Transgender children shall be protected by the State: Federal Shariat Court

ISLAMABAD, Dec 13, (SABAH): Full bench of the Federal Shariat Court (FSC) comprising Chief Justice Dr. Syed Muhammad Anwer and Justice Khadim Hussain Shaikh heard the petition regarding Transgender Persons (Protection of Rights) Act, 2018. Representatives from transgender community also attended the hearing.

During the course of hearing a person from khwaja sira community showed concerns over worse situation of the community. The FSC Chief Justice inquired regarding the same from the representatives of Ministry of Human Rights; however, they could not provide a plausible explanation. The FSC Chief Justice expressed his concern over the matter and was dissatisfied with their explanation. The FSC Chief Justice held that unfortunately, these children have abandoned by their own families, as a result whereof they are abused by the criminals and fall prey to pedophiles and other predators in our society, which is a scar on the face of this society. Similarly, the lives of same category of persons become more miserable as they turn old.

The FSC Chief Justice further remarked that Section 6(a) of the impugned Law bounds the Government and Ministry of Human Rights to ensure the rescue, protection and rehabilitation of transgender persons in addition to providing medical facilities, psychological care, counseling, etc. The Bench further said that Allah Almighty has bestowed dignity on every human being and this is our belief as stated in the Holy Quran, even it has also been enshrined in the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, there should be exclusive protection homes for such children, who are intersex and are abandoned by their families, as well as for the older persons falling under the category of intersex (Khusra) as defined in section 2(n)(i) of the impugned Law.

The Ministry of Human Rights has been directed to submit a report positively by 15.12.2022 showing whether there is any facility for the protection of children born with some defects in their sexual organs.

Meanwhile the bench comprising of FSC Chief Justice Dr. Syed Muhammad Anwer and Justice Khadim Hussain Shaikh heard a petition regarding the practice of preventing daughters from family property by gifting the same to male children. The case was argued by Dawood Iqbal Advocate on behalf of the petitioner.

Learned counsel stated that the practice of depriving daughters from the family property is a grave injustice and is violative of several Ahadeeth of Holy Prophet Muhammad (PBUH) and hence, should be declared repugnant to the injunctions of Islam. He further argued that, in Islam, the act of gifting property to one’s children is conditional upon the fact that the same is distributed equally among them and none of the children, particularly daughters, are deprived of it.

The counsel while placing reliance on commentaries of Islamic Jurists on the Islamic jurisprudential principle of Sadd al Dhara’i (Blocking the means) argued that Islam has legalized certain forms of conduct and prohibited others in accordance with the benefit or harm they lead to. And when a particular act or form of conduct brings about a result which is contrary to the objectives of Islam, then the latter would be held to prevail over the former. Since the act of gifting the entire property to male children by depriving daughters of the same violates the basic purpose of Shariah, therefore, it must be blocked and declared to be repugnant to the injunctions of Islam.

The learned bench after hearing arguments of the counsel issued notice to the Federal government/Ministry of Law and Justice. It is to be noted that the matter was taken up by the FSC Chief Justice on an application received by the Human Rights Cell of the Federal Shariat Court.