An incomplete law

25 May 2014


PERIS Tobiko is a Kenyan woman whose elder sisters were pulled out of school and married off at an early age. In her own words, she was to meet the same fate. However, she was lucky enough to have teachers who were willing to intervene and prevent her from facing a similar outcome. Today, as a result, Peris Tobiko is Kenya’s first Maasai woman elected to parliament.

According to the International Centre for Research on Women, the plight of Peris Tobiko’s sisters is not unique at all; in fact one hundred million girls will be married before the age of 18 in the next 10 years or so. Unfortunately, and without doubt, a number of those girls will be Pakistani.

Child marriages in Pakistan are a result of various factors, including poverty, attempts to prevent pre-marital relations, desires to forge family ties, as well as to protect ‘honour’.

However, such marriages have varying consequences for the children in question and society at large. Generally speaking, they tend to reduce the ability of the children to seek or continue their education and therefore to avail themselves of any future career opportunities.

Furthermore, such marriages prematurely end a person’s adolescence, and impose roles and responsibilities for which the child may not be physically, emotionally or psychologically ready.

Additionally, child brides are less likely to insist on contraceptives upon marriage. Therefore, after such marriages, girls often bear children immediately. This, however, gives rise to various risks. For example, as per a Unicef report, an infant born of a child is at a 60pc greater risk of dying in its first year of life as opposed to an infant born to a mother who is older than 19 years. Even if the child survives, he or she is more likely to suffer from lower birth weight, malnutrition or late physical or cognitive development.

It was perhaps in the light of all this that the enactment of the Sindh Child Marriage Restraint Act, 2014, was applauded by civil society in Pakistan. Even the media reported the enactment as a welcome step towards criminalising child marriage and protecting children.

However, if viewed in perspective, the act is not as remarkable or novel as it is being portrayed.

Firstly, the act is not revolutionary or even the first of its kind. Prior to its enactment there already existed similar legislation restraining child marriages. The act has in essence only re-enacted the previous law, albeit with certain modifications.

The present enactment, much like its predecessor, penalises a person involved in child marriage by way of imprisonment and a fine. Amongst other things, it also allows the appropriate forum to pass an injunction restraining a child marriage that is still to be arranged or solemnised.

As per the act, a child is defined as a person below the age of 18, whereas in the predecessor act, the age was set at 16 years for girls and 18 for boys. The punishment for encouraging, arranging, or solemnising a child marriage now carries a prison term of three years, as opposed to one month in the previous enactment.

A mother or female guardian can only now be punished with imprisonment for facilitating or encouraging a child marriage. Furthermore, the offence is now cognisable, non-bailable, and non-compoundable, with the trial to be preferably concluded in 90 days.

In comparison to its predecessor, the current act is only somewhat broader in scope and stricter in punishment. Other than that, the implications and scheme of the law remain the same.

Secondly, although the media celebrated the enactment as a ban on child marriage, it is anything but that. In fact, the act could best be described as a tool to discourage child marriages as opposed to stopping them. This becomes clear from the fact that although it threatens to impose harsher penalties on persons who engage in, facilitate, or encourage child marriages, it does not annul such unions.

Therefore, although a 50-year-old man marrying a child may be liable for imprisonment for such culpable actions, shockingly, his marriage with a 12-year-old girl would continue.

Hence, although the legislation has enacted harsher punishments for the arrangement or solemnisation of child marriages, it does not seem to go far enough to remedy the actual issues at stake.

In fact, as discussed above, the recently passed legislation only seems to tweak the law as it had existed prior to its enactment, without in any way affecting or outlawing child marriage itself. Although perhaps a step towards betterment, the law at present can be considered nothing more than the proverbial slap on the wrist of an offender.

The writer is an attorney at law.

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