of silent acquiescence may be inconsistent with international human rights provisions, which require full and free consent for lawful marriage (refer to Chapter 4 for the international laws that exist to govern marriage consent in KPK). This may inform future research on the discrepancies between international law, and shar¯ı ‘a, with respect to the issue of valid marriage consent.

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14. Kecia Ali uses the phrase ‘silent acquiescence’ to describe silence as a form of lawful consent from virgin women in the Hanaf¯ı madhhab: Ali, above n 3, 37. 15. Naz and Rehman, above n 5, 27. 16. Jeanne Berrenberg, ‘Beyond Kinship Algebra. Values and the Riddle of Pashtun Marriage Structure’ (2003) 128 Zeitschrift fur Ethnologie 269, 277. 17. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 492; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 1, 275. 18. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 492. 19. Muhammad ibn Adam al-Kawthari, Al-Arba ‘¯ın: Elucidation of the Forty Had¯ıths on Marriage (Turath Publishing, 2013) 64. 20. Naz and Rehman, above n 5, 27. 21. Berrenberg, above n 16, 280. 22. Fazlur Rahman, ‘Principle of Sh¯ur¯a and the Role of the Umma in Islam’ (1984) 1(1) Journal of Islamic Social Sciences 1, 5. 23. Spectorsky, above n 3, 204; Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 1, 275; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 496. 24. Zanariah Noor, ‘Gender Justice and Islamic Family Law Reform in Malaysia’ (2007) 25(2) Kaijan Malaysia 121, 132. 25. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 1, 275. 26. Spectorsky, above n 3, 204. 27. Hafiz Hifazatullah et al, ‘Attitude of Religious Concerns Towards Women Emancipation in Tehsil Takht-Bhai’ (2011) 3(3) Interdisciplinary Journal of Contemporary Research in Business 1135; Jocelyn Richard, ‘Women in Northern Pakistan – Protected by Tribe, Territory or Taliban?’ (2010) 3 UCL Human Rights Review 236. 28. Umar Farooq Abd-Allah, ‘Islam and the Cultural Imperative’ (2009) 1(2) IAIS Journal of Civilisation Studies 1, 8. See also Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Islamic Texts Society, 1999) 248. 29. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 496. 30. Spectorsky, above n 3, 69. 31. Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 496.

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32. Hallaq, Shar¯ı’a: Theory, Practise, Transformations, above n 1, 275; Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 496. 33. See, e.g., Hafiz Hifazatullah et al, above n 27; Naz and Rehman, above n 5, 22; Naz et al, above n 5, 63; Abdul Qadeer, ‘The Status of Women in FATA: A Comparison between Islamic Principles and Pashtunwali’ (2014) 1(7) International Journal of Research 1231, 1263; Ghulam Shams-ur-Rahman, ‘Pashtunwali and Islam: The Conflict of Authority in the Traditional Pashtun Society’ (2015) 35(1) Pakistan Journal of Social Sciences 297, 304; Afshan Jafar, ‘Women, Islam, and the State in Pakistan’ (2005) Gender Issues 35; Leonard N Barlotti, ‘Negotiating Pakhto: Proverbs, Islam and the Construction of Identity among Pashtuns’ (2001) 18(3) Transformation 196. 34. See S.ah.¯ıh. al-Bukh¯ar¯ı 5120, Book 67, Had¯ıth 56, which states: ‘Narrated Thabit Al-Banani: I was with Anas while his daughter was present with him. Anas said, “A woman came to Allah’s Apostle and presented herself to him, saying, ‘O Allah’s Messenger (SAW), have you any need for me (i.e. would you like to marry me)?’ Thereupon Anas’s daughter said, ‘What a shameless lady she was! Shame! Shame!’ Anas said, ‘She was better than you; she had a liking for the Prophet (SAW), so she presented herself for marriage to him.”’. 35. See Muhammad Ayub Jan and Shahida Aman, ‘Islam and Pakhtunwali: Convergence and Divergence of Religious and Cultural Identities among the Pakhtuns of Pakistan’ (2015) 6(2) Peshawar Islamicus 15, 18–20; Naz and Rehman, above n 5, 23; Noor Sanauddin, Jamil Ahmad Chitrali and Shakeel Ahmad, ‘Chadar and Chardiwari: An Outline of Pashtun Patriarchy’ (2015) 22(2) PUTAJ Humanities and Social Sciences 63, 67–8; Shams-ur-Rahman, above n 33, 304. 36. Karin Carmit Yefet, ‘What’s the Constitution Got To Do With It? Regulating Marriage in Pakistan’ (2009) 16 Duke Journal of Gender Law & Policy 347; Annie Bunting, ‘Stages of Development: Marriage of Girls and Teens as an International Human Rights Issue’ (2005) 14(1) Social and Legal Studies 17. 37. See, e.g., Nasreen Akhtar, ‘Pakistan is a dangerous and insecure place for women’ (2013) 3(2) International Journal on World Peace 35; Filomena M Critelli, ‘Between Law and Custom: Women, Family

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38.

39.

40. 41.

42.

43.

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Law and Marriage in Pakistan’ (2012) 43(5) Journal of Comparative Family Studies 673; Nida Kirmani, ‘Women’s Rights as Human Rights: The Case of Pakistan’ (2000) Senior Thesis Projects, 1993– 2002 (University of Tennessee, Tennessee Research and Creative Exchange); Anita M Weiss, ‘Interpreting Islam and Women’s Rights: Implementing CEDAW in Pakistan’ (2003) 18(3) International Sociology 581. Daraz, Naz and Khan, above n 9, 91; Muhammad Ifzal Mehmood and Muhammad Abdullah Fazi, ‘The Right to Marry in Islam: Scrutinising Customs of Marriages in the Pashtun Belt of Pakistan’ (2016) 2(3) Pakistan Annual Research Journal 52; Malé and Wodon, above n 24; Naz and Rehman, above n 5, 30; Berrenberg, above n 16, 269. Pakistan Penal Code (Act No XLV of 1860) (Pakistan) s 498B; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’) art 16(1)(b); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 171 (entered into force 3 January 1976) (‘ICESCR’) art 10. CEDAW art 16 (2). These practices also contravene Hanaf¯ı legal doctrine—a childhood betrothal that leads to marriage without consent may be dissolved on that basis, given that consent is obligatory in the marriage of a Hanaf¯ı b¯aligh woman: Al-Margh¯ın¯an¯ı (Nyazee trans), above n 3, 492–3; Spectorsky, above n 3, 66; Ali, above n 3, 41. See, e.g., Sanauddin, Chitrali and Ahmad, above n 35, 66; Syed Hassan Raza and Mahmoona Liaqat, ‘Honor Killing of Women: A Comparative Study of the Pakistani Print Media’ (2016) 10(1) VFAST Transactions on Education and Social Sciences 1, 2–3. Child Marriage Restraint Act (Act No XIX of 1929) (Pakistan) s 2(a). Although greater examination lies beyond the scope of this study, it must be noted that the laws defining child marriage in Pakistan contravene international human rights principles of gender equality, as well as the Constitution of Pakistan, as the legal definition of ‘child’ differs between males and females in provincial and federal

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44. 45.

46. 47. 48.

49. 50.

51.

52.

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legislation: CEDAW arts 2(a)-(g). See also Constitution of the Islamic Republic of Pakistan 1973 (Amended by the Constitution Twenty Fourth Amendment Act 2017) (Pakistan) art 25. Geller, Harrison and Revelle, above n 12, 6; Naz and Rehman, above n 5, 30. Madiha Bhatti, Questioning Empowerment: Pakistani Women, Higher Education & Marriage (PhD Dissertation, State University of New York, 2013) ch 3. Berrenberg, above n 16, 269; Naz and Rehman, above n 5, 27; Naz et al, above n 5, 68–9. Al-Kawthari, above n 19, 60–1. Friedrich Max Müller, ‘Chips from a German Woodshop’ in Ivan Strenski (ed), Thinking About Religion, A Reader (Blackwell Publishing, 2006) 51. Noor, above n 24, 132. David L Johnston, ‘Maq¯asid al-Shar¯ı ‘a: Epistemology and Hermeneutics of Muslim Theologies of Human Rights’ (2007) 47(2) Die Welt des Islams 149. ICESCR art 10. This Article requires marriage to be entered into with the ‘free consent’ of both parties, with the intent to protect the family unit. This provision acknowledges the impact that nonconsensual marriage can have upon those subject to such marriage, and upon the children born from them. Mariam Ouattara, Purna Sen and Marilyn Thomson, ‘Forced marriage, forced sex: The perils of childhood for girls’ (1998) 6(3) Gender & Development 27, 27–31; see generally Deepa Mattoo and Sydele E Merrigan, ‘“Barbaric” cultural practices: Culturalizing violence and the failure to protect women in Canada’ (2021) 12(1) International Journal of Child, Youth and Family Studies 124; Sonia M Frías, ‘Family and Partner Violence Against Women: Forced Marriage in Mexican Indigenous Communities’ (2017) 31(1) International Journal of Law, Policy and the Family 60.

