Hijra, Marriage and the Law

On 24 May, 2010, in Peshawar, Rani, Malik and 45 other people were arrested for holding a wedding ceremony. Rani is a known Hijra (third gender/trans woman) while Malik is a cisgender man who also had two previous marriages. Both Rani and other prominent members of the Hijra community denied the fact that a wedding ceremony was taking place, and said that the function was in fact a “salgirah” which is an annual function that is celebrated by a Hijra or Zanana where other members of the community are also invited.

The police’s story is that station house officer Shahzad, while on patrol in the area, received information that a wedding ceremony was taking place between a Hijra and a man. On receiving this information he raided Rani and Malik’s residence along with other police officers and arrested Rani, Malik and all the guests present there. They also took into custody the clothes belonging to both Rani and Malik, musical instruments found at the scene and other items including a Kalashnikov.

This is only the most recent example of the fact that, in spite of the Supreme Court judgments that give a minimal pronouncement that “eunuchs” should be treated as human beings, the police treatment of Hijra and Zanana communities remains abysmal. In fact the greatest threat of violence, blackmail and coercion these communities face is from these so-called “guardians” themselves. Being designated human beings by the honourable Supreme Court still does not grant them even the bare fundamental rights enumerated within our constitution.

These arrests violate at a minimum four constitutional guarantees: the dignity of man and the inviolable privacy of the home, subject to law; the equality of citizens and the right to equal protection under the law; protection from discrimination on the basis of sex; and freedom of assembly.

It is irrelevant whether these people were gathered to celebrate a wedding or union between two people or celebrating that “salgirah” of Rani. In either case they were in a private home in the presence of friends. What gave the police authorities the right to invade their private abode?

In fact where is the legal evidence of marriage that the police moved on? Did they have a legal “Nikah Nama” (Marriage Certificate) that stated that these two individual are married? Or is this part of the larger police harassment and violence that the Hijra and Zanana communities are subject to on a regular basis, just because they represent a marginalized and silenced part of our society?

I would argue the latter. The first instance report (FIR) that is recorded against the two main accused cites a number of provisions from the Pakistan Penal Code including 377, unnatural offences; 511, punishment for attempting to commit a crime that is punishable with life; 294, obscene acts and songs; 148, rioting armed with a deadly weapon; 149, that every member of an unlawful assembly is guilty of the common offence.

Based on little on no evidence the police raided and invaded the privacy of these individuals, violating their constitutional rights and making a spectacle out of them, enacting a public shaming of their suspected union and pronouncing both a moral and a legal judgement on it as well, neither of which is the purview of the police.

The Hijra community is an organized community of transgender women (which may also include intersex individuals) who normally earn their living by begging, entertaining at wedding celebrations, mourning with families at funerals and, oftentimes, sex work. They also at times identify as third gender. Zanana, on the other hand, refers to those who have not undergone castration and is a broader category that that encompasses transgender women, feminine gay men and transvestites. Practically, these terms represent two different communities that may intersect at some points but are mostly distinct from one another in terms of self-representation. Hijras and the Zananas have evolved a parallel support system that provides an alternative to the traditional family structure, from which they are rejected and shunned. In this space they are free to express themselves as they desire.

But in our society, as a result of their difference, Hijras and Zananas are mostly seen as asexual, unable to procreate and hence free of any kind of sexual desire. The idea that a Hijra or Zanana may marry a man is unacceptable to the state and media, and the communities themselves openly disavow such a union. But the fact of the matter is that Hijras and Zananas live, love and desire just like the rest of us.

Being a minority of any kind in Pakistan is a tough job, a case in point being the recent massacre of Ahmadis in their own mosques in Lahore. Quarters within our society are not accepting of any kind of difference be it gender, religion, ethnicity or sexuality.

We are supposedly all part of a homogenous whole that can be infinitely replicated into tiny perfect little images of itself. But the reality is not so. The Hijra and Zanana communities are a chink in this neat armour of homogeneity because their gendered representations challenge the discrete gender binaries we have set up and presume to be natural. Within the legal and social realms, the only representation that makes Hijra and Zanana identities palatable for the audience is a biological/medical one. Their condition, conflated with intersexuality, is seen as a biological misfortune. The Supreme Court decision also validates and reifies this view, as is clear from its need to condescendingly declare them human as if being human is something that can be ambiguous. But as a society, that is as far as we are willing to go. They must stay on the margins we have pushed them to, forced to represent themselves as incapable of love, desire and unable to marry and live lives with spouses of their choice. They are human, but just barely. It is clear from the lives of Hijras and Zananas, however, that there is far more to their identities than biology.




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