‘A crying evil’

Published March 7, 2022
The writer is a barrister.
The writer is a barrister.

NEARLY a hundred years ago, a member of the Delhi Legislative Assembly took the floor. The law being debated was the Hindu Child Marriage Bill, which was being fought tooth and nail by Hindu conservatives. The member was among the bill’s few supporters and, what’s more, wished to extend its protections to Muslim girls. This move, in turn, sparked the rage of the Muslim clergy.

Opposed by all sides, the member didn’t flinch. “Sir,” he said on Sept 11, 1929, “the first and foremost question that I put to myself as a member of this legislature is whether child marriage is an evil in this country or not; is it a crying evil or not? Is it human that thousands and millions of girls be married at a very tender age which must sap their womanhood?”

For someone rarely so emotional, Mohammad Ali Jinnah’s speech requires revisiting: “I was myself unaware of the extent and the degree of evil that existed among the Mussalmans,” he said. “…I cannot believe that there can be a divine sanction for such evil practices as are prevailing, and that we should not, for a single minute, give our sanction to the continuance of these evil practices any longer. How can there be such a divine sanction to this cruel, horrible, disgraceful, inhuman practice that is prevailing in India?”

He pleaded that the assembly act at once: “I am convinced in my mind that there is nothing in the Quran, there is nothing in Islam which prevents us from destroying this evil. If we can do it today, do not wait till tomorrow.”

In Punjab, the Marriage Restraint Act is a joke.

It was Mr Jinnah as he’d always been: up against the baying mob, be it Hindu or Muslim, he refused to give in — even if that meant losing it all. “I make bold to say that if my constituency is so backward as to disapprove of a measure like this then I say, the clearest duty on my part would be to say to my constituency, ‘You had better ask somebody else to represent you’.”

That need never arose: the debates climaxed with the passage of the Child Marriage Restraint Act of 1929 and, as a result of Mr Jinnah’s efforts, covered Muslim girls as well.

Yet few have taken up the mantle since, and the laws remain much the same nearly a century later. In Punjab, the Marriage Restraint Act is a joke: even after the PML-N’s feeble changes, the punishment for marrying a minor, or solemnising it, is a mere six months max — a slap on the wrist that isn’t cognisable, non-compoundable, or non-bailable.

And where the laws do change, as with Sindh in 2014, little is done to arrest the practice: despite the new law, passed amid much backslapping by the PPP, 14 out of 29 of Sindh’s districts have seen child marriage shoot up. Closely connected is the twin evil of forced conversions, where an entire racket of organised crime has devastated the Hindu community — kidnapping girls, converting them, and coercing them into marriage. Ageless thugs like Mian Mithoo, long reported to be involved, are free and thriving.

Then come one too many cavemen at the centre: consider, in 2019, the bizarre push-and-pull between PTI MNAs for and against setting a minimum age for marriage. Ironically, the members were marking the 90th anniversary of Mr Jinnah’s speech on the same subject, when he expressed himself as clear as day.

Yet another minefield is the law: despite the minimum age being 16 per certain acts, the courts are quick to point to legal ambiguities, and not punish even those flouting the lowest limit.

It’s time now that both the courts and legislature took their cue from two excellent, recent verdicts: first, the Federal Shariat Court’s Justice Syed Mohammad Anwer ruled last October that setting a minimum age for a girl’s marriage wasn’t un-Islamic. Then came Justice Babar Sattar’s landmark judgement last week in ‘Mumtaz Bibi vs Qasim’, which cut away all confusions: it distinguished the colonial regime tiptoeing around repulsive customs, as opposed to the responsibilities of a free and democratic state; it held that Pakistan adopting the UN Convention on the Rights of the Child walled off all legal precedents that came before it; and it mandated that the minimum age for marriage is 18 without exception — to try and indemnify sexual abuse via marriage contract is to “make a mockery of the concept of the rule of law”.

For the sake of millions, these verdicts must stand. As for the critics, Mr Jinnah concluded in 1929, “…If we are going to allow ourselves to be influenced by the public opinion that can be created in the name of religion when we know that religion has nothing to do with the matter, I think we must have the courage to say, ‘No, we are not going to be frightened by that’.”

Though that applies to so much else here, the state can start by taking some courage. There’s much to change.

The writer is a barrister.

Published in Dawn, March 7th, 2022

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