Law and Marriage in the Asian and Islamic Cultures - Essay Example

? The family has been the cornerstone of human society since time immemorial. This fundamental social has always been built on marriage. However, the rigors of the modern age have taken its toll on marriages and have resulted to dire consequences on the family. After all “Marriage can be defined as a socially approved union between unrelated parties that give rise to new families” (Hunter, 1991). In particular “Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others” (SH v. KH, 2005). This is the universal and perhaps most comprehensive characterization of marriage. Among the most controversial aspects of this is the element of consent. This is encapsulated in the concept of contract. In a contract consent that is not tainted by force or coercion is essential to its validity. Consequently it is also a major of controversy for marriage. This is compounded by the fact that marriages as a social phenomena are diverse and multi faceted. The forces governing present society in the present have imposed significant challenges upon marriage. These adverse forces have given rise to a wide array of problems. Government today struggle tot to protect and uphold family and marriages by finding means to deal with the various problems that undermine them. This also challenges the state to uphold society’s many concepts of marriage while also containing negative elements attributed to it. Furthermore it has to strike the balance between its power to regulate society, society’s right to culture and the welfare of its citizens. This is not a mundane task given the complexity involved and the magnitude of the harms involved society today. Among the malign realities faced by society today are “forced marriages.” This kind of marriage “is a marriage conducted without the valid consent of both parties, where duress is a factor. Duress can range from emotional pressure from family members, to threatening behaviour, abduction or imprisonment, and physical violence” (National Society for the Prevention of Cruelty to Children, 2008). In Great Britain alone the “Government’s Forced Marriage Unit, which handles approximately 5,000 enquiries and 300 cases per year concerning young British nationals at risk of being forced into marriage overseas, believes that forced marriage is another issue that remains vastly under-reported” (House of Commons Home Affairs Committee, 2008). This fact only establishes further the gravity of this problem. Not only that but this also significant prove that consent is a highly disputed aspect of marriage. Marriage in the Asian and Islamic cultures is heavily influenced by deeply rooted and long standing traditions. Religion and cultural values are integrated to form the notion of marriage. More importantly these form part of the norms of society. This has entrenched them and ensured their survival to the modern times. Among this practise is forced marriage. Given this socio – historical context forced marriages are not an issue for certain communities and have even proliferated (Muslim Arbitrational Tribunal, n.d.). This provides the socio – cultural roots of forced marriage. Forced marriage proliferates under in certain sectors of society whose cultural beliefs and practices provide the basis for it. It is also in these segments of the community that these are commonly practiced. In these conditions the concept of choice and is subservient to the values an traditions of a certain culture. “The motivations for forced marriages are complex and care must be taken to avoid over-generalisations. However, they do seem to fall broadly into three categories and the category that is perhaps the most common is where young men and women are found to be involved in a liaison which their families disapprove of. Irrespective of people’s motivations the two issues that are related to forced marriages are (a) the role of relatives and (b) the location and safety of the victims. It is quite difficult to find where victims are being held and to bring them to a safe location for repatriation” (Samad and Eade, n.d.). These marriages are a distortion of the essence of marriage. By nature “Marriage is and ought to be a voluntary union” (Poulter, 1979). Moreover, it “is the voluntary union for life of one man and one woman, to the exclusion of all others” (Hyde v. Hyde and Woodmansee, 1866). This means that joining of two individuals is built on consent that is not tainted by coercion or any other means, which vitiate it. This further implies that consent is essential in a marriage. The absence of it denotes an infirmity in its establishment. This would make forced marriages a direct contradiction of what marriage is. This is based on the idea that “the essential requirement of a valid marriage is that the parties voluntarily exchange true and present consent to become husband and wife” (SH v. KH, 2005). This means that marriage is built on consent freely given. This means that it is not procured by force, fraud, intimidation or other coercive means. It also has to be noted that marriages are not a mere relationship between individuals. It is one, which is impressed with a public interest. This means that it is a concern of the state and government. It is therefore, regulated, protected and is covered by policy and legislation. Forced marriages, being an issue of marriage, is the concern of the state. This concern was manifested with the adoption of legislation covering this social practice. To curb unwanted social practice, particularly those that are damaging to the welfare of the society, the state often employs legislation in its exercise of the power to regulate its citizens. The legislation is on forced marriages is a product of this nature of the state. It