LAHORE: Declaring the definition of “child” in the Child Marriage Act, 1929 unconstitutional, the Lahore High Court has directed the Punjab government to revise the provincial version of the legislation and end the age-based distinction between males and females.

“The definition of child in the 1929 Act while making a distinction on the basis of age, is not based on an intelligible criteria having nexus with the object of the law,” Justice Shahid Karim observed in a judgement passed on a public interest petition.

The petition by Azka Wahid challenged the definition of “child” contained in the 1929 Act as amended and substituted by the Punjab Child Marriage Restraint (Amendment) Act, 2015, to criminalise the child marriage in the province.

The petitioner was represented by Barrister Hamza Shahid and Barrister Daraab Wali.

The lawyers urged the court to declare section 2(a) of the 1929 Act unconstitutional on the ground that offend the equality clause in the Constitution.

The section 2(a) reads “child” means a person who, if a male, is under 18 years of age, and if a female, is under 16 years of age. The judge noted that a brief filed by the advocate general office made a reference to Islamic jurisprudence regarding the age of puberty as the traditional interpretative toolkit.

The judge said medical science, too, supports the notion of a female attaining puberty at an age which materially differs from that of a male. But that does not necessarily lead to granting a licence in the hands of a parent or guardian to marry off a female child, he maintained.

“The right question to ask is whether notwithstanding the appearance of signs of puberty differently in males and females, the government is empowered to prescribe a minimum age for marriage or not?,” the judge remarked.

The judge rules that there is no prohibition in the Constitution on prescribing a minimum threshold for marriage and, therefore, to criminalise child marriage.

He says the theme of the 1929 Act is to “restrain the solemnisation of child marriage.”

However, the judge notes that the purpose has been muddled by providing different ages for males and females for which there is no intelligible criteria.

The report by the advocate general states several factors behind the legislation, saying that in Pakistan, many children are victims of child marriage and the burden of child marriage is disproportionately borne by girls as opposed to boys.

It says that early marriage excludes children from education and makes them vulnerable to various health complications.

It points out that as many as 21 percent of girls are married before the age of 18 years and three percent before reaching 15 years in the country, according to Unicef database 2016, based on Demographic Health Survey of Pakistan 2012-2013.

The report also quotes the recent Demographic Health Survey of Pakistan (2017-2018), which says although on an average the age of marriage of girls is increasing, but a deeper analysis of the data shows that child marriage at the age of 15 years has also increased from 1.6 to 1.8 percent.

Justice Karim observed that this makes a compelling case based on physiological and sociological factors for the executive to step up and take effective measures to counter the debilitating effect of child marriage.

“We, as a nation, woefully lag behind in all major indicators and half of our population cannot be lost to child-bearing at an early age, while its potential remains untapped,” the judge laments in his judgement.

He maintained that equal opportunities for females mean equal restraint on marriage as the males.

The judge says the 1929 Act (and its amendments) is a step towards the fulfillment of duty by the state under Article 35, which provides that the state shall protect the marriage, the family, the mother and the child.

Justice Karim observed that the mandate of Article 35 was not lost on the legislature while enacting the 1929 Act. But, for some reason, which cannot be discerned, unmistakable partisan slant has muddled the clear stream of policy objectives animating the 2015 amendments.

He notes that the difference in ages (of males and females) in the definition of “child” was left unchanged in the 2015 amendments and it does not comport with the mandate of Article 25, which ensures that all citizens are equal before law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex.

“I have no doubt in my mind that the definition of child, in its present form, in 1929 Act, is discriminatory,” Justice Karim remarked.

The judge declared that the words in section 2(a) of the law, “if a male …and if a female is under 16 years of age” are unconstitutional and of no legal effect.

“They are struck down,” he ruled.

The judge ordered the Punjab government to issue a revised version of the 1929 Act (based on this judgment) within the next 15 days and also upload that version on its website for information.

Published in Dawn, April 13th, 2024