Is premarital sex a crime?

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The official English version of the Pakistani Penal Code from 1860, with amendments through February 2017, published on The Pakistan Code, operated by the Pakistani Ministry of Justice, contains information on "fornication" in section 496B. According to this law, a man and a woman who are not married to each other are considered lewd if they willingly have sexual intercourse with one another. Those who commit fornication are punished with a prison sentence of up to five years and a fine of up to 10,000 rupees (the equivalent of around 55.85 euros):

"496B. Fornication.

(1) A man, and woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.

(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees. " (The Pakistan Penal Code 1860, last amended on February 16, 2017)

In an article in the Financial Times in July 2016, the so-called Hudood regulation is mentioned. This notorious ordinance, which was promulgated in 1979 by the former military dictator General Zia-ul-Haq, makes adultery and premarital sex into crimes that could be punishable by death. Women could also be flogged and stoned. According to the Financial Times article, eighty percent of women sitting in Pakistani prisons today are being held on charges related to the Hudood Ordinance:

"Under the infamous Hudood ordinance, promulgated by former military dictator General Zia-ul-Haq in 1979, women can be flogged and stoned. Adultery and premarital sex are crimes punishable by death, in effect criminalizing rape victims. Eighty per cent of the women held in Pakistani jails today are incarcerated on charges related to the Hudood ordinance. "(FT, July 22, 2016)

In a journal article published in the Washington and Lee Law Review in 2007, Martin Lau, professor of law at the University of London and a member of the Center of Islamic and Middle Eastern Law, examines the impact of the 2006 Pakistan Act to Protect Women ("Protection of Women (Criminal Laws Amendment) Act, 2006") to the Hudood Regulation. The law for the protection of women passed by the Pakistani National Assembly in December 2006 did not repeal the Zina regulation (Zina stands for illegitimate sexual intercourse, the Zina regulation is part of the Hudood regulations, note ACCORD) and thus does not meet the requirements of the Human rights organizations that have consistently advocated a complete repeal. However, it goes a long way towards eliminating the many injustices and hardships caused by the old Zina regulation.

The law for the protection of women is based on three core elements. The first element brings a number of offenses from the Zina Regulation back into the jurisdiction of the Pakistani Penal Code, which included them before 1979. The second element redefines the offenses of Zina and Qazf, the unlawful accusation of Zina. The third element creates an entirely new method of prosecuting the offenses of adultery and fornication. Regarding the change in the definition of Zina criminal offenses, that is, consensual extra-marital sex (adultery or fornication), Professor Lau states that the Act to Protect Women added a new offense, fornication, to the Pakistani Penal Code of 1860. It is likely that the creation of this new criminal offense was a concession to conservative sections of Pakistani society. However, the offense of fornication is accompanied by protection against abuse, since section 496C of the Pakistani Penal Code creates the new offense of the false accusation of fornication. According to this section, a person who has falsely alleged fornication against a person will be punished with a prison sentence of up to five years and a fine of up to 10,000 rupees. It is essential here that as soon as the prosecution of an indictment of fornication has led to an acquittal, a judge can try to convict the unsuccessful applicant in precisely this procedure. It concluded that anyone who accused someone else of fornication would risk a long sentence if that complaint did not result in conviction. Although there is still no reported case law on this provision, Professor Lau assumed in 2007 that the number of allegations of Zina in the form of fornication would decrease sharply:

"In December 2006, Pakistan's National Assembly finally passed the Protection of Women (Criminal Laws Amendment) Act, 2006. The Act does not repeal the Zina Ordinance, and therefore falls short of the demands of the human rights community, who had consistently campaigned for a total repeal, but does much to address the many injustices and hardships caused by the old Zina Ordinance. " (Lau, 2017, pp. 1306-1307)

"The Protection of Women (Criminal Laws Amendment) Act, 2006, is structured around three elements. The first element returns a number of offenses from the Zina Ordinance to the Pakistan Penal Code, where they had been prior to 1979. The second element reformulates and redefines the offenses of zina and qazf, the wrongful accusation of zina. The third element creates an entirely new set of procedures governing the prosecution of the offenses of adultery and fornication. " (Lau, 2017, p. 1308)