exists as response to the malign activities involved in forced marriages. Moreover forced marriages, in a way offends the idea of a libertarian society that favours choice and free will as part of its highest values. This new law is “the first to specifically target the problem of forced marriages” (British Broadcasting Company, 2008). This law exists “to protect victims of forced marriages has been welcomed by charities campaigning to eradicate the practice” (PRLog Free Press Release, 2008). Moreover, this is a “legislation aimed at protecting the victims of forced marriages and preventing them from taking place” (Ministry of Justice, 2007). “Under the Forced Marriage (Civil Protection) Act, where a forced marriage has or is about to take place, courts will be able to make orders to protect the victim or the potential victim and help remove them from that situation” (Ministry of Justice, 2007). In particular it “will enable victims and third parties to seek an injunction to prevent a forced marriage and put forced marriage guidelines (for police, education, health and social services professionals) on a statutory footing (House of Commons Home Affairs Committee, 2008). What will be central to subsequent discussions is whether the forced marriage legislation paves the way for a gendered and multi-cultural response to intimate violence and how? This entails exploring “forced marriage,” intimate violence and how the legislation covering the former deals with the latter as well. Aside from this is the response of the said law gender oriented and multi – culturally sensitive? To attain a better exposition it is first essential to explore what is intimate violence. This brand of violence is better known as “Intimate partner violence” and this “term used to describe violence between two people who are in a close relationship. The violence can be physical. It can also be verbal or emotional (University of Pittsburgh Medical Center, 2006). Furthermore it is not essential that you be in a marriage to be exposed to intimate partner violence (University of Pittsburgh Medical Center, 2006). This means that intimate violence can occur during a marriage as well as even prior to its celebration. This also reinforces the idea that intimate violence is employed in preparation for forced marriages. This kind of violence occurs most commonly in connection to forced marriages. In a comment about the forced marriage law, it was said that “it will now become easier to protect vulnerable individuals from the emotional and physical abuse that goes hand-in-hand with forced marriages” (PRLog Free Press Release, 2008). This establishes a link between intimate violence and forced marriages. Furthermore is known to imposed and result to risks on children and the youth. There is the denial to education, physical abuse and emotional abuse as well as domestic violence. In extreme cases there are even “honour killings” which is nothing more than murder. In addition, those who seek to escape a forced marriage still face with other detriments that pervade harsh social realities such as abuse. Furthermore this kind of marriage is also a source of self inflicted injury and even suicide of those forced into it. (National Society for the Prevention of Cruelty to Children, 2008). This characterizes and outlines the kinds of detriment directly as well as indirectly come from forced marriages. More importantly this establishes the relationship of intimate violence and forced marriages. The latter is a consequence of the former akin to a cause and is also attendant upon a forced marriage. "It is acknowledged that domestic violence and abuse can also manifest itself through the actions of immediate and extended family members through the perpetration of illegal activities, such as forced marriage, so-called ‘honour crime’ and female genital mutilation" (Crown Prosecution Service, 2008). These highlight two important considerations. First is that is that forced marriages result to intimate violence. Second that it is done most often against females and by males. This is reinforced by the findings that:” in 35 cases of forced marriage and/or so-called ‘honour’ crime were identified during the nine month pilot period... All defendants in the pilot were male” and “...where there was one victim and one defendant their relationship was mostly spouse/ex-spouse” (Crown Prosecution Service, 2008). This data clearly shows the relationship of intimate violence to forced marriages. Moreover, this highlights that acts of harm are done upon women or female children more commonly than any other gender. This implies that in most instances of intimate violence, especially those that stem from forced marriages are against women and girls. Furthermore, the cause of this harm is often cultural. This is supported by the fact that “specific cultural practices that harm women, including female genital mutilation, forced marriages, dowry attacks and so-called “honour” killings are all practices that may occur within the family setting” (World Medical Association, 2010). Even if the cultural element is factored out “in the case of forced marriages, women are in many cases voluntarily involved in acts of coercion and even violence due to the way they have been socialised” (Samad and Eade, n.d.). This means that the act of violence and the use of coercive means in a forced marriage becomes a institutionalize practice. This would also characterize forced marriage as a gender – oriented matter. This leads us to the foremost implication that forced marriages are gender issues that affect women and young girls. Not only that this is also a matter of their right and welfare. This is because forced marriages are identified as causes of intimate violence. Moreover, intimate violence also occurs in