For nearly two months, there has been no news of Saman Abbas. Before disappearing, the 18-year-old Pakistani had rebelled against an arranged and forced marriage by her parents. The practice is illegal in Italy, but even Islamic law does not provide for it. “There, too, the law expressly states that a valid marriage cannot be concluded without the consent of the spouses, but the actual practice is different,” he explains. ilGiornale.it Paolo Efrati, lawyer, assistant professor of national and European regulations on immigration at the University of Rome Tor Vergata, and expert on Islamic law and Islamic countries.
What is forced marriage?
Forced marriage is one that takes place without the free consent of the parties involved, and forced consent represents the element of difference from other forms, i.e. arranged marriage and early marriage, and constitutes a serious violation of human rights. Universal Declaration of Human Rightsor establishes, in fact, thatMarriage can only be concluded with the free and full consent of the future spousesForced marriage constitutes an unacceptable violation of the fundamental rights and principles contained in Charter of Fundamental Rights of the European Union, In fact, the European Union is fighting this phenomenon within the limits of the powers granted to it by the treaties.”
When does the crime of forced marriage occur in Italy?
“In Italy, the offense is regulated by Article 558 bis of the Criminal Code, which punishes”Any person who forces a person, by violence or threat, into marriage or a civil unionBy violence we mean the physical energy that people exert directly or by means of an instrument. Instead, the possibility of an unjust and noteworthy evil, perhaps coming from the threatening person, is called a threat. Coercive methods do not include only violence or violence Threat in the strict sense, but also forms of psychological abuse. The purpose of this article is to protect marriage as the free consent of the parties, against forced marriage or by pressures that could be both physical and psychological.”
What is the penalty for violation? Are there aggravating circumstances?
The Penal Code stipulates that whoever commits the crime of forced marriage isIt is punishable by imprisonment from one to five years“. Furthermore it ‘The same penalty shall be applied to any person, who takes advantage of circumstances of weakness, psychological inferiority, or need of the person, while abusing family, domestic relations, work, or authority derived from the person’s custody for reasons of care, education, instruction, supervision or custody, leading to a marriage contract or Civil Liaison“. Aggravating circumstances are related to age, in fact the sentence is increased when it comes to a child under 18 and a child under 14: in the latter case there are between two and seven years in prison. This phenomenon assumes an international character, in fact, the rule is established Even when it is committed abroad by an Italian national, at the expense of an Italian national or a foreigner residing in Italy. All European legal systems that have introduced the crime of forced marriage have independently endorsed the premise of deportation abroad for this purpose.”
Is this a frequent practice in Italy?
Data on the prevalence of forced marriages in Italy and Europe are small. From the report One year of red law By the Ministry of Justice Affairs, with the contribution of the General Directorate of Statistics and Organizational Analysis of the Department of Judicial Organization, Personnel and Services and Dr. Rizzato and Cardona Albini, employees of the Council of Ministers, the crime of coercion or incitement to marry, as of July 31, 2020, there were no criminal proceedings that ended with a sentence before the investigating judge / Investigating Judge Department. In the same period, two criminal cases of coercion or incitement to marry were identified before the court at the hearing.”
Is there a difference between forced and arranged marriage?
“Yes, forced marriage is distinguished from arranged marriages, in which although the family plays a crucial role in the regulation and also in the choice of partner, the final decision is still left to the spouses, who remain free to express their own The boundaries between the two forms blur because the possible ways to coerce forced marriage take the form of a wide range of threats and violence, not only physical, but often psychological.Among these, for example, the weight of parental authority, economic or emotional demands, and victim-blaming for accepting the marriage “.
In traditional Islamic law, is coercion to marry a crime?
Forced marriage is not governed by the Qur’an and the father does not have the right to force the child to marry against his will, and there are no penalties for sons who do not obey their father in these situations. Guardianship, which is an authority that puts children in a state of dependence and allows the father the right to exercise marital coercion. The decision inherent in children rests solely with the father, the legal representative of the minor The classics, in any case must represent the woman, even if she is fully mature, because she cannot conclude the marriage contract personally. to pass They recognize the validity of the marriage entered into by the woman, but do not require the woman to express her consent. Regarding the law of individual countries, it is good to remember that in 1993 Morocco abolished the last reference to the legality of forced marriage, in certain circumstances, and oftentimes laws explicitly address the issue of consent, prohibiting coercion and providing remedies in the event of a wife being forced into marriage. Iraq’s 1978 amendment to its law of 1959 is one of the clearest and most detailed amendments in this regard, as it specified in three separate paragraphs the prohibition of forcing a person to marry and the criminal penalties to which those who do so are subject. The Algerian law of 1984 also explicitly prohibits the guardian (guardian) from forcing his protector to marry or marry him without his consent. In 2005, the Grand Mufti of Saudi Arabia, where there is no national legalization, declared it illegal for fathers to force their daughters into unwanted marriages. Finally, there are also in Pakistan a series of laws dealing with the issue of forced marriage.”
Simon, the girl who disappeared last month, refused to marry. Can this behavior in Islamic law be a source of punishment?
“In an organized marriage, there is no obligation for a daughter to marry. However, if the father forces her to marry and the latter refuses, it is difficult to prove the woman’s disapproval. As mentioned earlier, in Islamic law there is traditionally the father not having the right to force his daughters into marriage and there are no penalties for Who rebel against the father.But in Pakistan there have been cases of forced marriage, given the strong presence of the patriarchal system and the strong.And the father’s most decisive guardianship over the sons, which is primarily related to the social context.Therefore, even if the law expressly stipulates that it cannot be contracted Valid marriage without the consent of the spouses, the actual practice is different: the consent of the spouses is not considered or is merely a formality due to social constraints, especially in cases where refusal to marry is unthinkable or unacceptable to you. I have also expressed the UCOI ( The Federation of Muslim Communities in Italy) which affirmed in its “Fatwa” against forced marriage in Islam on June 3, 2021 that no kind of tax can be used in matters of marriage and that forced marriage has no legitimacy. This is also the opinion of the European Council for Fatwa and Research contained in the Resolution No. 14/4. This does not detract from the parents’ right to express non-binding opinions and advice in marriage decisions for their sons and daughters, in order to make family relations more stable and continuous. It is advisable to adhere to religious teachings and not to confuse them with the tribal and local customs and traditions of some residents.”
Is it possible to prevent this phenomenon?
“For the purposes of appropriate prevention, it is advisable to consider awareness-raising and training activities, which will allow for the immediate interception of cases at risk and the building of a protection network that includes each of the victims protection associations located at the national level. The territory, countries of origin, social and welfare services, schools, anti-violence centers and / or shelters, police authorities and judicial authorities.”