Legislating to protect a child’s innocence

Updated February 01, 2016

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The issue of child marriages has been hotly debated in the assemblies and the media of late.

While there are laws that protect the innocence of children, there are considerable religious, cultural and social factors that overshadow these laws.

In this special report, Dawn analyses existing legislation, examines proposed provincial bills and looks at the contradictions within the laws already in force.


Shagufta Begum was married before she turned 15. Her husband, whom she speculates may have been in his 50s when the marriage took place, was already married but did not have a son.

His family suggested he take a younger second wife, who would have several decades to bear him more children; ideally sons.

Shagufta was married around 50 years ago.

Back then, the only legislation on child marriages in Pakistan was the Child Marriage Restraint Act 1929, which originally stated that a girl was of marriageable age when she turned 14.

After the Muslim Family Laws Ordinance 1961 (VIII) was promulgated, the age was raised to 16.

Shagufta’s husband died after the birth of her fourth son, when she was 35.

“I was left with four children and I didn’t even have a degree. It feels like I have spent an eternity alone.”

“I never knew why I was married off so young, or to such an old man. My family was well-off, they were educated. I was studying at a school and wanted to be a lawyer and I still love films and dramas that have a legal angle,” she said.

In the 50 years since Shagufta’s wedding, the legal situation around child marriages has changed significantly.

Since the 18th amendment, provinces have become responsible for drafting their own laws on child marriage, while the Child Marriage Restraint Act 1929 remains in place in federal territory.

The Sindh government was the first to legislate on child marriage, passing the Sindh Child Marriages Restraint Act in 2013.

Punjab followed two years later with the Punjab Marriage Restraint (Amendment) Act 2015.

The Khyber Pakhtunkhwa and Balochistan governments are also currently drafting their own child marriage acts.

However, for activists the existing legislature on child marriage is rife with lacunae and contradictions.

The 1929 act served as a starting point for much of the legislation that has followed.

The marriageable age for girls in the 1929 act is 16, and 18 for boys. According to the act, the offence is non-cognisable.

In non-cognisable offenses, the police cannot arrest a suspect without the court’s permission. This means that the police are not empowered to act against child marriage even if they are made aware of a case.

Family courts could only take cognisance of the offence based on a complaint by the union council, or, “an authority the provincial government may prescribe”.

However, no cognisance can be taken “after the expiry of one year from the date on which the offence was alleged to have been committed”.

In comparison to this, the Sindh act has increased the marriageable age for girls to 18 and makes it a cognisable offence, non-bailable and non-compoundable, and the punishments are much harsher – with two to three years rigorous imprisonment as well as a fine.

Ayesha Inam, project manager at Oxfam Novib, said this was a major step towards equality.

“The provincial government has tried to cover most lacunae in the 1929 act... removing the discrimination that was part of the 1929 act,” she said.

She also commended the heavier punishments in the Sindh act, which can vary from Rs100,000 to Rs300,000 in fine as well as two to three years imprisonment.

However, Ms Inam said that the Sindh act didn’t ask for proof of age. She said the bride and groom’s CNICs should be required at the time of the marriage to prove their ages.

The Punjab act lies somewhere between the 1929 and Sindh acts.

While the marriageable age for girls remains 16 and the offence is still non-cognisable, the Punjab act has ordered harsher punishments: six months imprisonment and an Rs 50,000 fine for marrying a child, solemnising a child marriage, as well as for a parent or guardian.

Question of age

Zohra Yusuf, chairperson of the Human Rights Commission of Pakistan (HRCP), said there had been certain cases where the police acted against child marriages, adding, “Some people have been imprisoned in Sindh for violating the child marriage act. But the enforcement has not been enough.”

However, human rights activists are unhappy with Punjab’s decision to not increase the marriageable age.

Ambareen Sharif of Oxfam pointed out that while the Punjab act had failed on many fronts, “it demands a CNIC for the nikkah. This means that they have effectively raised the age because you can’t have a CNIC before 18.”

However, she added, the move had created confusion in the province.

After what they witnessed in Sindh and Punjab, activists also have recommendations for improving existing and upcoming legislation.

For instance, they point out that one of the key challenges in legislating against child marriages is the lack of documentation.

The lack of registration of marriages, even births and deaths – particularly in rural areas – make the implementation of existing laws much harder.

