Pakistan - The Case of Noreen Aslam

(Photo is Shumail Raj on left and Shahzina Tariq on right).

In December 1973, the district appeal court (the Oberlandesgericht) of Hamm in Germany considered the case of a German male who had married a female from Pakistan. The woman, a male to female transsexual, had her gender reassignment recognised by Pakistan, and Pakistan also recognised her subsequent right to marry.

Move forward to May 2007, and a case in the Lahore High Court in Pakistan that exploded in the media.

Shumail Raj and Shahzina Tariq had applied to the court to prevent Shahzina being married off by her family, allegedly to pay for an uncle’s gambling debts.

Shumail and Shahzina petitioned the courts on the basis that they were legally married, as husband and wife.

The family counterclaimed that they could not be married, as Shumail was a female-to-male transsexual, and it was illegal for two women to marry.

It transpired that Shumail had undergone a sex-change operation some 16 years earlier.

Shumail was examined by a court appointed doctor, found to lack male genitals and so was deemed to be female.

The Times of India reported the issue as follows –

The role of religion, a dominant question in Pakistan in any situation, is a matter of debate in what is being claimed as the first case in the country. Leaders of the two principal Muslim sects differ while disapproving of the marriage.

Shia cleric Allama Syed Abbas Sherazi says: “It depends on the courts to give punishment to such people according to the circumstances to save the society from distraction. In Shia sect the same-sex marriage is considered ‘haram’. The clerics in their Friday prayer sermons should educate the nation about the curse of same sex marriages and obscenity.”

But his Sunni counterpart, Maulana Hanif Jalandhari, said: “The court can give the couple a capital punishment, a lifetime imprisonment or a fine.”

"The media is spreading vulgarity in Pakistan. The parents should force their children to say their prayers. The clerics should educate Muslims about the conspiracy of the anti-Islamic forces," said Jalandhari.

Zahid Hussain Bokhari, a retired judge, said: “There is no law in Pakistan to stop two women from living together. It is against the basic human rights to interfere in their personal matters. The 'nikahnama' (marriage contract) procured by Shumail Raj and Shahzina has no importance. They should not be dealt as married.”

S.M. Masud, a former law minister, says the case should be handled in the light of Islam, as there is no provision in Pakistani law.

"If the husband cannot perform sex, the law gives this right to the wife to get a divorce. Shumail looks like a man, but if "she" cannot perform sex, "her" wife Shahzina has the right to get divorced."

"The couple has not committed any offence, as penetration is essential for imposition of the Section 377 of the Pakistan Panel Code (PCC). Fatwas issued in the past should also be consulted in this case.”

Section 377 is ‘indecent conduct’, and the absence of male genitals indeed meant the couple could not be found guilty of this under Pakistani law.

However, the judge at the hearing in Lahore decided that both Shumail and Shahzina had lied in their depositions to the court that Shumail was male, and so sentenced them each to 3 years jail, plus a fine. The judge also ordered that action should be taken against the doctors who had carried out Shumail’s surgery.

The couple were sent to jail in separate locations, both in women’s institutions.

Shortly afterwards the couple were freed on bail as they appealed their sentence. Then a declaration of martial law in 2007 led to the removal of the judge, and it seems no appeal has been heard yet. (June 2009).

But in April 2008, Noreen Aslam from Faisalabad petitioned the High Court in Lahore to undergo female-to-male SRS.

The assistant director general for health in Islamabad testified that he concurred with a diagnosis of GID and that medical authorities had no objection in this case. Noreen’s counsel stated that a surgeon had agreed to carry out the operation, but then refused after the Raj case hit the media. Counsel noted that the judge had not said such operations were banned, thus clearance should be given.

Justice Muhammad Ahsan Bhoon of the High Court of Lahore agreed and gave permission to proceed.