preparation for as well as during a forced marriage. The problem faced by the state is that while it protects marriage it is also burdened to protect and uphold cultural rights. This creates a difficult dichotomy of for the state since it has to respect cultural beliefs even those which are the basis for forced marriages. It has to strike the balance of protecting the welfare of women and children while also respecting the culture of certain sectors. On the social level, the experience and notion of family are not as clear cut as it may seem. “The norms, rules and expectations of romantic love and the family it creates are either simply understood as one follows one's heart, or they emanate from cultural understandings of how one behaves” (Diduck, 2003). This outlines the fact that the creation of a family is a matter of individual choice as well as a product of cultural orientation. This is a consideration that government must note. This is more controversial given that in modern society that values rights and free will any practice that undermines them cannot be allowed to persist. And the government is duty – bound to find means of resolving them if not completely removing them. After all government policies to be stable and have any bearing on the polity has to reflect to an extent the views of the polity. It has to balance the competing interests, rights and concerns that populate modern society. Does the forced marriage legislation do this? Does it protect women and children while not trampling on cultural rights? In delving into the intricacies of the said law it is clear that “while forced marriage is not itself made a criminal offence (in the same way that domestic violence is not), breach of an injunction would be a contempt of court and courts would have the full range of sanctions available to them, including imprisonment” (House of Commons Home Affairs Committee, 2008). Forced marriages as cultural practices cannot be illegalized but public policy may be re – engineered to cater to the needs of women and young girls who become the victim of forced marriage. In fact, the victims or interested third persons may go to court and get injunctions. These court injunctions will forbid families from actions such as taking people abroad for marriage, seizing passports or intimidating victims. Penalties for breaching an order include up to two years' imprisonment” (British Broadcasting Company, 2008). This establishes the legal basis proceeding against those who are about the force their children or other family member into a forced marriage particular the concomitant acts associated with it. Furthermore a forced marriage, although give rise to harms, cannot simply be treated as criminal. The likely origin of this stance is that the state recognizes the fact that In detail the forced marriage law states: “The court may make an order for the purposes of protecting—(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or (b) a person who has been forced into a marriage” (Forced Marriage (Civil Protection) Act 2007, sec. 1). This unambiguously empowers the courts to intervene is cases where a forced marriage is about to be or has been established between individuals. This is characterised as follows:” For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent” Forced Marriage (Civil Protection) Act 2007, sec. 4). In its intervention the court ,“In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected” (Civil Protection) Act 2007, sec. 2). This outlines the duty of the court to carefully consider the situation with emphasis on elements of welfare such as health and safety. Furthermore “In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding” (Civil Protection) Act 2007, sec. 3). This establishes the duty of the court to approach the matter through the perspective of the person involved. Several peculiarities can be implied by the text of the law. First and foremost it does not specify marriage in the socio – religious sense. This allows the law to be broad and encompassing. It also establishes the idea that the court will consider the situation of the person concerned as well as the circumstances involved. This is to enable the judiciary to deal with the matter in the most favourable and beneficial way. Conclusion In delving into the forced marriage legislation and its impact on intimate violence certain findings have been arrived at. It has been established that forced marriage runs counter to what a marriage is. This is because if the absence of consent in the former. The absence of consent is commonly due to the use of or incidence of violence or coercion in the creation of such marriage. The origins of this practice are from certain cultural beliefs that are entrenched and are persistent even today. This practice is treated as an offence against the rights and well – being of individuals, especially women and girls. They are the ones who are exposed the harms involved in forced marriages. These harms can range from mere coercion to domestic violence. Aside from this there is severe forfeiture of the rights of victims especially the right to freely marry. It has also been established that intimate violence which exists between family members or close social partners is also attendant in forced marriages. In fact, such marriages are created by intimate violence. They also put forward conditions that foster intimate violence. Furthermore, Intimate violence commonly occurs in cases of forced marriages. Government responds to forced marriages with the enactment of the “Forced Marriage (Civil Protection) Act 2007.” This piece of legislation enables the court to intervene to stop forced marriages. This law allows not only the victims but also interested third persons to go to the court and apply for injunctions for