“Sometimes you can even register a marriage, but you can’t give the right age because the birth [of the bride or groom] has not been registered,” says Ambareen Sharif of Oxfam.

“…If you try to stop parents from marrying their children by saying the child looks underage, the parents can just lie and say the child is of age adding that because his or her birth wasn’t registered, there is no documentary proof,” Ms Sharif says.

Faizan, who lives in Islamabad and has been married for two years, was married at 15 to a girl of the same age. While their nikkah has not been registered yet, they had registered the birth of their daughter.

Anees Jillani, a lawyer and rights activist, argues in favour of laws that make it mandatory to produce proof of age at the time of marriage: “If the production of Form-B is made compulsory for registering a marriage, it would help.”

That the debate and the push for reform is far from over is evident from the fact that the National Assembly Standing Committee on Religious Affairs rejected amendments – including a provision to raise the marriageable age for girls to 18 – to the 1929 act after members of the Council of Islamic Ideology called the bill “un-Islamic”.

PML-N lawmaker Marvi Memon has since withdrawn the proposed amendments.

Family pressure

In the middle of all this, a 17-year-old girl in Islamabad was married to her 32-year-old fiancé at the start of the year. Saira said she was not forced into the wedding and that she would continue her studies after marriage even though her engagement came as a shock.

“My parents had never indicated they wanted to marry me off early, and I hadn’t wanted to either. But my own uncle came to ask for my hand for his son, so my parents felt they couldn’t say no. That’s how it is with families. They did ask me, and I said yes because I thought that is what was expected of me. They are my parents; surely they will make the right decisions for me.”

After a pause she adds, “I think if I want to call it off, no one will object though I am getting used to the idea.”


KP, Balochistan laws yet to see light of day

While the 1929 act provides for the pre-emptive prohibition of child marriages by a court, none of the laws currently in force deals with existing child marriages, nor is there any provision for their automatic dissolution. ─ Photo courtesy Bedari
While the 1929 act provides for the pre-emptive prohibition of child marriages by a court, none of the laws currently in force deals with existing child marriages, nor is there any provision for their automatic dissolution. ─ Photo courtesy Bedari

The status of child marriage laws in KP and Balochistan remains unclear, even though both provincial governments are said to be working on legislation to counter the practice.

However, only civil society activists working on the drafts are willing to talk about it. It is hard to find out what the politicians think the bills have not been tabled in the assemblies.

In Balochistan, Saeeda Manan, an official from the province’s social welfare department said a draft bill was being currently discussed by stakeholders.

Explaining the factors leading to child marriages in Balochistan, she said, “Sometimes Pakhtun and Baloch families take money from the boy’s family in exchange for marrying off their daughters (a practice called walwar); in certain cases the families are impoverished, or it is seen as a cultural or religious norm.”

Habibullah Khan, regional director of Rahnuma, told Dawn Balochistan has the highest percentage of urban early marriage, with 9pc of men and 56pc of women married before 20.

A bill, he said, had been drafted by retired Justice Mehta Kailash Nath Koli alongside Aurat Foundation.

When asked about the ages specified in the draft bill, Ms Manan said: “People use Islamic examples when talking about this, but in Islam, marriage is taken as a contract. If it is compulsory for one to be 18 or 21 years of age to enter into a contract, or to make an identity card, then one must be 18 to enter into this contract as well.”

But Haroon Dawood of the Aurat Foundation said the draft recommended 18 as the age for marriage and featured harsh punishments. However, it is not clear if the draft enjoys the support of the legislators.

When asked, Mr Dawood said vaguely, “There is a majority of religious parties in the assembly, so if we have a strong and reasonable draft in hand it will be easy to get it passed in the assembly.”

In KP, a bill on child marriage has been tabled by the PTI government before the provincial assembly.

According to Qamar Naseem, the programme coordinator at the NGO Blue Veins, the bill was initially handed over to the Child Protection and Welfare Commission, which took two and a half years to produce a three-page draft.

KP Child Protection and Welfare Commission deputy chief Aijaz Mohammad Khan said the bill hoped to cover some of the gaps in the Child Marriage Restraint Act 1929, such as the lax punishments. “We have increased the punishments, and have made the offence non-bailable and cognisable by police,” he said.

