View from courtroom: Bill related to child marriages generates heated debate

Updated March 31, 2014

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CII chairman Maulana Mohammad Khan Shirani. — File photo
CII chairman Maulana Mohammad Khan Shirani. — File photo

The tabling of Child Marriage Restraint (Amendment) Bill 2014 in the National Assembly by PML-N MNA Marvi Memon and some other members has triggered a fresh controversy while the dust raised after the recent findings given by the Council of Islamic Ideology (CII) concerning certain sections of the Muslim Family laws Ordinance 1961, including polygamy, has yet to settle.

CII chairman Maulana Mohammad Khan Shirani has criticised the bill, stating that the council had already given its recommendations over the Child Marriage Restraint Act (CMRA) and the bill should not have been tabled in the assembly. The CII in its meeting had ruled on March 10 that laws related to minimum age of marriage were against Islamic teachings and that children of any age could get married if they had attained puberty.

The bill tabled by Ms Memon seeks several amendments to the colonial era law of CMRA 1929 which are mostly aimed at raising the prohibitory age for a girl child to 18 years; making punishments for the persons responsible for child marriage much harsher; and to clearly spell out the jurisdiction of the court in this regard.

Interestingly, last year a member of the Khyber Pakhtunkhwa Assembly, Ms Munawar Sultana, belonging to Awami National Party, had tried to table an identical bill, but she had to face resistance even from her own party members as at that time the coalition of ANP and Pakistan Peoples Party was ruling the province. In the assembly session, on Jan 10, 2013 when Ms Sultana tried to table the Child Marriage Restraint (Amendment) Bill, 2013 her party leaders as well as other members opposed it terming it “NGO-centric”. Following resistance from both the treasury and opposition, Ms Sultana had to withdraw the bill.

Presently, CMRA has turned into a useless piece of legislation which has not been implemented in any of the four provinces.

The controversy concerning this law mostly relates to the definition of a “child”. The CMRA defines a “child” as a person who, if male, is under 18 years of age, and if female, is under 14 years of age. Through Section 12 of the Muslim Family Laws Ordinance, 1961, the age of a girl was raised to 16 years. However, during the military government of Gen Ziaul Haq the Section 12 was omitted through Ordinance No 29 of 1981.

Section 8 of the said Act provides that no court other than that of a magistrate first class shall take cognizance of, or try, any offence under this Act. Under the law, the court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be arranged, issue an injunction against any of the persons responsible for child marriage including: a male adult above 18 years of age marrying a child; Whoever performs, conducts or directs any child marriage; and parents or guardians in a child marriage.

The CMRA provides nominal punishments for the offence of child marriage as with the passage of time amendments have not been introduced in it. The law provides whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend up to one month, or with fine of up to Rs1,000, or with both, unless he proves that he had a reason to believe that the marriage was not a child marriage.

Furthermore, where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised, or fails to prevent it from being solemnised, shall be punishable with simple imprisonment which may extend up to one month, or with fine of up to Rs1,000, or with both: provided that no woman shall be punishable with imprisonment.

The issue of child and forced marriages of children was also discussed by the UN Committee on the Rights of the Child in 2009 while examining the 3rd and 4th periodic report of Pakistan submitted under the Convention on the Rights of the Child. The committee had recommended that the State party “strengthen its efforts to effectively implement the Child Marriage Restraint Act (1929) and amend it with a view to ensuring adequate punishment and to raising the minimum age of marriage for girls to 18 years.”

“This law could not be implemented due to different reasons, including the procedure given for the court to take cognizance of the offence,” said advocate of high court Shahnawaz Khan, adding that child marriage in different areas was a deep-rooted customary practice against which people were shy of raising their voice.

Mr Khan said that child marriage was a non-cognisable offence as the police could not interfere in it and only the court of a magistrate could take cognizance of the issue only after filing of a complaint by a union council or any authority designated by the provincial government in this regard. He believed that the law required several amendments, especially for enhancing the punishments.