9 Effecting Change: Is It Possible to Bring Cultural Practice and Legal Rights Together?

In this final chapter, I attempt to bridge the gap between culture and law—between knowledge and practise—by providing practical recommendations for reform in the Pashtun context of Khyber Pakhtunkhwa (KPK), and considering the potential challenges that any reform will likely face in the province. This is followed by a look at the opportunities for further and future research that have arisen since I undertook this study, before I conclude this wonderful journey into jurisprudence with my ‘final’ remarks.

Summary of the Main Findings The aims of this study have been noted throughout this book. These included establishing whether Pashtun consent-seeking practices diverged from religious prescription, and determining the extent to which Pashtuns were aware of any divergence. Secondary to these was ascertaining the perceived effectiveness of law reform in the context of Khyber Pakhtunkhwa. These aims were necessary to the conduct of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6_9

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valid academic research and also to the normative legal framework that I utilised in the conduct of this empirical research. To address these aims, I undertook semi-structured in-depth interviews with 31 Pashtun men and women whose marriages were contracted and concluded in KPK. The preliminary literature review phase indicated that many Pashtun marriage norms and practices contravened Hanaf¯ı consent-seeking principles. However, in-depth empirical questioning of the Pashtun consent-seeking process in relation to consent-seeking in the Hanaf¯ı madhhab was noticeably absent. To address this gap in the literature, my interviews explored the Pashtun interviewees’ experiences with consent, sh¯ur¯a (consultation), and guardianship—or the three ‘elements’ of consent-seeking—during their own marriage processes (all of which had taken place in KPK). The interviewees’ personal attitudes and beliefs on consent-seeking in their culture generally, as well as their knowledge and perceptions on consent-seeking from a religious legal perspective, were also canvassed in the interviews. The interviews were transcribed and coded, and then analysed against the aforementioned elements that I had derived from Hanaf¯ı jurisprudence during the literature review phase. The breakdown of consentseeking jurisprudence into these elements allowed for a detailed examination of Pashtun consent-seeking norms and practices against Hanaf¯ı doctrine, and was the most significant aspect of this study in terms of its contribution to existing scholarship. My analysis showed that marriage among the Pashtuns of KPK looks different to the jurisprudential ideal articulated in Hanaf¯ı jurisprudence. Indeed, there was no doubt that Pashtun consent-seeking practices frequently diverge from Hanaf¯ı legal principles with respect to all three elements. On consent, the prevalent verbal responses of cultural acquiescence and consent as formality alone both diverge from Hanaf¯ı jurisprudential expectations. The expectation to obey parental decisionmaking/authority in this regard also does not reflect the personal agency that b¯aligh women hold in terms of contracting marriage for themselves in the Hanaf¯ı madhhab, and is an even greater violation of the absolute agency afforded to b¯aligh men in all four major Sunni madhhabs. Lastly, Hanaf¯ı jurists prohibit marriage that is contracted as a result of pressure or force; however, both the forms of verbal consent mentioned

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above, and marriage without consent, offend the Hanaf¯ı requirement for genuine and willing consent from b¯aligh persons. On sh¯ur¯a, the shame attached to marriage discussions in Pashtun culture directly contradicts the Islamic conception of sh¯ur¯a, rendering the latter inappropriate in practise, despite being obligatory upon Muslims when deciding significant private matters as marriage. Further, the overall inability to discuss marriage contradicts the expectations of the wil¯ayat mush¯araka envisaged by Hanaf¯ı jurists. Finally, the cultural preference for sh¯ur¯a to be undertaken by mothers negates a primary function of the father-wal¯ı to consult and obtain willing consent from his daughter prior to contracting marriage on her behalf. Indeed, if a b¯aligh person chooses not to contract their own marriage (or cannot by way of cultural norms), barring exceptions, this legal obligation falls on no other person in the Hanaf¯ı madhhab. On guardianship, the cultural role of the Nik¯ah plaar diverges from the Hanaf¯ı wal¯ı in both purpose and intent. Perhaps most offensive to Hanaf¯ı doctrine is the delegation of the cultural role to male relatives from the extended family, which disregards the conferral of wil¯aya (guardianship) upon biological fathers entirely. As the Nik¯ah plaar almost exclusively exists for the purpose of formality alone, sh¯ur¯a is virtually unable to occur in Pashtun culture. Consequently, the Nik¯ah plaar cannot be considered a ‘harmless’ equivalent to the Hanaf¯ı wal¯ı in Pashtun culture, given that the cultural role simply does not fulfil any of the requirements of the wil¯ayat mush¯araka during the marriage process. My findings also revealed that cultural acquiescence (as consent), arranged marriage, non-consensual marriage, and the shame attached to marriage sh¯ur¯a manifested similarly between the genders. In addition, both male and female interviewees were aware of the ways in which their culture diverged with regard to consent, and sh¯ur¯a to a lesser extent— however, were quite unaware of the extent to which the Pashtun Nik¯ah plaar diverged from the wal¯ı in Islamic (Hanaf¯ı) marriage. These findings suggest that cultural norms and beliefs operate irrespective of gender in Pashtun culture. Overall, this study shows, quite conclusively, that Pashtun consentseeking practices generally do not reflect the letter or spirit of Hanaf¯ı law and jurisprudence. It also shows that reform is necessary to (1) bring

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Pashtun culture closer to religion in practise, and (2) meet the objectives of both national and international law. Before presenting my recommendations for such reform, the next section summarises my subsidiary findings on the interviewees’ perspectives towards law reform, and what they believe to be the most effective agents of change in their society.

Pashtun Perspectives on the Effectiveness of Law Reform This section provides a summary of my findings on Pashtun attitudes and beliefs on the effectiveness of law, and legal reform, in KPK. These findings were not wholly relevant to my focus on consent-seeking throughout this book; as such, although I recognise it is unorthodox, I have briefly included these findings in this concluding chapter for the purpose of contextualising the recommendations that follow. Given their relevance to potential reform in KPK, the entirety of these findings will hopefully inform future publications to arise out of this study.

Effectiveness of Law Reform The findings indicate that Pashtun marriage largely falls beyond the scope of law in KPK. This perception not only stems from the strength of Pashtun cultural norms, but a weakness in enforcement, together with a gap in the implementation of law that exists in the province. This is consistent with existing literature on the effectiveness of law in KPK, which has concluded that secular law has limited practical effect in the province, and in Pakistan generally.1 Only a small minority of the interviewees believed that secular law alone could effect change in Pashtun culture and, even then, that only ‘strong’ implementation of the law would be successful in KPK. The strength of the law’s implementation was considered both by those who believed that law could effect change in KPK and by those who believed it could not. For the former, the strength of a law combined with its effective enforcement was a necessary characteristic of effective law; thus,

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a law that is not effectively implemented would operate as a barrier to the effectiveness of law generally. However, the prevailing belief was that although strong implementation of secular law may force compliance among Pashtuns, it would not lead to successful, or permanent, change in Pashtun attitudes and values. Law reform was considered to have even less effect in the rural and tribal areas of KPK, due to the greater strength of culture in those regions. In contrast to secular law, more than half of the interviewees (18 out of 31) believed that ‘Islamically justified’ law reform was more likely to effect change among Pashtuns in KPK. Pashtun culture is frequently examined in relation to Islam and is reflective of the role that religion plays in Khyber Pakhtunkhwa, including the strong religious identity of Pashtun Muslims. Consequently, the fact that Islamically justified law reform was considered more acceptable and effective than secular law reform was unsurprising. Moreover, if this majority belief within the research sample is reflective of Pashtun attitudes more generally, it may be argued that the implementation of Islamically justified law is more likely to effect practical, and attitudinal, change among Pashtuns in KPK. In addition, such laws would not contravene the constitutional supremacy of shar¯ı‘a in Pakistan. Only 5 interviewees considered Islamically justified law reform to be as ineffective as secular law reform in the province. These interviewees believed that cultural norms were too strong to allow for the effectiveness of either type of law. However, this belief among the minority stemmed from the overall majority belief that law alone could not lead to successful or permanent change in KPK, but rather, needed to be supplemented by the most effective agent of change: education.

