Case Of Shahzima Tariq
And Shamial Raj On Entering Into "Same Sex" Marriage
By Nighat Majid
31 May, 2007
In September 2006 Shahzima Tariq
and Shamial Raj got married in a medium large city, Faisalabad,in the
Punjab, Pakistan. Both of them knew each other since they are cousins.
Since they were mutually committed to each other and determined to spend
their lives together they decided to strengthen this commitment by framing
it within a marital bond. This was to them the most ‘natural’
thing to do. This decision was also precipitated by Shahzima’s
father Tariq Hussain since he was determined to marry Shahazina to someone
he owed considerable money to.
Despite the marriage, or because of it, Tariq Hussain and the rest of
Shahzima’s family continued to harass them and filed several charges
against Shamial Raj for kidnapping his daughter and for a number of
offences such as fraud. The two of them then approached a lower court
in Faisalabad to prevent such harassment. The lower court decided in
their favour since they produced their marriage certificate and because
both of them were adults. The family continued to harass them to a point
where they thought that their lives might be at stake.
Shahzima and Shamial then came to Lahore and found a lawyer, Rana Sajjad
Hussain, Advocate High Court, to file a writ petition on their behalf
to the High Court to put a stop to such harassment. The case was put
before the Kh..Mohammad Sharif Judge of the High Court and the first
hearing was set for the 3rd of May 2007. On the 4th of May the father
of Shahzima appeared before the Court and gave testimony that Shamial
was actually a woman. Shahzima and Shamial did not come to this hearing
“because”, their counsel submitted, “they had been
threatened the previous night and thought they may be murdered if they
appeared in court”. The Judge ordered a physical examination to
be done by a five member medical team at the government Services Hospital.
The report was to be submitted on the 8th of May.
The medical team reported that while Shamial “ is a well built
muscular person with moustache and beard and has a hoarse voice”
that physically he is a woman. They did however propose additional tests.
This report changed the nature of the writ application turning the complainants
into defendants. Frightened the two went into hiding. When they didn’t
appear on the 9th the Judge ordered the police to arrest them on the
grounds that Shamial had stated in Court that he “was a boy”
but that the medical examination had proved that he was “a girl”
and that therefore he has sworn a wrong affidavit. Further that during
his physical examination and later in Court Shamial has admitted that
he was a woman. The Court gave notice under Section 193 of the Pakistan
Penal Code (perjury) for both Shamial and Shahzina to show cause as
to why they should not be prosecuted under this section.
As Shamial tells his story he was born a female but that within himself
he knew himself as a man. He has told the doctors, the Court, his lawyers
and myself that in his mind and his heart he is a woman trapped in a
woman’s body. He always felt this way and when at the age of 15
he started developing breasts (as he also started growing a beard) he
felt that his life thus far had been spent as a man that he would get
a mastectomy. This he had done in Faisalabad by a medical team supported
by a psychologist. In 2006 he decided also to have a hysterectomy.
Later that year Shamial and Shahzina got married. Shahzina knew as Shamial
says that his is a “transsexual” but both decided that their
love and support for each other transcended this. They just wanted to
be together. They still want to be together even, as they say, “together
in the same jail cell”. Any separation is for them “a death”
and they would sooner die than be torn apart.
Shahzima and Shamial ‘disappeard’ after the Court order
on the 9th of May. Having missed two hearing of the High Court the Judge
issued non-bailable arrest warrants for them. They were arrested by
the police soon after and Shamial was interned in the Kot Lakpath jail
in Lahore while Shahzina was sent to the Central jail in Faisalabad
the city in which her parent live. They were produced in Court on the
22nd of May. The Judge asked them to show cause why they should not
be charged under PPC193 (perjury) and section 377 (unnatural offences).
The Court directed them to do this by the 25th of May. Since their lawyer
Mr. Rana Sajjad Hussain, was not allowed by the jail authorities to
meet with them he requested the Court to enforce his clients’
rights to counsel and asked for further time in which he could consult
with them. The Court gave him until the 28th of May.