"The second element restructures the offenses of zina (i.e. consensual extra marital sexual intercourse, either as adultery, if one of the parties is married, or as fornication, if they are not). The Protection of Women (Criminal Laws Amendment) Act, 2006, inserts into the Pakistan Penal Code of 1860 a new criminal offense of fornication, defined as' [a] man and a woman not married to each other [who] willfully have sexual intercourse with one another. 'This crime is punishable by imprisonment of up to five years and a fine not exceeding 10,000 rupees. It is likely that the creation of a new offense of fornication was a concession to conservative sections of Pakistani society. The offense of fornication is, however, accompanied by a safeguard against abuse. Section 496C of the Pakistan Penal Code creates the new offense of false accusation of fornication: 'Whoever brings or levels or gives evidence of false charge of fornication against any person, shall be punished with imprisonment for a term which may extend to five years and shall Also be liable to fine not exceeding ten thousand rupees. 'Significantly, once the prosecution of a charge of fornication has resulted in an acquittal, the trial judge can try to sentence the unsuccessful complainant in the very same proceedings. It follows that any person who accuses someone else of fornication risks a lengthy prison sentence if his complaint does not result in a conviction. While there has been as yet no reported case law on this provision, it is nevertheless reasonable to assume that the number of accusations of zina in the form of fornication will drop sharply. " (Lau, 2007, p. 1309)

The US Department of State (USDOS) mentions in its annual human rights report from March 2019 (reporting period 2018) that an 18-year-old girl and her 21-year-old boyfriend were beheaded by the girl's father and uncle in September 2018 . This incident was described in the media as an honor killing. The police have arrested both suspects. There have also been reports that the practice of cutting off a woman's nose or ears in connection with so-called honor crimes continued to exist. This rarely had legal consequences:

"In September, an 18-year-old girl and her 21-year-old boyfriend were beheaded by the girl’s father and uncle in what media reports described as an honor killing. Police arrested both suspects and registered a murder case against them.

There were reports that the practice of cutting off a woman’s nose or ears, especially in connection with so-called honor crimes, continued and legal repercussions were rare. " (USDOS, March 13, 2019, Section 6)

In November 2018, the German international broadcaster Deutsche Welle (DW) reported on honor killings in Pakistan. According to the report, around 700 women were killed in honor killings in 2017. However, that number only includes the reported cases, according to Zohra Yusuf, former chairwoman of Pakistan's Human Rights Commission of Pakistan (HRCP). According to human rights activists, it is difficult to determine the exact number of honor killings victims. Most of these cases go unreported and in some cases the police do not arrange an autopsy, making it easier for the family to pass the murder off as a "natural death." Feudal orthodoxy and conservative norms have deep roots in Pakistan. Men would want to control women, would treat them as their "property" and not give them freedom, Yusuf said. In Pakistan, it is not just individuals who commit honor killings; Tribal courts would also sentence women to death if they dishonor their family or tribe, says Yusuf:

"‘ Some 700 women were killed in the name of 'honor' in 2017. These are only the reported cases, ‘Zohra Yusuf, the former chairperson of the non-governmental Human Rights Commission of Pakistan (HRCP), told DW.

Rights activists say it is difficult to determine the exact number of ’honor killing victims. Most of these cases go unreported, and in some cases, police do not allow an autopsy, thus making it easier for the family to pass it off as a ’natural death.’

'Feudal orthodoxy and conservative norms have deep roots in Pakistan. Men want to control women and they treat them as their 'property.' They don't allow any freedom to women, ‘Yusuf explained, adding that other countries in the region, like Afghanistan and India, face a similar problem.

’In Pakistan, it is not only individuals that commit 'honor killings;' even tribal courts sentence women to death for 'dishonoring' a family or a tribe, ’Yusuf added." (DW, November 19, 2018)

The international human rights organization Human Rights Watch (HRW) wrote in an article from September 2017 that a man in Peshawar killed his two daughters because he believed they were in a relationship. This was the most recent incident in a series of honor killings in September 2017. In a patriarchal culture like Pakistani, where domestic violence is rampant, it is not uncommon for men to murder female relatives to punish behavior they consider unacceptable. In most of the reported cases, the harshest punishments for “defamation” were pronounced by male-dominated jirgas, tribal and village councils. In August 2017, a 15-year-old and a 17-year-old were electrocuted by family members on the orders of a tribal council in Karachi. The tribal council ruled that the young couple's decision to run away had violated their honor. In October 2016, parliament passed the anti-honor killing law after the murder of Qandeel Baloch, a Pakistani model, by her brother sparked public protests. The new law provided for harsher sentences and closed a legal loophole that would have allowed the victim's family to pardon the perpetrators, who would normally also be family members. The recent wave of honor killings shows that harsher sentences do not automatically lead to more justice for women:

"On September 20, a man in Peshawar killed his two daughters because he thought they had boyfriends, and felt ashamed’ - the latest in a series of recent horrific acts of violence perpetrated in the name of ‘honor.’