Educating for Change Every single interviewee identified education as the most effective change agent in KPK, believing that, unlike law, education could effect successful and permanent change as a standalone measure in the province. Twenty-two interviewees stated that education must supplement any kind of law reform in order to have any hope of being effective

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(~71%). Indeed, education emerged as an effective change agent from the very preliminary stages of data analysis and truly permeated the interviewees’ beliefs on the question of change or reform in their culture. The majority firmly posited secular education as the most effective change agent in the context of KPK. This belief acknowledged the lower levels of literacy among Pashtuns in KPK generally,2 as well as education as a primary factor in reducing child marriage around the world.3 It was also a belief supported by existing research, which suggests that secular education among Pashtun men not only leads to greater rates of female education, but also reduces the prevalence of early marriage.4 In concert with secular education, most of the interviewees explained that Pashtuns need to understand why reform is necessary in order to ensure successful, and permanent, change in the province—which they felt was best achieved via media-led education campaigns (discussed further below). Surprisingly, only a minority believed that more religious education was also necessary to effect attitudinal change among Pashtuns. The need for this type of education was overwhelmingly cited with regard to the cultural attitudes of men in KPK, alluding to the patriarchal nature of Pashtun culture.5 The need for religious education is also very evident in the findings pertaining to guardianship (discussed in the previous chapter). I argue that—although secular education may reduce the prevalence of practices like non-consensual marriage—religious education is more likely to help Pashtuns understand and distinguish religious requirement from cultural practice. However, although religious education is necessary to increase knowledge of Islamic principles, and to combat those cultural attitudes and practices incorrectly conflated with religion, traditional madrassa-style (religious seminary) education was not considered the most effective type of education to achieve this.6 For example, one male interviewee noted that, although KPK had plenty of religious madrassas, un-Islamic practices were still prevalent throughout the province. Interestingly—for the purpose of fostering greater awareness of both religious principles and the need for law reform—media-led education was considered more effective than other forms of dissemination in modern times. The reasons for this were the increase in social media

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among young Pashtuns, as well as the most recent change of government in KPK. Two male interviewees believed that the current government in KPK,7 which ran political and social media campaigns that called for a ‘modern’ Islamic Republic of Pakistan, demonstrated the effectiveness of media-led religious campaigns in the province. For these interviewees, given that Pashtuns in KPK actively voted for a ‘modern’ Muslim political party, this also indicated the willingness of Pashtuns to embrace religious change for the better. Undoubtedly, both secular education and religious education are necessary to effect change among Pashtuns in KPK. However, the latter is likely to be more effective via educational awareness campaigns, as opposed to being promulgated through traditional forms of religious education, which were not considered effective to any extent by the majority of the Pashtuns interviewed. Only a minority believed that penalties, such as fines and imprisonment, may also effect change in KPK. On the other hand, the majority felt that Pashtuns will happily weather the consequences of actions they deem necessary or their ‘right’—and that no penalty currently exists to dissuade Pashtuns from engaging in unlawful (even un-Islamic) practices. However, this belief related more to the lack of implementation of such penalties in KPK, than to the futility of the penalties themselves. Overall, I found that law reform alone is not considered able to effect successful, or permanent, change in Pashtun attitudes and values. Islamically justified law reform was believed more likely to do so, and this was attributed to Pashtuns’ overwhelming respect for religion, enshrined as it is in the Pashtun code of honour. There was a belief that this honourbound adherence would protect the need for religiously justified reform, provided Pashtuns were themselves aware of the religious legal principles in question. However, the majority believed that even Islamically justified law reform should be supplemented by education to ‘prepare the ground’ for reform in KPK. Both secular education and religious education were considered necessary to effect lasting change; secular education would increase the receptiveness of Pashtuns to the need for reform and challenge cultural attitudes, while religious education would lead to an increase in awareness of the divergences between cultural practice and religious requirement.

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In the next section, I present the recommendations and considerations that flow from the findings of this study, including potential challenges to reform in KPK.

The Way Forward: Recommendations for Policy-Makers in Muslim Nation States As I explained earlier in Chapter 2, empirical research with a normative framework should ideally consider the evaluative and prescriptive together, in that normative judgements or recommendations must be grounded in, and relate to, the descriptive or evaluative (i.e., empirical) aspects of the research.8 SanneTaekama goes so far as to state that the possibility for success should be considered in research that identifies and advocates the need for change, or its relevance ‘to legal practise will be severely limited’.9 This includes recommendations for potential improvements to existing law, the creation of new law, or changes to legal interpretation.10 In the rest of this chapter, I have used the findings to articulate solutions to the identified problems based on an ‘already existing normative setting’11 ; in this case, the existing normative setting is provided by primary sources of shar¯ı‘a and fiqh which must be utilised as the framework for valid Islamic legal research.12 However, the reason for engaging with reform did not stem solely from the conduct of normative legal research, but as a result of the challenges and difficulties of the current situation that could be usefully addressed by policy reform. The extent of contravention of both religious and secular legal principles, and the consequent nature and degree of the difficulties faced by those married without full and free consent, also made the focus on policy recommendations and potential law reform very important. Yet, even taking into account these considerations, it is important to note that the recommendations presented in this chapter do not require change on the basis of one doctoral study alone, but operate as a ‘starting point’ to addressing the practical legal considerations that arose in the course of this study.13 In addition to these research aims were my personal aims in conducting this study. To quote one member of the supervisory team,

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this encompassed the desire ‘to change the world’, at least in the context of consent-seeking in KPK. It was clear early on that this desire could not be realised in the completion of a doctorate alone; changing the world requires practical change among people and human systems. Nonetheless, the dream lives on because, in a very real way, research like this is the first step in trying to change the world. In the first step, this study shows that Pashtun consent-seeking norms and practices do not reflect much of the letter or spirit of Hanaf¯ı legal doctrine. From the responses and beliefs of the Pashtun interviewees, it is also evident that change is possible in the Pashtun cultural context of KPK. In the following section, I present the considerations for policymakers that arose out of the findings, before my recommendations for future research—the latter intended to ensure the applicability and effectiveness of the former in KPK.

Recommendations to Bring Pashtun Consent-Seeking Customs in Line with Hanaf¯ı Islamic Principles Three main considerations flow from this research. These should be considered by provincial policymakers to increase the likelihood of effecting successful legal and societal change in KPK. First, my findings show that Islamically justified law reform (hereafter ‘IJLR’) is likely to be more acceptable than secular law reform in KPK. The majority believed that IJLR would be more respected, and subsequently more acceptable, to Pashtuns in the province. However, the greater efficacy of IJLR is not only based on the responses of interviewees, but on the operation of law in Pakistan.14 As explained earlier in Chapter 4, any legislative reform regarding consent-seeking in KPK would be subject to the constitutionally enshrined primacy of shar¯ı‘a in Pakistan. If deemed repugnant to the injunctions of Islam, such reform will have no legal or practical effect in the province.15 Taken together, the findings of this study and the constitutional primacy of shar¯ı‘a indicate that any legal reform must be justified soundly within Islamic law for both constitutional and cultural acceptability in KPK.