Under section 193 of the PPC (which gives a sentence of up to 7 years)
the charges are framed and decided immediately. Charges for section
377 of the PPC, goes for trial. At no point have they been charged or
tried for ‘lesbianism’ and nor for their marriage. The law
in Pakistan is silent on such relationships and defines no penalties.
Islam I am informed while implicitly not sanctioning relationships that
are not clearly heterosexual also does not prescribe any penalties.
The nikah, or marriage contract in Islam is also a civil contract, that
and be withdrawn or annulled by the parties in contract with each other.
On the 28th of May the Court decided that there was insufficient evidence
to charge Shahzima and Shamial under section 377 (unnatural offences)
and while there were mitigation circumstances under which perjury was
committed it would still give (a lesser) sentence on that charge. They
were given 3 years each. Shahzima is to be interned in the Central Jail
Faisalabad and Shamial in Kot Lakpath jail Lahore. The Court has also
ordered that Shamial be examined by a psychiatrist in a private hospital
where he is to stay for 4 days.
Shahzima and Shamial will appeal the decision either in an inter court
appeal or to the Supreme Court. They will do this as soon as we who
are assisting them can give reasonable advice as to which court we suggest
they go to. They are of course at a complete loss and stunned with what
has happened and the speed at which it has happened. From filing a writ
petition on the 3rd of May against them being harassed by Shahzima’s
father they find themselves sentence to jail for three years within
This case highlights the question of gender identity. Shamial insists
that he is a man and Shahzima believes that he is one. That he said
under medical examination and in court on one occasion that he is a
woman is because as he says that he himself got confused as to what
to say under medical examination and because everyone around him confused
him. The doctors’ report also mentions him as both a ‘she’
and a ‘he’, and the court orders lists him as’he/she’
or ‘she/he’. The media in Pakistan has also sensationalized
his gender identity and has repeatedly written of this as a “she
couple” or “she marriage”. The media questions to
him in this vein has as he says only added to his confusion on what
The Judge referred to this a precedent case as indeed it would be in
most parts of the world and most people including lawyers have tried
to keep their distance with the exception of their lawyer Mr. Rana Sajjad
Hussain who has maintained their right to a fair trial. However since
it is now such a high profile case and since the law is silent on this
issue of late several lawyers have offered assistance. The last Court
hearing on the 28th of May was argued by Mr. Zahid Husain Bokhari an
advocate of the Supreme Court. Both Rana Sajjad Hussain who has been
with them as their lawyer form the beginning and Zahid Husain Bokhari
have assisted pro bono as will those who will be appearing in the Supreme
Court. Expenses are still nevertheless high but so far I have been able
to withstand it these. Unfortunately human and women’s rights
groups have also been silent on the issue as have the ‘liberal/progressive’
intelligentsia, and no feminist lawyers been willing to assist with
the case on behalf of Shahzima and Shamial.
Shamail himself is very clear of his gender identity as is Shahzima.
“His soul” as he says “ is male” and that is
the only gender he can be no matter how the law and society see him.
“It is just that I am imprisoned in the wrong body”. The
question for them is how they are to convince a court that their conflicting
testimony was not intentional. At the same time both are anxious that
Shahzima’s father who has unlimited access to her in Faisalabad
jail, will continue to try and pressure or hoodwink Shahzina into making
a statement against Shamial. Shahzima continues to say in Court, to
the press, to her legal council and to me that she is with Shamail because
she loves him and that she cannot live without him. He insists that
he cannot live without her. Their commitment to each other in the face
of extreme adversity and temptation to take the easy way out should
stand as a example of courage for those of us who uphold the right for
anyone to live their lives according to their own inclinations and their
own sense of being. Shahzima and Shamial need to be heard. They need
to be supported and they need to know that they are supported. It is
their only sustenance in their respective aloneness. Even if they win
the battle in court as they and those of us supporting them hope, they
will still need our commitment to ensure that their future is safe and
that they can live out their commitment to each other.
You can send your support to Shahzina and Shamial and any information
that may assist in their appeal (relevant to confusions that may arise
in the face of adversity in the lives of transgender or multiple gender
identities) through me at;
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