In a patriarchal culture like Pakistan’s, where domestic violence is rampant, it is not unusual for men to murder female relatives to punish behavior they deem unacceptable. In most reported cases, the harshest punishments on grounds of ’honor‘ come from male-dominated jirgas, tribal and village councils. [...]

In August, Bahkt Jan, 15, and Ghani Rehman, 17, were killed with electric shocks by family members on the order of a tribal council in Karachi which ruled that the young couple decision to elope violated ‘honor.’ [...]

In October 2016, following public protests after Qandeel Baloch, a Pakistani model, was killed by her brother, parliament passed an anti-honor killing law. The new law, which followed an Academy Award-winning documentary about her murder, included harsher punishments and partially closed a loophole allowing legal heirs to pardon perpetrators who are usually also a relative.

The recent spate in ‘honor’ killings demonstrates that harsher punishments do not automatically translate into justice for women. " (HRW, September 25, 2017)

The Human Rights Commission of Pakistan (HRCP), a nationwide non-governmental organization in Pakistan that tries to promote human rights and prevent their violation, published its annual report for 2018 in March 2019. In the chapter on the situation of women in Pakistan, the report cited that there were cases in 2018 in which fathers murdered their daughters because they had asked for more autonomy in choosing their spouse. 16-year-old Sara was gunned down by her father and uncle in Gujranwala in November 2018 when she asked for a wedding with someone of her choice. The case of Sana Cheema, an Italian national, made headlines around the world in April 2018. Her family in Gujrat stated that she died of an unspecified illness. Her body was exhumed after an Italian medium reported that she was murdered for defamation. The autopsy report revealed that she was strangled and that her father and brother confessed to the murder. Women who chose their partners themselves or who tried to do so were imprisoned, beaten and critically injured by their fathers and brothers:

"Fathers killed their daughters for wishing to exercise greater autonomy in spousal choice. Sixteen-year-old Sara was gunned down by her father and uncle in Gujranwala in November when she asked to marry someone of her choice. The case of Sana Cheema, an Italian national, made headlines across the world in April. Her family in Gujrat said she had died from an unspecified illness. Her body was exhumed after an Italian publication reported that she had been murdered for honor ’. An autopsy report revealed that she had been strangled to death and the police said her father and brother had confessed to her killing.

[...] Women who exercised or attempted to exercise their own choice in partners were subjected to confinement, beatings, and life-ending violence by fathers and brothers. " (HRCP, March 2019, pp. 179-180)

In an article published in May 2019, the British newspaper The Guardian also devotes itself to the subject of honor killing in Pakistan:

In a slightly older report by Deutsche Welle (DW) from April 2014, it is stated that in Pakistan, a predominantly Muslim and conservative country, premarital relationships are strictly forbidden and also frowned upon by society. There is probably no greater taboo than having an illegitimate child. According to Islamic law, it is a criminal offense and those who commit fornication could be sentenced to death. Sometimes relatives of such a couple would commit vigilante justice. Most of the time, only the mother and child would be murdered in such cases. However, despite social taboos and strict laws, many Pakistani men and women would continue to enter into extramarital relationships and have sex before marriage. A nurse in a maternity hospital told DW that Pakistan was also living in a modern world. Girls and boys would own cell phones and watch Western movies. They are rebellious and do what they want. The family does not find out about a premarital relationship until the girl is pregnant:

"Pakistan is a majority-Muslim nation with a population of over 180 million people.Pre-marital relations are strictly prohibited in the conservative country and are also frowned upon by society. There is probably no bigger taboo than having a child out of Wedlock. According to Islamic laws, it is a punishable crime and the people committing fornication could be sentenced to death. At times, the relatives of the couple take the law in their hands and kill the adulterers. Most of the times, only the mother and the child are murdered.

However, despite social taboos and harsh laws, many Pakistani men and women continue to engage in extramarital relationships and have sex before marriage.

‘We live in a modern world. Our girls and boys keep cellular phones and watch Western movies. They are rebellious and do whatever they like. The family only gets to know about an affair when the girl gets pregnant, ’Zulfikar said." (DW, April 22, 2014)

The English-language Indian daily Indian Express reported in July 2016 on Zahra Haider, a Pakistani writer living in Canada, who wrote an article for VICE magazine entitled "What I Learned Having Sex As A Young Woman In Pakistan". The article was not well received by many on social media, and the author is facing a huge backlash. In her article, Haider writes about the sexual culture in the Islamic Republic of Pakistan, where even talking about the subject is taboo. Premarital sex is considered a criminal offense and is associated with family honor. Men would generally not be condemned for this in this patriarchal society, but if a woman from a middle-class family or from socially disadvantaged backgrounds were caught having sex before marriage, it would be very serious for her. Many Twitter users reacted very insultingly to the article and insulted the author:

"Canada-based Pakistani writer Zahra Haider wrote an article for VICE titled‘ What I Learned Having Sex As A Young Woman In Pakistan ’hasn’t gone down well with many on social media, and the author is now facing voluminous backlash for it.

