Arzoo refuses to go home after SHC finds her marriage ‘not legally valid’

Published November 10, 2020
The Sindh High Court on Monday directed police to take action against those responsible for an underage marriage after a medical board confirmed that young Arzoo was around 14 years of age. — File photo
The Sindh High Court on Monday directed police to take action against those responsible for an underage marriage after a medical board confirmed that young Arzoo was around 14 years of age. — File photo

KARACHI: The Sindh High Court on Monday directed police to take action against those responsible for an underage marriage after a medical board confirmed that young Arzoo was around 14 years of age.

A two-judge bench headed by Justice Mohammad Karim Khan Agha sent Arzoo Fatima back to a shelter home after she refused to go with her parents reiterating that she contracted marriage and changed religion of her own free will.

The bench observed that prima facie it was not possible for her to enter into a legally valid marriage with Ali Azhar under the Sindh Marriages Restraint Act 2013 since she was under 18.

The lawyer for the petitioner girl insisted that the marriage was in accordance with federal law.

Medical board says girl is 14; her lawyer’s argument is that the marriage was in accordance with federal law

However, the bench said that it might consider the issue at another time and appropriate forum whether the federal law can prevail over the provincial law after the 18th Amendment.

At the outset of the hearing, the girl was produced again before the bench from the shelter home and the judges asked her whether she was forced in any way to convert from Christianity to Islam.

The petitioner categorically stated that she converted to Islam of her own free will.

The bench said that since on the last hearing, the girl also stated that she had not been kidnapped by any party, but entered into marriage of her own free will, the investigating officer of the case was directed to record the statement of the girl under Section 161 of the criminal procedure code within three days.

A five-member special medical board, constituted on a court order to determine the age of the petitioner, informed the bench in its report that “as per [bone] ossification and physical appearance, the age of Mst. Arzoo D/O Raja Lal is to be between fourteen to fifteen years nearer to (14) years”.

The bench said it also noted that according to the birth certificate, ‘B’ form issued by National Database and Registration Authority and the school certificate as well as the affidavit of her father the petitioner was born on July 31, 2007.

“It is apparent that the petitioner is under the age of 18. This being the case, prima-facie it was not possible for her to enter into a legally valid marriage with Ali Azhar under the Sindh Marriages Restraint Act 2013 and as such cannot return to him,” the bench in its order said.

When the girl was asked whether she wanted to go with her parents or to shelter home, she replied that she was not willing to go to either of them.

Under these circumstances, the bench observed that it was left with no option but to send her back to the Panah shelter home and directed it to ensure her schooling, welfare and safety.

“Prima-facie it would appear that an offence has been committed under the Sindh Marriages Restraint Act and thus, the IO is directed to add such relevant sections to the challans and carry out full investigation into this matter,” it said and added that all those persons concerned in this underage marriage were also proceeded with in accordance with law and the girl’s father had already named those involved in the juvenile’s marriage in his comments filed before the bench.

The bench also ruled that the petitioner would not be allowed to meet her alleged husband at the shelter home and adjourned the matter till Nov 23 when the Anti-Violent Crime Cell SSP and the IO of the case would appraise it about further investigations.

The bench made it clear that no person involved in the underage marriage should be protected in any way and after proper investigation such persons may be proceeded in accordance with law if found in breach thereof.

The court order said, “In the meantime, while investigating this case, the police shall act strictly in accordance with law and shall not cause any harassment to any party.”

Initially, Arzoo petitioned the SHC seeking a restraining order against the registration of a kidnapping case against her spouse, in-laws and others by her family at the Frere police station. On Oct 27, the bench had restrained the Frere police from making any arrest and directed the Preedy SHO to provide protection to the couple.

However, the parents of the girl submitted that she was 13 and forcibly converted to Islam after being abducted. Thereafter, the incident of alleged abduction, conversion and underage marriage had sparked protests from human rights bodies.

Subsequently, the provincial law officer filed an application in the SHC seeking placement of the girl in the care of a shelter home to ensure her safety and protection.

Published in Dawn, November 10th, 2020

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