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However, the finding that IJLR is likely to be more acceptable in KPK is not without its own challenges. It is possible that any reform attempting to legislate the form of verbal consent—to the micro-level of legislating against acquiescence and consent at the time of marriage proceedings alone—will be deemed repugnant to the injunctions of Islam. This is because, even though I contend that both these types of verbal consent actually contravene Hanaf¯ı consent-seeking principles, both may be deemed ‘technically’ valid in shar¯ı‘a, as both are prima facie forms of verbal consent. Like the rejection of amendments to increase the legal age of marriage, the technical validity of verbal consent, no matter its form, may justify rejection of any law that attempts to legislate the form of verbal consent for the purpose of valid Muslim marriage. Given that such reform would be an attempt to legislate for a ‘jurisprudential ideal’ (or the intent of law), both IJLR and secular law reform are likely to face the same technical validity argument. That secular law reform does not form part of these recommendations is also attributable to both the findings of this study and the constitutional primacy of shar¯ı‘a. Only a minority of the interviewees believed that secular law reform would be effective in KPK, and even then, this minority belief was entirely contingent upon the strength of its enforcement. To be effective, secular law must be enforced at the local level; however, consistent enforcement at the local level presents a historic obstacle to the effectiveness of law in KPK (and Pakistan generally).16 The constitutional primacy of shar¯ı‘a in Pakistan also presents an added challenge to such reform across the country. In contrast, the findings indicate that IJLR is less likely to be dismissed outright, and more likely to encourage scholarly and social debate. To do this, the process of attempting to enact IJLR must be public knowledge. It is this public awareness that will increase the likelihood of encouraging debate, which may in turn increase awareness of the jurisprudentially ideal process of consent-seeking. According to the interviewees, the public dissemination of religious knowledge is necessary to effect cultural and attitudinal change in KPK, even where law reform itself is not able to be successfully implemented. This leads to the second consideration. Although IJLR is likely to be more successful than secular law reform in KPK, this type of law

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reform is also considered unlikely to effect permanent cultural or attitudinal change on its own. The findings indicate that formal secular (universal) education is necessary to stimulate widespread change, particularly among poorer and rural Pashtuns. The need for greater education was a consistent theme throughout the findings, evident not only in the interviewees’ beliefs, but in their personal experiences as well. The interviewees in this study were generally educated to a tertiary level and employed, and perhaps significantly, non-consensual marriage manifested highest among the lowest educated group (women in KPK). The consistent association between higher levels of formal education and positive change in cultural practices makes clear that provincial policies are needed to promote an increase in educational enrolment in KPK. For this, greater infrastructure and governmental strategies are necessary to increase educational accessibility for Pashtuns from lower socio-economic backgrounds, and Pashtuns in tribal/rural regions. This in turn leads to the third consideration. The findings show that there is a distinct lack of knowledge and awareness of religious principles among Pashtuns in KPK. This was evident with particular regard to issues of complexity and nuance, as opposed to surface-level religious law. For example, although the majority believed that obtaining consent for marriage was compulsory in Islam, few demonstrated awareness or understanding of the legal principles that necessitate consent for marriage, even though many of the female interviewees felt that acquiescence did not seem to align with the spirit of their religion. The interviewees were also predominantly unaware of the religious obligation to engage in sh¯ur¯a for significant private matters as marriage, the role and expectations of the Islamic wal¯ı, and the concept of the wil¯ayat mush¯araka between fathers and daughters in marriage. It was these nuanced principles from which Pashtun consent-seeking customs diverged in all three jurisprudentially-derived elements of consent-seeking. This study revealed the need for greater religious knowledge—in which the spirit and jurisprudential ideal is included alongside the black-letter of shar¯ı‘a—to be disseminated among Pashtuns. That the interviewees were mostly educated and from middle-class social backgrounds reveals the surprising extent to which nuanced religious principles are unknown among Pashtuns—which is likely higher among

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Pashtuns with less access to education and employment opportunities. Evidently, there is a need for increased religious education and awareness among all Pashtuns. As a Muslim, there is a particular onus upon the religious class; the lack of nuanced religious understanding found to exist in this study reveals the inefficacy of current religious education in KPK (and possibly Pakistan generally). This fact does not accord with the constitutionally enshrined importance, nor the socially enshrined authority, of religious law in Pakistan. My findings indicate that religious education needs to be disseminated in the way of public education and awareness campaigns, rather than traditional madrassa-style religious education. This is because such education needs to be accessible to all Pashtuns, not just those who attend madrassa (who are, in any case, predominantly children). According to the interviewees, the majority of whom attended madrassa themselves as children, madrassa-style religious education is largely ineffective for the purpose of changing cultural norms and attitudes. Indeed, a few interviewees explicitly noted that religious education long promulgated throughout madrassas and mosques has not reduced un-Islamic practices in KPK. This indicates one of two things: that cultural norms and practices are rarely addressed within existing forms of religious education in KPK, or that these norms and practices are supported by a considerable number of religious teachers and preachers in the province. The latter was posited by many of the interviewees, who noted that Pashtuns can either be righted or ‘de-tracked’ by religion, and that the majority of Pashtuns in KPK rely heavily upon local religious figures for their religious knowledge and opinions. These beliefs were relevant to Pashtun men in particular, who have the access to religious figures in mosques that women do not. Therefore, to address issues of religious legal nuance, provincial policymakers must recognise the ineffectiveness of traditional avenues from which to disseminate religious education, steeped as they are in a historically patriarchal context. Rather, provincial policymakers should tap into the recent embrace of social media and public campaigns in KPK. In the words of one male interviewee from the harshest of tribal regions, religious education and awareness campaigns are necessary to ‘prepare the ground’ for

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later law reform and to effect cultural and attitudinal change among Pashtuns in the province. Religious education (and subsequent law reform) must address the following areas found to diverge from Hanaf¯ı doctrine; each sub-point includes a specific piece of religious knowledge found to be deficient among the Pashtuns in this study: • The necessity to obtain consent: – including the unlawfulness of non-consensual marriage of b¯aligh persons in Hanaf¯ı jurisprudence. • The requisite form of consent: – including the encouragement to obtain verbal consent in contemporary Hanaf¯ı jurisprudence; – the willing nature of consent that must be obtained from b¯aligh men and women (based on the legal autonomy they possess to contract marriage on their own behalf ); and – awareness of the pressure that surrounds common forms of verbal consent in Pashtun culture (including the cultural expectation to acquiesce to parents in marriage, and the lack of ability to refuse marriage when consent is sought at the time of marriage formality alone). • The jurisprudentially ideal wil¯ayat mush¯araka: – including foremost that fathers and b¯aligh daughters must act as partners in the process of securing marriage; – the religious obligation to engage in sh¯ur¯a for significant private matters as marriage (including the greater obligation to consult b¯aligh men and women as a result of their legal autonomy); – the legal role of the Islamic wal¯ı in marriage (including fathers as wal¯ı in the first instance, who must act in best interests, on the basis that they are assumed to possess informed opinions and abundant affection in the Hanaf¯ı madhhab); and – the jurisprudential discouragement to delegate legal representation to extended male relatives (via the role of Nik¯ah plaar ) where sh¯ur¯a

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and willing consent are not undertaken and obtained separately by parents. A process in which parents and children discuss and decide upon marriage together—where consent is willingly provided, and where b¯aligh men and women are respected in accordance with their legal autonomy in the Hanaf¯ı madhhab—will promote the social and personal agency of women (and unmarried Pashtun men to a greater individual extent) in Pashtun culture. This kind of social reform will not only bring Pashtun cultural norms and practices more in line with Hanaf¯ı jurisprudence—but will also meet international legal obligations. To achieve harmony with religious and international law, it is clear that the above legal principles should be disseminated through religious education and awareness campaigns in KPK. Prime among the avenues to disseminate such awareness is television and social media. However, many Pashtuns are only willing to embrace policies and principles that are disseminated in a respectful and intelligent way among the population. Indeed, respect permeated much of the process undertaken to conduct this research. Education and awareness cannot be imposed upon Pashtuns. The strength of Pashtun culture, evidenced throughout this book, would likely result in the rejection of paternalistic imposition. Rather, change must be effected through discourse and engagement with Pashtuns themselves. As one male interviewee in KPK explained, the ‘cultural voice’ of Pashtun people must be imbued in any attempt to effect legal or social reform in the province. Thus, provincial policymakers should recognise the effectiveness of – (1) greater access to secular education, (2) public dissemination of religious education, and (3) public awareness of any attempt to enact Islamically justified law reform (irrespective of its successful enactment) – on the ability to effect cultural and attitudinal change among Pashtuns. However, I believe that further research is also necessary to determine how these policies and strategies could be strengthened for implementation in KPK.

