The issue of improving the existing law restraining child marriages has once again been in the limelight and hotly debated by different circles. While civil society groups had already been holding consultations on a proposed Khyber Pakhtunkhwa Child Marriage Restraint Bill 2015, reports appeared about withdrawal of a bill in the National Assembly, which was tabled in 2014 for amending the colonial-era Child Marriage Restraint Act (CMRA), 1929, by its movers in the light of certain recommendations of the Council of Islamic Ideology (CII).
The views of CII regarding child marriages are not new and from time to time it has been making public its points of view.
In March 2014, the CII in its meeting had ruled 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. Such a view of CII has been drawing criticism from child rights activists on different grounds especially medical and psychological issues attached to it.
KP Alliance to End Child Marriage, a network of social activists, has criticised the CII and even demanded the removal of its Chairman Maulana Mohammad Khan Sherani. At a seminar, the alliance demanded that an educated, enlightened, progressive, moderate and real Islamic scholar should be appointed to replace him.
The Child Marriage Restraint (Amendment) Bill, 2014 was tabled by MNA Marvi Memon and some others seeking amendments to the CMRA, including 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.
The CMRA in its original form was passed in 1929 and it came into force from April 1, 1930. At present, very nominal punishments are available in CMRA for persons involved in child marriages. Under the law, a male above 18 years of age, if contracts child marriage, shall be punishable with simple imprisonment which may extend to one month, or with fine of up to Rs1000, or with both.
Moreover, whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine of Rs1,000, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.
Following the enactment of the Constitution (Eighteenth Amendment) Act, 2010, the issues related to “marriage and divorce”, which was previously in the Concurrent Legislative List of the Constitution, has been a provincial subject. Child rights are also a provincial subject for legislation purpose.
Sindh is the first province which enacted a separate law on child marriages and repealed the CMRA 1929. The Sindh Assembly passed the Sindh Child Marriage Restraint Act, 2014, which received assent of the governor in June 2014.
The most progressive step taken by the Sindh Assembly was that it enhanced the prohibitory age of a female to 18 years from 16. The law also enhanced punishment for contracting a child marriage to imprisonment of up to three years along with fine.
The Punjab government instead of repealing the CMRA enacted the Child Marriage Restraint (Amendment) Act, 2015 in March 2015. Under those amendments imposition of a six-month prison term and fine of Rs50,000 was introduced for a person contracting child marriage. However, the thorny issue of changing the prohibitory age for marriage was not touched.
Khyber Pakhtunkhwa and Balochistan lag behind the other two provinces. In 2013, Munawar Sultana, then MPA of Awami National Party, had tried to table a bill for amending CMRA to enhance the sentences mentioned therein along with raising the prohibitory age of female child.
However, she had to face resistance from other MPAs, including her party colleagues. In the assembly session on Jan 10, 2013 when Ms Sultana tried to table the Child Marriage Restraint (Amendment) Bill, 2013 other members opposed it, terming it “NGO-centric”. Following resistance, she had to withdraw the bill.
The KP government again drafted a bill, KP Child Marriage Restraint Bill, in 2014. However, this law has yet to be enacted to replace the CMRA 1929. The proposed law also provides that the age of a female child shall be enhanced to 18 years. The proposed law provides: “Whoever being adult person, above 18, contracts a child marriage shall be punished with simple imprisonment which may extend to three years, but shall not be less than two years and shall also be liable to fine that may extend to Rs45,000.”
The proposed law provides that it shall be obligatory for the “nikah” registrar to check the national identity card of both the parties to the marriage and also attach the attested copies of their identity cards with the form.
The controversy concerning the child marriage restraint laws mostly relates to the definition of a “child”.
The CMRA originally defined a “child” as a person who, if male, is under 18 years of age, and if female, is less than 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.
While the controversy related to CMRA refuses to die down even the existing law could not be implemented. Experts believe that the provincial governments should take steps for implementing the law. In KP, they suggest that the offence should be made cognizable as presently it is a non-cognizable.
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 government in this regard.
Published in Dawn, January 25th, 2016