Obtaining the First “Get out of Marriage” Card for a Muslim Victim of Forced Marriage
By Evelyn Tsao
In this city, we take for granted that marriage is something freely chosen and entered into by two consenting individuals, and often times the product of true love. We believe no one should be forced into a marital union because the concept is antithetical to female self-autonomy and abhorrently evocative of rape, abuse and other forms of slavery. Modern talk of spousal relationships is premised upon equality between the spouses, indeed our law functions on the idea that husband and wife share equal rights and responsibilities.
It would come as a surprise then, for me to say that forced marriages exist for some people Hong Kong, and misogyny still governs certain communities in a city that is supposed to have caught up with modern times.
I met Sophie (a pseudonym to protect her identity) more than two years ago in November of 2020. Back then, Sophie was 21 years old and at the cusp of finishing her undergraduate degree at a university in Hong Kong. She was born in Pakistan but have been living in Hong Kong with her family since she was around 3 years old.
I recall Sophie in her shyla, sitting at the conference table, politely but affirmatively telling us she wants a divorce because she was forced into the marriage by her father and that she only wants to marry a man she loves, not her cousin whom she has no affection for. I recall Sophie’s placidity when she recounted to us her experience – starting from the spring of 2020 when her family travelled to Pakistan ostensibly to visit relatives, but her apparent calm gradually broke when the narration begin delving into details of the time when her father revealed the true purpose of the visit, and the day when her father beat her so hard with a cane that she finally submitted to the arranged marriage with her cousin, the ceremony happening only hours after the physical abuse. The pain she suffered, more emotional than physical, of her father’s betrayal was evident. In the photos of the marriage ceremony and supposed celebrations of the day, everyone was smiling except Sophie. She maintained a face of sorrow, she would not deign further to fake a smile.
Sophie is the embodiment of female resilience. Soon after she decided to bring an application to nullify the marriage, she moved out from her parents’ apartment and rented a bedspace apartment (more commonly referred to as “coffin homes” or “cage homes”). Fortunately at the time, she had completed her university degree and was able to find a job which pays just enough for her to support life on her own. Living apart from her parents was self-protection –she feared her father’s wrath and what he would do to her if he learned of the legal steps she was taking to obtain what is rightfully hers, i.e. the autonomy to decide how to live her life, and with whom.
The legal proceedings took two years. We knew even before we commenced the action that the biggest hurdle of Sophie’s case was that hers was a Muslim marriage. For a long time, the family court in Hong Kong had been refusing to deal with petitions for divorce in similar situations due to a specific provision under the Matrimonial Causes Ordinance limiting the jurisdiction of Hong Kong courts to pronounce a decree of divorce or nullity only in respect of “monogamous” marriage. The notion was that Muslim marriages were potentially polygamous as it was open for Muslim men to take more than one wife. Sophie’s case, therefore, was the first of her kind to test the adequacy of that concept.
With the help of an expert in Pakistani matrimonial law and the brilliance of Counsel Azan Marwah, we argued on behalf of Sophie that the family court should accept the marriage to be a monogamous union and the petition for nullity should be allowed to proceed. We were also prepared to rely on constitutional principles to assert the necessary protections for Sophie. I thought that if the status of the law is such that women in Sophie’s position could find no relief from being stuck in forced marriages, it is the law which needs changing. We would not and could not be acquiescent. After all, the rest of this young woman’s life and her happiness were at stake.
Very soon after we initiated proceedings, Sophie’s father demanded a meeting with me at my office. He brought along a friend, Mr B, who Sophie later tells me is a well-respected member of their community. The meeting was less of a discussion than an illustration of the extent of mansplaining women like Sophie had to put through day-to-day. The two men told me that in their culture, wives are the properties of their husbands and Sophie had no right to petition for a nullity of her marriage. They were adamant that Sophie should not disgrace the family name by choosing a course of action unsanctioned by her father or her husband.
More than half-way through the proceedings and closer to the handing down of the court’s decision, Mr B called me again. This time, he adopted a more urgent tone and threatened that there would be “bloodshed” if Sophie continues to pursue her application in court. He referred to honour killings in Pakistan and implied that harm would come our way. He said what we were doing is “shit” and “illegal”. He also told me that “lots of girls are in queue, they are just waiting for [Sophie]’s result” and that this would be catastrophic for their community.
After that call, I appreciated once again the level of courage Sophie had to muster in choosing to go against such a deeply patriarchal community that she is part of, and I felt more determined to bring her safely to shore. Luckily for Sophie, she also had a few very good friends who took on the role of being her strongest support network. They check on her regularly and would reassure me from time to time that Sophie is doing alright.
Sophie’s story has a happy ending. In March this year, having accepted the marriage to be monogamous and the evidence that Sophie did not consent to the marriage, the Court granted her a nullity decree, annulling the marriage. Sophie’s case, RM v. AY [2023] HKFC 59; FCMC 2226/2021 became a landmark case – the first successful nullity order obtained in the context of a forced Sharia marriage and it was the first time the Hong Kong court recognized a Muslim Pakistani marriage for nullity or divorce.
Sophie is a free woman again, free to choose if and with who she wants to marry. Sadly, however, Sophie is not the only case of forced marriage in Hong Kong.
In Hong Kong, there are many more Muslim girls who are forced into marriages arranged by their parents, many who have simply resigned themselves to marital bondage, many who dare not speak or act against the patriarchal power dominant in their communities, and many who subject themselves to a culture which views woman as subordinate and entities belonging to men. With the success of Sophie’s case, some may finally begin to see a way out.
Sophie is only one of many Muslim women of the younger generations who are raised and educated in Hong Kong. These young women find their treatment in their community at odds with what they were taught in schools, the information they learn from the internet, and from their non-Muslim peers. These women are taught that girls are just the same as boys, and that they deserve true love. They witness first-hand what the lack of love and respect between their parents could do to a family. They know when what is being asserted upon them is not what they want, and they are starting to forge a path different than their mothers and grandmothers. Increasingly, young women like Sophie are imbued with a sense of autonomy and entitlement, and they start exploring avenues of empowerment.
As a feminist, my hope is that Sophie’s case can awaken more women to fight the misogyny in their culture. They need to know they have the power to change their life’s trajectory. They need to be equipped with the necessary tools, both social and legal, to protect themselves against situations of abuse, enslavement and oppression.
At the dawn of pride month, I remember those who still do not have the right to marry who they love and I remind myself that while Sophie’s chapter is closed, the rest of the book is yet to be written. The book is and will always be a joint collaboration by all the feminists and rainbow warriors out there, pushing the envelope, asking for to be seen, to be heard, and to have their stories told.