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Recommendations for Further Research The narrow conceptual focus of this study naturally gives rise to the need for further research. My findings clearly demonstrate that Pashtun consent-seeking customs are not reflective of Hanaf¯ı legal principles in KPK, but now the next step must be considered; that is, how do we bridge this gap? Although the recommendations above go some way to guiding effective reform, more research is undoubtedly needed to determine how successful reform can be effected in KPK. This includes research that further ascertains the extent to which policymakers should consider law reform, given that Pashtuns themselves do not believe such reform can effect successful or permanent change in Pashtun cultural attitudes and values. It is also clear that the strong religious identity of Pashtuns has great relevance to the efficacy of law; Pashtuns respect the tenets of their religion as part of their intractable cultural identity. It is therefore a deficiency in secular and religious education that inhibits positive change in KPK, not religion itself. Although Pashtuns who are formally educated (to a secondary or tertiary level) seek verbal consent for marriage to a greater extent than among those less educated (predominantly poorer and rural/tribal Pashtuns), deeper knowledge and awareness of religious principles are lacking even among educated Pashtuns. This highlights the need for religious education and awareness campaigns to be targeted towards all Pashtuns. Accordingly, further research is needed to determine the specific mechanisms and strategies through which education and awareness campaigns would be most effective. The advantage of further research in this regard is that these mechanisms could then be utilised to challenge any other divergent cultural norm/practice that exists among Pashtuns in KPK.

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Final Remarks This study was the first to break down Hanaf¯ı jurisprudence on consent-seeking into the ‘jurisprudentially-derived’ elements of consent, sh¯ur¯a/consultation, and wil¯aya/guardianship, for the purpose of comparison with Pashtun consent-seeking norms and practices. I found that Pashtun culture diverges significantly from Hanaf¯ı doctrine, and that Pashtuns are largely aware of this divergence. I found that the strength of cultural norms such as shame and modesty, and cultural expectations such as acquiescence, meant that many Pashtuns were not sure whether they could discuss marriage with their children as parents, nor with their parents as children. I found that cultural norms effectively render the obligation to consult to the realm of impropriety, and committed those who speak openly of marriage to irreligious immodesty. I found that Pashtuns did not know much about guardianship from a religious perspective at all—the idea of a ‘guardianship-partnership’ so foreign that many turned to what they did know in their culture—the distant, almost non-existent ‘guardian’ ironically called the Nik¯ah ‘father’ in Pashto … a man who acted as anything but a father entrusted with the best interests of his daughter in marriage. I found that all of these pointed to so many ways in which consent-seeking in my culture fell away from consent-seeking in my religion. The personal narrative in the Preface of this book posed two personal questions: ‘I wanted to know what the father-daughter relationship looked like in my religion, and should we be talking about marriage at all? Did my religion agree with the practises I saw so many times in my culture? ’ This study shows that, as part of the jurisprudentially ideal guardianshippartnership, Hanaf¯ı guardian-fathers not only should, but are expected to talk to their daughters (and children generally) about marriage to obtain willing consent. The cultural norm of silence that permeates the issue of marriage in Pashtun culture does not reflect the process of consent-seeking envisaged by Hanaf¯ı jurists. Respectful openness, not shameful silence, is expected between fathers and b¯aligh daughters. They should be partners in the process of securing a marriage that—hopefully—embodies the love and mercy spoken of in the Holy Qur’an. It is clear then that legal reform, supplemented by consultative education

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and awareness, is necessary to achieve this vision of consent-seeking in the Pashtun cultural context of KPK. Although I have found Pashtun culture to diverge from the tenets of Hanaf¯ı Islam in consent-seeking, I am emboldened by the fact that these findings also show the willingness of Pashtuns to embrace the tenets of their religion, as well as the need for change. On that note, I hope this book goes some way towards informing successful, permanent, and respectful change in that romantic mountainous province of Khyber Pakhtunkhwa in north Pakistan.

Notes 1. Muhammad Zaheer Abbas and Shamreeza Riaz, ‘Legal Protections Provided Under Pakistani Law against Anti-Women Practises, Implementation Gaps in Theory and Practise’ (2013) 8(2) The Dialogue 172; Umar Daraz and Mohammad Hussain, ‘The Relational Analyses of Pakhtun Social Organization (Pakhtunwali) and Women’s Islamic Rights Relegation in Malakand Division, KPK Pakistan’ (2012) 4(3) International Journal of Sociology and Anthropology 63; Zia Ullah Akhunzada, Farhat Ullah and Muhammad Ashfaq Khan, ‘Child Rights Issues in Khyber Pakhtunkhwa: A Qualitative Study’ (2016) New Horizons 10(2) 55. 2. Abdul Rehman, Luan Jingdong and Imran Hussain, ‘The ProvinceWide Literacy Rate in Pakistan and Its Impact on the Economy’ (2016) 1 Pacific Science Review B: Humanities and Social Sciences 140, 142. 3. UNICEF, ‘Child Marriage and the Law: Legislative Reform Initiative Paper Series’ (2008) Division of Policy and Planning . 4. Saeeda Khan, ‘Impact of Father Education on Female Education in Pashtun Society of District Charsadda, Pakistan’ (2016) 2(4) Imperial Journal of Interdisciplinary Research 1013, 1017; Aamir Jamal, ‘Why He Won’t Send His Daughter to School—Barriers to Girls’

284

5.

6.

7.

8.

9. 10. 11. 12.

H. Pirzada

Education in Northwest Pakistan: A Qualitative Delphi Study of Pashtun Men’ (2016) Sage Open Publications 1, 6–7. Jeanne Berrenberg, ‘Beyond Kinship Algebra. Values and the Riddle of Pashtun Marriage Structure’ (2003) 128 Zeitschrift fur Ethnologie 269; Armando Geller, Joseph F Harrison, and Matthew Revelle, ‘Growing Social Structure: An Empirical Multiagent Excursion into Kinship in Rural North-West Frontier Province’ (2011) 5(1) Structure and Dynamics 1, 6. Madrassas (religious seminaries) are prevalent throughout Khyber Pakhtunkhwa. Many parents send their children to madrassas outside attendance in public or private schools for after school religious lessons—although a minority enrol their children in madrassas alone (this is the case more frequently among poorer Pashtuns). See generally Irum Shaheen, ‘Education in Pakistan: A Case Study of Hurdles and Proposals for Improvement of Education Sector in Khyber Pakhtunkhwa’ (2013) 2(3) Educational Research International 79, 81. The current ruling party is the Pakistan Tehreek-i-Insaf (PTI) party, led by former Pakistan national cricket captain, Imran Khan. PTI ran a campaign that ‘spelled out a vision of transparent government in a modern Islamic republic focusing on the power of the youth in Pakistan. …’: Saifuddin Ahmed and Marko M Skoric, ‘My Name Is Khan: The Use of Twitter in the Campaign for 2013 Pakistan General Election’ (Paper presented at the 47th Hawaii International Conference on System Science, Hawaii, 6–9 January 2004) 2244. Sanne Taekama, ‘Theoretical and Normative Frameworks for Legal Research: Putting Theory into Practise’ (2018) Law and Method 1, 7–11. Ibid. Taekama, above n 8, 6–7. Jan Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’ (2009) 7 TICOM 45, 54–7. Mahdi Zahraa, ‘Unique Islamic Law Methodology and the Validity of Modern Legal and Social Science Research Methods for Islamic Research’ (2003) 18(3/4) Arab Law Quarterly 215, 218–220.