Her article talks about sex culture in the Islamic republic, where even talking about the subject is taboo; pre-marital sex is considered punishable and is associated with honor of the family. ‘Men generally aren’t judged for it in our patriarchal society but if a woman from a middle-class family or underprivileged background is caught having premarital sex, serious shit goes down,’ she writes.

Reflective of the mindset of the particular set of people she is talking about, many on Twitter have gone to the shameful extent of asking her ‘rate’. Some take it as the woman’s effort to demean the country whose ‘men couldn’t satisfy her’, she is name-called and some see her article as a sign of ‘Qayamat’. " (Indian Express, July 22, 2016)

The article by Zahra Haider, which was published in Vice magazine in April 2016, can be accessed via the following link:

In May 2016, the English-language Indian daily newspaper The Times of India conducted an interview with the author Zahra Haider mentioned in the previous quote. It mentions that parts of the criticism that Haider's article had received related to the fact that her statements about premarital sex in Pakistan could only be applied to the Pakistani elite and misrepresent the nation:

"How are you dealing with criticisms of being from Pakistan’s‘ elite ’and misrepresenting the nation?

As i mentioned in my article, i grew up within the elite, so i would possess more knowledge on that society. These were my personal opinions. Accusing me of falsely representing an entire country is rather illogical. I am not an entire country - nor can I possibly represent every single Pakistani in Pakistan. "(The Times of India, May 11, 2016)

 

Swell: (Access to all sources on July 2, 2019)

  • DW - Deutsche Welle: Illegitimate newborns murdered and discarded, April 22, 2014
    https://www.dw.com/en/illegitimate-newborns-murdered-and-discarded/a-17582853
  • DW - Deutsche Welle: A daughter killed by her family - a story of love and 'honor', November 19, 2018
    https://www.dw.com/en/a-daughter-killed-by-her-family-a-story-of-love-and-honor/a-46362212
  • FT - Financial Times: Women bear the brunt of Pakistan’s obsession with dishonor, July 22, 2016
    https://www.ft.com/content/b1216552-4fe8-11e6-8172-e39ecd3b86fc
  • HRCP - Human Rights Commission of Pakistan: State of Human Rights in 2018, March 2019
    http://hrcp-web.org/publication/wp-content/uploads/2019/04/State-of-Human-Rights-in-2018-English.pdf
  • HRW - Human Rights Watch: Honor Killings Continue in Pakistan Despite New Law, September 25, 2017
    https://www.hrw.org/news/2017/09/25/honor-killings-continue-pakistan-despite-new-law
  • Indian Express: Pakistani writer faces social media backlash for article on country’s ‘sex culture’, July 22, 2016
    https://indianexpress.com/article/trending/trending-globally/pakistani-writer-faces-social-media-backlash-for-article-on-countrys-sex-culture-2785725/
  • Lau, Martin: Twenty-Five Years of Hudood Ordinances - A Review. In: Washington and Lee Law Review, Vol. 64 (4), 2007, pp. 1291-1314
    https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?referer=https://scholar.google.at/&httpsredir=1&article=1207&context=wlulr
  • The Guardian: Pakistan authorities record a dozen cases of 'honor' killing in a fortnight, May 17, 2019
    https://www.theguardian.com/global-development/2019/may/17/pakistan-authorities-record-a-dozen-cases-of-honour-killing-in-a-fortnight
  • The Pakistan Penal Code 1860, including amendments until February 16, 2017
    http://www.pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-apk%3D-sg-jjjjjjjjjjjjjj
  • The Times of India: What's wrong with being sexually free? South Asian sexual hypocrisy only causes violence: Zahra Haider, May 11, 2016
    https://timesofindia.indiatimes.com/blogs/the-interviews-blog/whats-wrong-with-being-sexually-free-south-asian-sexual-hypocrisy-only-causes-violence/
  • USDOS - US Department of State: Country Report on Human Rights Practices 2018 - Pakistan, March 13, 2019
    https://www.ecoi.net/de/dokument/2004212.html
  • Vice: What I Learned Having Sex as a Young Woman in Pakistan, April 26, 2016 (Author: Zahra Haider)
    https://www.vice.com/en_us/article/3bj3en/what-i-learned-having-sex-as-a-young-woman-in-pakistan