TRADITION can sometimes be an albatross around one’s neck. In a conservative, patriarchal society like Pakistan where a high premium is placed on a woman’s childbearing role, early marriage is often seen as a desirable ‘aspiration’ for females. However, the Islamabad High Court on Tuesday delivered an eminently wise judgement in a case of early marriage that implicitly recognises the practice as the root cause of many social ills and much personal tragedy. Issuing a written order on the plea of a woman seeking recovery of her 16-year-old daughter who had filed an affidavit to say she had tied the knot of her own free will, Justice Babar Sattar declared the marriage of anyone under 18 years of age as being unlawful. “…[G]uided by principles of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child and the family), the test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth,” he wrote. The ruling rightly noted that a child cannot be “deemed to have the competence or capacity” to parent a child of his/her own while being a minor.
Indeed, an early marriage means a childhood lost. It has profound and long-term consequences for girls’ education and health and for the quality of life they can provide to their own progeny. The onerous responsibilities of a marital relationship and subsequent parenthood leave minors more vulnerable to domestic violence, to death in childbirth, and to medical conditions like obstetric fistula and cervical cancer. The latter is the third most frequent cancer among women overall in Pakistan, but the second most frequent among females between 15 and 44 years. While the IHC judgement is only applicable to the ICT, provincial legislators should take a cue from it to amend their own laws. Sindh has already done the needful when in 2014, it criminalised child marriage and raised the minimum marriageable age for females from 16 to 18 years, bringing it on par with that for males. The other provinces however are still frozen in time, having retained 16 years as the minimum age at which girls can marry. That is not to say that child marriage does not happen in Sindh — some reports suggest the incidence is rising — but the law at least provides the framework on which to act against the misogynistic practice.
Published in Dawn, March 4th, 2022