the same. This law also outlines how forced marriage occurs as well as the duty of the courts to safeguard the victims. Moreover, the courts have to consider the circumstances surrounding a case as well the concern of the persons involved. Furthermore, the law also institutionalizes penalty for violating orders of the court with regard to forced marriages. These penalties ensure that the law and its goal are attained under the pain of imprisonment. However, aside from all if these do the said law pave the way for a gender sensitive and cultural oriented response to intimate violence? Although the law does not directly mention that it exists to protect women it indirectly does. In the context of forced marriages a significant number of these occur where women are the victims. However, this does not discount the fact that forced marriages can cover men. However, the latter case is not as common. How does this establish a solution to intimate violence that is gender sensitive? It has to be noted that forced marriages are forms of and always involve a degree of that intimate violence. With the new law, the occurrence as well as the end goal of the violence is set aside by court order. The mere existence of violence surrounding a marriage compels the court to uphold the victim. These victims are often women. When they are sparred from a forced marriage via court order this is a viable response to intimate violence. Given that intimate violence is present as a precursor to as well as during a forced marriage. When the court issues an injunction commanding the cessation of activities that are related to a forced marriage the woman and young girls are spared from the coercion and violence they are exposed and will be exposed to. This also sends a message in society that forcing individuals into a marriage would merit legal consequence. This embodies the idea that women’s right to marry and be free from violence is upheld. Considering that forced marriages usually involved women and young girls. As to the question, whether the law establishes a response to intimate violence in a culturally sensitive way? Again the legislation is not direct but implied does. Note that since forced marriages are a matter of cultural practice the law does in no way illegalise such an act. This is a clear recognition that such practice is still valued by the state as part of the right to culture, especially of certain cultural segments of society. It, however, attempts to mitigate the violence that transpires in forced marriages. Some might contend that this is counter – intuitive since it does not attack the root of forced marriages. However, it strikes a balance between safeguarding the welfare of individuals like women and young girls without setting aside culture. It recognizes that culture is important as well as the well being of citizens. Furthermore, in the future when the culture behind forced marriages is no longer entrenched this law can still be amended to criminalise said marriage. What is pressing for the state to deal with as well as the source of controversy is not the idea of forced marriage. Rather it is the violence, coercion and atrocity done in connection with it. The forced marriage legislation does exactly. Its balanced nature empowers the state to safeguard the well – being of individuals without attacking the cultural basis of forced marriages. It instead limits the occurrence of intimate violence. These are the burden and adversity faced by modern governments. To protect and uphold human rights without transgressing gravely on cultures and traditions is difficult. It can be safely contended that the “Forced Marriage (Civil Protection) Act 2007” is a significant effort in that undertaking. National Society for the Prevention of Cruelty to Children (NSPCC), 2008. “NSPCC Policy Summary: Forced Marriage”. p. 2-3, Available at: [Accessed 6 January 2011]. Lord Penzance, 1866. “Hyde v. Hyde and Woodmansee,” 1866 March 20. p.1 Poulter, Sebastian, 1979. “Definition of Marriage in English Law.” The Modern Law Review Vol. 42 p. 408-429. Ministry of Justice, 2007. “New law to prevent forced marriage.” [online] Available at: < http://www.justice.gov.uk/news/newsrelease260707c.htm> [Accessed 6 January, 2010]. British Broadcasting Company, 2008. “New laws against forced marriages.” [online] Available at: < http://news.bbc.co.uk/2/hi/7747267.stm> [Accessed 6 January, 2010]. University of Pittsburgh Medical Center, 2006. “Intimate Partner Violence. “ p.1 Available at: < http://www.upmc.com/HealthAtoZ/patienteducation/Documents/IPViolence.pdf> [Accessed 6 January, 2010]. House of Commons Home Affairs Committee, 2008. “Domestic Violence, Forced Marriage and “Honour”-Based Violence: Sixth Report of Session 2007–08 Volume I.” p.18, p. 21, Available at: [Accessed 7 January, 2010]. Crown Prosecution Service, 2008. “CPS pilot on forced marriage and so-called ‘honour’ crime – findings.” p. 5, p. 7, Available at: < http://www.cps.gov.uk/publications/docs/findings_from_cps_pilot_on_forced_marriage.pdf> [Accessed 7 January 2011]. Muslim Arbitrational Tribunal, n.d. “Report – Liberation from Forced Marriages.” p. 5, Available at: [Accessed 7 January 2011]. World Medical Association, 2010. “WMA Resolution on Violence against Women and Girls.” Available at: [Accessed 7 January 2011]. Samad, Yunas and Eade, John, n.d. “Community Perceptions of Forced Marriage.” p. 73 – 74, p. 78, Available at: [Accessed 7 January 2011]. Hunter, Nan D., 1991. “Marriage, Law, and Gender: A Feminist Inquiry.” Law and Sexuality Vol. 1:9 p. 9-30. Lord Clarke, 2005, "SH v. KH." 13 October 2005. Diduck, Alison, 2003. “Law's Families.” Butterworths: London. p. 24 Forced Marriage (Civil Protection) Act 2007, http://www.legislation.gov.uk/ukpga/2007/20/section/1/wales. Read More