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13. Jan Smits, ‘Law and Interdisciplinarity: On the Inevitable Normativity of Legal Studies’ (2014) 1(1) Critical Analysis of Law 81, 82. 14. The Constitution of Pakistan 1973 upholds the primacy of shar¯ı‘a within the operation and enforcement of Pakistani law, declaring that ‘no law shall be enacted that is repugnant’ to the injunctions of Islam: see Constitution of the Islamic Republic of Pakistan 1973 (Amended by the Constitution Twenty Fourth Amendment Act 2017) (Pakistan) art 227 (‘Constitution of Pakistan 1973’). 15. Constitution of Pakistan 1973 arts 203D(1), 203D(2)(b). 16. Lucy Carroll, ‘The Muslim Family Laws Ordinance, 1961: Provisions and Procedures—A Reference Paper for Current Research’ (1979) 13(1) Contributions to Indian Sociology 117.

Index

A

Abd-Allah, Umar Farooq 16–18, 262 Ab¯u Y¯usuf 10, 18, 61, 75, 76 acquiescence acquiesce 5, 156, 163, 239, 244, 279 acquiescence as consent 169, 201, 235, 251, 257, 268, 269 cultural acquiescence 148–150, 198, 235, 237, 238, 268, 269 ‘¯adah 8–10 individual usage 8 adultery 2, 125 Ali, Kecia 2, 16, 62, 66, 71, 72, 85, 91, 93, 94, 96–99, 101, 103, 148, 170, 223, 237, 260–262, 264

al-Kawthari, Muhammad ibn Adam 82, 84, 102, 103, 170, 262, 265 al-Margh¯ın¯an¯ı, Burh¯an al-D¯ın 71, 73, 74, 76–78, 96–102, 199, 223, 260–264

B

b¯aligh 70–77, 79, 82–84, 100, 139, 143, 144, 151, 169, 173, 174, 199, 202, 203, 227, 228, 230, 231, 236, 238, 239, 243, 244, 252–254, 257, 258, 264, 268, 269, 279, 280 of majority 144 Berrenberg, Jeanne 110, 126–129, 170, 199, 237, 262, 264, 265, 284

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Pirzada, Islam, Culture, and Marriage Consent, New Directions in Islam, https://doi.org/10.1007/978-3-030-97251-6

287

288

Index

bikr 72–74, 143, 144, 151, 158, 230 bul¯ugh 3, 70, 71, 143, 174, 231

C

change attitudinal 271, 272, 276, 277, 279, 280 change among Pashtuns 271, 273 change in KPK 270, 271, 273, 275, 281 cultural change 276–281 Child Marriage Restraint Act 130, 134, 264 CMRA 115, 116, 120–122 citizen 115, 122 global citizen 6, 105, 113 consent consent as formality 147, 238, 248 consent from an Islamic perspective 164 form of consent 3, 14, 35, 44, 72, 73, 79, 84, 145, 160, 236, 238, 239, 279 interpreting consent 14 necessity to obtain 3, 4, 6, 66, 75, 160, 162, 165, 166, 195, 251, 279 non-consensual 6, 35, 114, 149, 153, 154, 160, 168, 169, 201, 234, 235, 244, 254, 265, 269, 279 verbal consent 3, 4, 44, 72, 73, 84, 85, 148, 149, 152, 153, 155–158, 162–164, 169, 236–239, 245, 251, 268, 276, 279, 281

consent-seeking breakdown of consent-seeking 15, 48, 268 elements of consent-seeking 15, 58, 69, 75, 82, 139, 195, 199, 201–203, 223, 229, 230, 245, 260, 277 Hanaf¯ı consent-seeking principles 268, 276 jurisprudential ideal 68, 69, 80, 82, 85, 173, 228, 237, 239, 245, 249, 258, 268, 276, 277 process of consent-seeking 2, 14, 64, 79, 84, 139, 175, 193, 202, 227, 242, 243, 260, 276, 282 Constitution 132, 133 constitutional primacy of shar¯ı‘a 275, 276 Constitution of Pakistan 115, 118, 120, 129, 130, 264, 285 consultation 64, 66, 68–70, 81, 162, 176, 178, 179, 181, 182, 184, 189–191, 193, 194, 196, 198, 201, 217, 222, 228, 242–244, 246, 248, 249, 257, 258 sh¯ur¯a (consultation) 14, 48, 66, 68, 80, 81, 85, 139, 140, 162, 173, 175, 176, 197, 201, 202, 228, 232, 239, 242, 255, 268, 282 contract 2, 3 marriage contract 3–5, 65, 66, 70, 74–79, 81, 83, 85, 154, 160, 163, 167, 190, 194, 199, 202–205, 210, 213, 215, 218, 222, 227, 228, 230, 238, 244, 247, 250, 252, 259, 269, 279

Index

Nik¯ah contract 167, 209, 214, 215 Convention on the Elimination of All Forms of Discrimination against Women 1979 117 CEDAW 118–120, 131, 254, 264, 265 Council of Islamic Ideology (CII) 121, 135 culture/cultural cultural acquiescence 148–150, 198, 235, 237, 238, 268, 269 cultural expectation 5, 111, 186, 237, 238, 255, 279, 282 culturally predatory 9 cultural maxims 111, 237 cultural norms 1, 2, 5, 7–9, 11, 27, 30–33, 37, 46, 81, 95, 99, 105, 108–110, 112, 122, 125, 150, 153, 154, 156, 169, 173, 174, 180–182, 184, 189, 191, 196, 201, 203, 212, 229, 230, 233, 238, 240–243, 245, 246, 249–251, 258, 260, 269–271, 278, 280–282 cultural practice 2, 7–11, 21, 22, 27, 31, 32, 46, 69, 82, 105, 106, 110, 112–114, 121, 122, 140, 164, 166, 167, 169, 186, 197, 201, 219, 220, 222, 228, 229, 233, 242, 245, 249, 251, 252, 258, 260, 272, 273, 277, 278, 280, 281 holistic concept of culture 8 material culture 8 nonmaterial culture 8 custom 1, 5, 8–10, 16, 27, 62, 65–67, 95, 112, 125, 139, 229, 277, 281

289

D

data 14, 22, 26, 31–33, 35, 39, 43–45, 47, 140, 141, 143, 145, 151, 152, 161, 166, 168, 174, 186, 197, 198, 201, 203, 221, 222, 230, 232, 234, 236, 245 data analysis 31, 32, 43–48, 140, 143, 173, 175, 189, 204, 206, 207, 223, 237, 272 data collection 30–33, 36, 40, 48 daughter 3, 33, 34, 36, 65, 66, 69, 77–81, 85, 93, 94, 110, 113, 116, 129, 139, 146, 153–157, 159, 163, 166, 169, 183–192, 202, 205, 208, 211, 213, 217, 222, 228, 237, 240, 241, 243, 246, 249, 253, 255, 263, 269, 277, 282 b¯aligh daughters 173, 242, 279, 282 daughters cf . sons 158 decision-making 5, 80, 111, 112, 148, 154, 168, 176, 177, 192, 198, 210, 213, 216–218, 237, 239, 246, 252, 259, 268 delegation 212, 246, 247, 250, 269 delegation of the Nik¯ah plaar 247, 249, 250

E

education educational background 46, 165, 178, 230, 235 educational reform 272, 273 education campaigns 272 religious education 221, 272, 273, 278–281

290

Index

guardianship-partnership 14, 69, 79, 85, 139, 141, 173, 208, 228, 229, 242, 243, 250, 282 legal guardian 3, 4, 14, 72, 74, 75, 82, 94, 97, 139, 173 natural guardianship 77, 247

El-Fadl, Khaled Abou 80, 95, 101, 102 emotional blackmail 82, 150

F

father-guardian 78 father-wal¯ı 79, 173, 208, 227, 228, 243, 249, 250, 269 federal 6, 12, 15, 86, 106, 114, 116, 118, 120, 134, 264 federal law 114, 116, 118–120, 122, 123, 132 Federal Shariat Court (FSC) 115 feminist 12, 13 feminism 12 fiqh 21, 24, 57–59, 61, 77, 90, 274 framework external framework 26 internal framework 26 normative legal framework 27, 268 research framework 22 theoretical framework 25

G

gender gender discrimination 254, 255 gender representation 46 gender segregation 37, 214, 218, 247, 249 guardian 3, 4, 14, 43, 48, 66, 72, 74, 75, 79, 83, 85, 116, 140, 199, 202, 204, 227, 238, 253, 282 father-guardian 78, 282 guardianship

