Pakistan : Constitutional Petition No. 16 of 2004

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There existed in Pakistan the custom of swara, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.

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