A draft of the bill available with Dawn sets the marriageable age at 18 for girls and boys, and sets punishments at two to three years imprisonment and a fine of Rs45,000.

The offence is cognisable, which means the police is empowered to act against an offence with or without a court order, as well as non-bailable and non-compoundable. A non-compoundable offence is one where society, along with a private party, is affected. No authority is allowed to compound the offence, and a full trial must be held that can result in either acquittal or conviction.

However, Mr Naseem pointed out that certain parts of the bill are problematic. One such clause is the ‘indemnity’ clause, which says that if anyone acted in ‘good faith’ he or she will not be proceeded against.

According to Advocate Arif Yousef, the KP CM’s Special Assistant on Law and Human Rights, “Under ‘good faith’ we are trying to encompass various situations, such as whether or not there is a wali – which there is in some cases and there isn’t in others. According to Islam, if there is an early marriage, a wali is necessary – so we are trying to bring that under ‘good faith’. Or, if in good faith, parents marry their child, they will not be prosecuted.”

Mr Naseem disagrees: “All child marriages are not forced marriages. Girls consent, boys consent, as do their families. Some are done due to poverty, some to end feuds; so under ‘good faith’ you could nullify all the effort and content in this bill.”


What to do with a child marriage?

While the debate over child marriages across the provinces is dominated by the age issue, there is an even more important issue that no one is discussing – none of the country’s laws call for the automatic dissolution of a child marriage.

HRCP chairperson Zohra Yusuf calls it “criminal” to keep victims of abuse in abusive situations. She said this in response to a question. She hoped that the legislation on the issue in Balochistan and KP would provide for the automatic dissolution of a proven child marriage.

Experts explain that cultural and religious sensitivities are behind this oversight.

According to Anees Jillani, the main reason for this is the legitimacy of children borne from a child marriage. “And even if there are no children and a marriage is declared void, then the question of sex during the interim period will arise,” he added.

“The [Dissolution of Muslim Marriages Act 1939] states that if a girl is married as a child, at the age of 18 she can decide whether she wants to continue with the marriage or not,” Ambareen Sharif of Oxfam Novib explained.

When asked what the law states if the marriage had been consummated, Oxfam Novib’s Ayesha Inam said: “If the girl is in a marital relationship, then there’s no point in declaring the marriage null and void at 18. She may have the option as far as the law is concerned, but practically it’s not very feasible.”

She said no existing law on child marriage have a provision to automatically dissolve or repeal a child marriage. Even if a marriage is dissolved through a court order, society treats marriage as a sensitive topic. “If a 14 or 16-year-old’s marriage is dissolved because it has been classified as an early marriage, she will have to face stigma and social ostracism.”


Contradictory laws?

Child marriage laws may have been enacted, but rights activists are not satisfied.

They cite half-hearted reforms, a lack of implementation and most importantly, the contradictions within the existing legislation and ask how it is possible to enforce laws that are contradicted by, among other things, the Constitution itself.

This is a major reason rights organisations are protesting the difference in marriageable ages for girls and boys.

The Child Marriages Restraint Act 1929 and the Punjab Child Marriages Restraint (Amendment) Act 2015 both determine the marriageable age for girls at 16 (while it is 18 for boys), which Oxfam’s Ayesha Inam described as discrimination based on gender.

“It’s a violation of Article 25, which prohibits discrimination based on sex.”

The lower age for girls is also an indirect violation of Article 25A, the right to compulsory education, she says.

This is because girls are often married young and are either unable or not allowed to continue with their education.

Additionally, girls who are married before adulthood are at greater risk of health problems. Underage pregnancies are severely detrimental to health, often leading to obstetric fistulas and an increased risk of death for both the mother and the child.

Such laws are also in contravention of Pakistan’s various international obligations. The UN Convention on the Rights of the Child (CRC), which Pakistan ratified in 1990, states that a child is any human being under the age of 18.

Pakistan is also in contravention of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which states that countries shall ensure that men and women have the same right to enter into marriage freely.

Moves to amend Pakistan’s child marriage laws to comply with the Constitution and with the international laws have not been successful, so far.


*With additional reporting by Sanam Zeb

**Names have been changed to protect individuals’ identities

Published in Dawn, February 1st, 2016