H

habit 1, 9, 21, 23 had¯ıth 10, 58, 59, 62, 64–66, 71, 75, 80, 82, 84, 87, 89, 92–96, 98, 99, 129, 252 had¯ıth literature 64–67, 87, 95, 112 Hallaq, Wael 2, 10, 16, 18, 48, 60, 63, 65, 77, 79–81, 87–93, 96, 98–102, 203, 223, 243, 250, 260–263 Hanaf¯ı 1, 3–6, 10, 14, 15, 18, 21, 27, 33, 44, 57, 58, 63, 66–75, 77–80, 82, 83, 85, 99, 102, 121, 122, 139–141, 143, 151, 160, 168–170, 173, 193, 203, 204, 207, 208, 210, 213, 218, 221–223, 227–229, 234, 236, 238, 239, 242, 244, 245, 247–252, 255, 257, 258, 260, 262, 268, 269, 279, 282 Ab¯u Han¯ıfa 18, 61, 62, 71, 72, 75, 76 Hanaf¯ı madhhab Hanaf¯ı law and jurisprudence 1, 6, 14, 48, 57, 68, 69, 114, 140, 259, 269 Hanaf¯ı legal doctrine 3, 4, 6, 48, 68, 72, 73, 75, 77, 80, 82, 85, 105, 113, 116, 135, 140, 142,

Index

169, 175, 214, 231, 261, 264, 275 Hanaf¯ı legal perspective 6, 48, 68, 140, 233 Hanaf¯ı legal principles 13, 14, 21, 27, 44, 105, 114, 139, 141, 142, 167, 169, 201, 202, 268, 281 school of thought 3, 18, 33, 62, 67 Hanaf¯ı Muslim 1, 57, 67, 69, 228, 252 Hanbal¯ı 4, 6, 64, 71, 75 Ibn Hanbal 60, 62, 63, 66 h.aya modesty 188, 252 Human Rights Watch 12, 18, 19, 112, 128

291

Islam 1–3, 7–10, 12, 22–24, 27, 28, 57, 58, 60, 65, 83, 84, 95, 102, 105, 109, 110, 114–116, 118, 121, 129, 161, 164–167, 174, 194–196, 203, 206, 218, 219, 230, 232, 233, 244, 245, 251, 252, 257, 271, 275–277, 285 Hanaf¯ı Islam 142, 275, 283 Islamic Islamic jurisprudence 2, 3, 8, 58, 70, 75, 77, 244 Islamic law and jurisprudence 2, 8, 22, 23, 57, 58, 61, 64, 85, 233, 251, 253 Islamic legal perspective 1, 7, 8, 11, 13, 28, 29, 206, 222, 249 istih.s¯an 59 istis.h¯ab 59 istis.l¯ah 59

I

¯ ın 10 Ibn ‘Abid¯ IJLR 275, 276 ‘Islamically justified law reform’ 271, 273, 275, 280 ‘ijtih¯ad 23, 24, 59, 62, 63, 89, 95 ijm¯a‘ 58, 59, 88, 89 insider-outsider 31, 32, 47, 240 placement of the researcher 31 International Covenant on Economic, Social and Cultural Rights 1966 131, 133, 264 ICESCR 118, 119, 131, 132, 254, 264, 265 international law 6, 15, 114, 117–120, 229, 255, 259, 261, 270 international legal obligations 254, 280

J

jurisprudence classical Hanaf¯ı jurisprudence 82, 83 contemporary Hanaf¯ı jurisprudence 279 jurisprudential schools 4, 70 modern Hanaf¯ı jurisprudence 77, 82, 84, 85

K

kaf¯a’ah 76, 99, 227, 228 Khyber Pakhtunkhwa 11–13, 15, 25, 35, 36, 45, 46, 48, 69, 82, 85, 86, 96, 105–108, 114, 115, 117, 120, 122–124, 128,

292

Index

135, 143, 168, 229, 267, 271, 283, 284 KPK 1, 4–6, 11, 13, 15, 27, 30, 31, 34–36, 40, 43–45, 47, 57, 67, 73, 74, 106, 107, 109, 111, 114, 116, 117, 120–123, 125, 140–144, 146, 148, 153–165, 167–169, 174–177, 183–186, 188, 189, 195, 198, 201–203, 205, 207, 211, 219, 221, 228, 231–236, 242, 245, 247, 251–256, 258, 260, 261, 267, 268, 270–278, 280, 281, 283

L

law 1, 2, 6, 7, 9–13, 22, 24–28, 41, 58–63, 67, 69, 73, 78, 87–89, 94, 108, 112, 114–116, 118, 120, 123, 125, 140, 229, 236, 239, 249, 254, 255, 258–260, 267, 270, 271, 274–278, 281, 285 law in context 67, 86, 105 law reform 28, 114, 120, 122, 267, 270–274, 276, 279, 281 ‘Islamically justified law reform’ 271, 273, 275, 280 secular law reform 271, 275, 276 limitation 6, 13, 46, 47

M

madrassa 272, 278 majority 3, 4, 6, 10, 13, 14, 36, 57, 63, 66, 69–73, 76, 81, 88, 106–109, 117, 120, 140, 153, 156, 158, 163, 165–168, 170,

173, 174, 179, 180, 182, 184, 189–191, 196, 198, 202, 205–207, 211, 216, 218, 221, 227, 228, 231, 232, 234, 236, 239–241, 244–246, 248, 250, 251, 253, 258, 271–273, 275, 277, 278 majority of interviewees 167–169, 177, 193, 194, 197, 202, 210, 213, 219, 221–223, 237, 240, 241, 251 M¯alik¯ı M¯alik 62, 66 M¯alik ibn Anas 62, 66 school of thought 4 marital status 14, 35, 37, 42, 44, 70–72, 85, 229–231 marital status of interviewees 143 marriage arranged marriage 83, 84, 112, 150, 151, 168, 169, 184, 203, 237, 256, 257, 269 ‘best interests of the girl in marriage’ 78–81, 249, 250, 282 child marriage 116, 117, 120–122, 130, 133–135, 231, 254, 255, 264, 272 contracting of marriage 4, 68, 112, 182, 230, 252 forced marriage 12, 68, 83, 84, 112–114, 150, 151, 155, 257 lawful marriage 3, 65, 68, 69, 73, 76, 77, 83, 118, 122, 139, 254, 261 minor marriage 95, 100, 144, 151, 231, 232, 255, 259

Index

non-consensual marriage 6, 118, 120, 121, 146, 168, 235, 254, 255, 259, 272, 277 successful contracting of marriage 1, 6, 35 teenage marriage 144, 255, 256, 259 valid marriage 3, 4, 14, 57, 85, 140, 160, 161, 167, 174, 195, 203, 215, 218, 219, 221, 223, 227, 253, 261 married 3–5, 31, 33, 35, 43, 64–66, 70–74, 76, 78, 83, 84, 92–94, 99, 100, 113, 116, 117, 140, 143–147, 149–151, 154, 159, 161, 162, 168, 176, 179, 182, 192, 195, 204–206, 230, 231, 234, 235, 240, 248, 254–256, 274 married Pashtun 6, 35, 36, 187 married status 5 mujtahid 59, 60, 64, 88, 89, 91, 94, 95 Muslim 1–12, 14, 16, 21–24, 27, 28, 33, 58, 60, 62, 63, 67, 68, 80–88, 92–95, 105, 107, 109, 115, 140, 169, 227, 229, 233, 243, 258, 260, 269, 273, 276, 278 Hanaf¯ı Muslim 1, 57, 67, 69, 228, 252 Pashtun Muslim 1, 4, 14, 34, 69, 105, 113, 140, 175, 228, 229, 233, 249, 271

N

Nik¯ah Kit¯ab al-Nik¯ah 64, 92

293

Nik¯ah contract 167, 209, 214, 215 Nik¯ah plaar 113, 202–204, 206–223, 245–250, 253, 269, 279 normative normative conclusions 25, 229 normative framework 11, 15, 25–27, 274 normative judgements 11, 26–28, 274 normative legal research 7, 11, 22, 28, 44, 49, 274 norms 8, 10, 11, 13, 29, 30, 37, 85, 87, 89, 108, 110, 140, 158, 159, 180, 203, 227, 228, 233, 249, 251, 253, 258, 268, 275, 278, 282 cultural norms 1, 2, 5, 7–9, 11, 27, 30–33, 37, 46, 81, 95, 99, 105, 108–110, 112, 122, 125, 150, 153, 154, 156, 169, 173, 174, 180–182, 184, 189, 191, 196, 201–203, 212, 229, 230, 233, 238, 240–243, 245, 246, 249–251, 257, 258, 260, 269–271, 278, 280–282

