Daily Times

Montana State Representative Jerry O’Neil requested the state’s Office of Legislative Services last November to be paid his salary in unadulterated gold and silver coins. The reason cited for this unusual request was the feared probable collapse of the dollar, as the US Department of Treasury stated the federal debt stood at $ 16.2 trillion.

Precious metals like gold and silver were used for centuries as currency in trading and purchasing. As paper money became the norm for buying commodities and merchandise, precious metals became a source of investment, mainly to protect against financial crises, be it economic, social or political. In the subcontinent, the cultural use of gold and silver is huge as jewellery made of these metals is not only used as an adornment but is also viewed as security and investment. The practice of gold jewellery given at the time of marriage, birth, birthdays and other special occasions, is rooted not only in the status of the parties but also as something to fall back on in times of hardship and need.

In Pakistan, whether one is rich or poor, giving of gold jewellery at the time of marriage is a settled practice. Even in households where the available income is limited, people scrimp and save, beg and borrow to be able to give something made of gold to the bride. Ever since I was young, I would see my mother save to buy items of gold jewellery. I still remember once she sold her buffalo — thank God — and bought five gold bangles in the mid-1970s. At the time, the bangles cost Rs 3,500 and weighed five tolas; now they can be valued at Rs 300,000! Although one can no longer wear gold jewellery without the fear of being robbed or killed, the tradition continues. It is because gold is something one can fall back on in a financial crisis, or as the currency devalues, it can be used as collateral for obtaining loans.

One of the major problems facing the women of Pakistan is the return of the dowry and payment of their dower in the event of a divorce. Unknown to many, gold jewellery given by the bride’s family and of the groom’s is the absolute property of the girl. I have been saying this for ages that preferably any gold jewellery received at the time of marriage should not be put down as ‘dower’, as in the event if khula (a ground of dissolution of marriage) has to obtained by the wife, the dower has to be returned. In a large majority of cases, the jewellery is taken away by the husband or his family, forcing the women to go to court for its recovery. What transpires is a long drawn out case to obtain what is legally the property of the woman. An error that is made too often is when a case for recovery is filed is to place a monetary value on the gold instead of just asking for it to be returned in weight whether in tolas or grams; one tola is the equivalent of approximately 12 grams.

Even though the family law was specifically amended in 2002 to include a provision that all cases instituted under it have to be decided within a period of six months, sadly the reality is otherwise. Despite efforts being made by the superior judiciary, years still pass before a decree is finally passed and drawn up and then another battle starts: the battle of execution. Compared to the execution proceedings, the trial suddenly seems a piece of cake. Although the family or the executing courts are empowered to use coercive measures, years pass before the decree-holders finally get what was theirs to start with in the first place. Now imagine if a girl was given one tola of gold in the year 2000 when she got married, the value of gold at the time would be around Rs 5000 per tola. She is thrown out in 2006 and her jewellery is taken away; the value of her gold would be approximately Rs 11,000. She decides to file a suit for recovery in the year 2007 and her gold would have increased to Rs. 15,000; the case is finally decided in 2010 when the value of the gold would be Rs 35,000, but the woman does not get her payment until 2013 when the gold would have increased to Rs 63,000. So how fair is it then to award either Rs 5000, or Rs 15,000, or for that matter Rs 35,000 for something that is valued at Rs 63, 000?

The Family Courts Act (FCA) is a special law that excludes the application of the general law. This law is meant to foster justice and advance speedy remedies. Even if a counsel errs and places a monetary value on gold at the time of filing of the suit, the judges presiding should exercise diligence, uphold the principles of justice and decree the return of gold in the weight mentioned and not its equivalent monetary amount, whether specified at the time of institution of the suit or decision.

The government by notification gives a value of diyat (payment to the heirs of a deceased victim) each year. For the financial year 2012-13, the federal government notified the value of diyat to be Rs 2,532,073, the value of 30,630 grams of silver. Any diyat that is payable cannot be less than this specified value. But each year it is the weight of 30,630 grams of silver, which is converted into rupees; gold and silver are commodities that appreciate in value unlike cars, electronics, furniture, etc. Although I cannot argue that government specify the value of gold for family cases each year, I will urge it to amend the law to specifically include that if in a case where the gold has been disposed off by the judgement debtor, he will be liable to return the exact amount of gold, or in the alternative, the market price of gold, at the time of making the payment, not that at the time of the institution of the case, or passing of decree or filing of execution petition. Unless and until this principle is implemented, the person committing a wrong will continue to benefit and it is a well-settled rule of law that no man can take advantage of his own wrongful act.

Although in the elite classes of India and Pakistan gold is being replaced by diamonds, the vast majority still invests in gold. When a baby girl is born, the mother starts making mental notes of what she will keep for her and as she grows, the collection starts. Ideally, girls should be taught to keep their valuables, including important documents and jewellery, in an independent safe deposit box in a bank to prevent loss and snatching. In an ideal world, nothing bad happens, but unfortunately, we do not live in an ideal world. Women are beaten, thrown out — destitute and vulnerable — without any security or financial protection, and they cannot even get back what their parents gave them, let alone what someone else did. Equity, justice and fair play are such grand notions and we need to see these in action, starting with the basics and the most vulnerable. Jerry O’Neil realises the value of gold — whether he gets paid in it is not our problem — but it is definitely our problem if we do not know the difference between peanuts and gold.

The writer is an advocate of the High Court