P

Pakistan 1, 5, 12, 13, 19, 62, 63, 106, 107, 109, 112, 114–122, 127, 129–133, 135, 254, 255, 264, 270, 271, 273, 275, 276, 278, 283–285 Pakistani 1, 5, 12, 15, 106, 107, 109, 112, 113, 115, 120–122, 285

294

Index

Pakistani Bureau of Statistics 6, 17, 51, 126 participant characteristics 34 Pashtun Pashtun attitudes 13, 30, 34, 37, 46, 270, 271, 273 Pashtun cultural context 5, 6, 13, 48, 74, 82, 108, 140, 143, 150, 157, 160, 174, 184, 198, 201, 206, 219, 228, 242, 260, 275, 283 Pashtun cultural norms 243, 258 Pashtun cultural practice 21, 121, 164, 166, 169, 186, 196, 197, 219, 242, 245, 251, 258, 260 Pashtun culture 2, 5, 6, 12, 14, 15, 30, 32, 33, 36, 39, 41, 42, 48, 79, 82, 85, 86, 98, 105, 108–113, 121–123, 125, 142, 144, 146, 150, 152–154, 156–159, 167–169, 173, 174, 177, 179–183, 185–189, 193, 197, 198, 202, 203, 211, 214, 215, 218, 220, 222, 223, 228, 230, 232–235, 238, 240–244, 246, 248, 249, 252, 253, 255–258, 260, 269–272, 279, 280, 282, 283 unmarried Pashtun 5, 6, 32, 35, 111, 174, 198, 201, 240, 241, 244–246, 251, 280 Pashtunwali code of honour 108, 232, 273 melmastya 39, 125 shariat 109, 110, 160, 232 patriarchy 154, 227 patriarchal values 12, 113 personal 2, 6, 22, 23, 29, 31, 33, 35, 37, 44, 47, 53, 60, 61, 65,

70, 73, 80, 122, 143, 148, 149, 151, 154, 159, 162, 163, 173, 178, 183, 195, 212, 217, 232, 237–240, 248, 268, 274, 280, 282 personal beliefs 142, 160, 161, 164, 169, 174, 189, 235 personal experiences 15, 43, 44, 140, 141, 143, 152, 157, 159, 160, 168, 175, 186, 197, 201, 207, 209, 210, 221, 222, 228, 232–234, 236, 239, 243, 244, 246, 250, 256, 258, 259, 277 Prophet Muhammad 9, 10, 58, 60, 62, 64–66, 71, 75, 86, 87, 94, 99, 129 public awareness 276, 280 public awareness campaigns 278

Q

qiy¯as 58, 59, 62, 89 qualitative 21–23, 29, 46 qualitative methodology 29 qualitative research 29, 36, 45, 69 Qur’an 9, 10, 58, 59, 62, 80, 81, 94, 95, 102, 282

R

recommendations 2, 11, 13, 15, 27, 260, 267, 270, 274–276, 281 reflexivity 32 research empirical research 21, 23–26, 46, 268, 274 further research 7, 13, 280, 281 Islamic legal research 11, 22, 23, 27–29, 274

Index

normative legal research 7, 11, 22, 28, 44, 49, 274 qualitative research 29, 36, 45, 69 research framework 22 research methodology 22, 25

S

sampling judgement sampling 34 non-probability sampling 34 purposive sampling 34, 35 snowballing 36, 37 Sandelowski, Margaret 45, 53, 170 secular 2, 6, 13, 48, 105, 114, 121, 122, 229, 253, 272–274, 280, 281 secularisation 12 secular law 12, 73, 121, 270, 271, 275, 276 sensitivity 33 cultural sensitivity 33 sexual desire 2, 16 sexual status 3, 4, 73, 98, 144 Shabana, Ayman 9, 15, 17, 18 Sh¯afi‘¯ı 4, 6, 60, 62, 63, 66, 71, 75, 94 sharam 181, 186, 187 cultural value for shame 166 shame 174, 180, 182, 183, 186, 188, 240 shar¯ı‘a 11, 21, 23, 24, 27, 28, 57–59, 62–64, 73, 86–89, 110, 114–116, 118–122, 133, 174, 228, 259, 261, 271, 274–277, 285 maq¯asid al-shar¯ı‘a 265 non-shar¯ı‘a 6, 105, 106, 113, 116 shariat 12, 109, 110, 125, 160, 232

295

Shayb¯an¯ı 61, 73, 75, 76 sh¯ur¯a marriage sh¯ur¯a 177, 180, 182, 184, 185, 188, 189, 191, 193, 196–198, 201, 240, 241, 248, 252, 256, 269 mutual sh¯ur¯a 179, 185, 189, 243, 249 personal experiences with sh¯ur¯a 174, 175, 182, 244 sh¯ur¯a and shame 242, 243 sh¯ur¯a (consultation) 14, 48, 66, 68, 80, 81, 85, 139, 140, 162, 173, 175, 176, 197, 198, 201, 202, 228, 232, 239, 242, 255, 268, 282 silence 3, 65, 72–74, 79, 84, 93, 98, 111, 157, 159, 162, 164, 236, 245, 255, 257, 282 silence as consent 74, 145, 151, 157, 158, 168, 169, 236 silent acquiescence 72, 74, 148, 170, 237, 261, 262 sin 16, 88 Smits, Jan 27, 49, 50, 284, 285 Spectorsky, Susan 62, 71, 77, 81, 91, 96–102, 223, 243, 260–262, 264 sunnah 28, 58, 62, 87, 94 Sunni 5, 59, 61, 63, 67, 69, 71, 76, 80, 90, 100, 244, 268 Sunni Islam 6, 57, 92 Sunni school of thought 3, 4, 6, 57, 61, 63, 64, 66, 67, 71, 77, 99, 101, 109, 205, 244

296

Index

non-virgin 3, 4, 71–74, 82, 84, 93 virginity 4, 33, 71, 73, 75, 98, 239

T

taboo 8, 98, 174, 178, 179, 187, 188, 230, 240, 241 Taekama, Sanne 25, 49, 50, 274, 284 thayyib 71–73, 143 thematic analysis 44 Theme Theme 1 141–143, 157, 230 Theme 2 152, 159 Theme 3 159, 163 Theme 4 164, 167 Theme 5 175, 179, 208 Theme 6 180, 189 Theme 7 189, 193 Theme 8 193, 197 Theme 9 204, 207, 221 Theme 10 207, 210, 222 Theme 11 210, 217 Theme 12 218, 221, 223 theoretical underpinning 7, 249 theoretical question 1, 7, 10, 11

U

ummah 4, 16, 60 ‘urf 59 custom 8–10 us¯ul al-fiqh 23, 59, 61, 63, 88

W

wal¯ı 3, 14, 48, 72, 74–81, 83, 85, 94, 97–101, 113, 139, 140, 202–208, 210, 213, 214, 216, 218–223, 227, 239, 242–245, 247–250, 253, 269 ‘Islamic wal¯ı’ 203–205, 207, 214, 219, 221, 222, 233, 246, 253, 277, 279 West Western 3, 8, 12, 13, 25, 32, 69, 89, 121, 191 Western anthropological 8 Westernisation 12 wil¯aya 68, 75, 140, 202, 205, 228, 245, 269, 282 wil¯ayat mush¯araka 14, 79, 80, 85, 139, 173, 205, 221, 228, 242, 243, 249, 250, 253, 258, 269, 277, 279 witness 206, 213, 215, 218–220, 222, 247 witnessing consent 219, 221, 222, 248, 253

V

Z

virgin 64, 66, 72, 74–76, 84, 85, 92, 97, 100, 148, 170, 262

Zahraa, Mahdi 18, 22, 28, 48–50, 68, 284