Eight-year-old Zahida was married to Dilshad, 17, by her father Abdul Rasool in exchange for Dilshad's sister, whom the father wanted to marry. Can anybody call this a marriage? And one can only thank the media for pointing it out, before Abdul Rasool could marry Dilshad's sister.
This is obviously not an isolated case, and child marriages amongst children — and girls being married to adults — are a regular feature in our society. This is happening in a state whose founder introduced the Child Marriage Restraint Act 1929 as a private members bill in the British Indian Legislative Assembly. He himself married an under-18, and thus perhaps knew the hazards of such marriages.
We must also give our colonial masters the credit for introducing certain laws to protect the female segment of the populace. Female infanticide was one such custom that was prevalent in certain parts of India, and which was banned.
Girls were put to death at birth by some parents because of the possible failure to find them a husband might bring disgrace to the father.
A related custom was to marry children at a very young age. This applied equally to Hindus and Muslims. The reasons were many, including domestic and sociological causes, like desiring to perpetuate the family name by marrying the son early; by marrying the daughter early to escape the discredit caused to the family by the presence of a grown-up maiden; or by the desire of the mother to marry her son early so that she may sooner obtain possession of a daughter-in-law in whom the mother could inculcate habits of obedience and who could share the domestic chores with her.
Some even married their young daughters to the Holy Qur'an, or an idol, sword, dagger, arrow or a tree so that they may not appear unmarried to conquerors or their Creator.
Statistics with regard to child marriage are mind-boggling. According to the 1901 census, for instance, 121,500 boys and 243,500 girls under the age of five years were married. Between the ages of five and 10 years the figures were 760,000 and 2,030,000 respectively.
There were no less than 1,277,000 widowed persons under 20 years of age in 1901, of whom 914,000 were females; of these, 6,000 widowers and 96,000 widows were less than five years of age; 37,000 widowers and 96,000 widows between five and 10 years of age and 113,000 widowers and 276,000 widows between 10 and 15 years of age.
Remarriage for these young widowers and widows was unthinkable, if not impossible. In fact many high-caste Hindu widows were of the opinion that they would prefer suttee to the life of a widow, as it was almost hell.
It was in order to control this menace that the Child Marriage Restraint Act was introduced by the Quaid-i-Azam, and was subsequently enacted in October 1929 with effect from April 1, 1929. This Act XIX of 1929 still remains in force, and extends to the whole of Pakistan. This means that it applies to both Muslim and non-Muslim citizens of Pakistan, regardless of whether they are resident in Pakistan or elsewhere.
The purpose of the act is to restrain the solemnisation of child marriages. A child was originally defined in the act to mean a “person who, if a male, is under 18 years of age, and if a female, is under 14 years of age”. The Muslim Family Laws Ordinance effective since July 15, 1961 changed the age of the girl child in the act from 14 years to 16 years.
The act, after being amended by the Muslim Family Laws Ordinance, states that whoever being a male above 18 years of age, contracts a marriage with a girl child, shall be punishable with simple imprisonment extending up to one month, or with a fine extending up to Rs1,000, or with both.
Additionally, whoever conducts or directs any child mar
riage, defined as marriage to which either of the contracting parties is a child, shall be punishable with simple imprisonment extending up to one month, or a fine extending up to Rs1,000, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.
Similarly, any person having charge of the minor contracting a child marriage — whether as parent or guardian or in any other capacity — lawful or unlawful,
â€¢ who does any act to promote the marriage;
â€¢ permits it to be solemnised;
â€¢ negligently fails to prevent it from being solemnised;
is punishable with simple imprisonment extending up to one month, or with a fine extending up to Rs1,000, or with both, provided that no woman shall be punishable with imprisonment. For purposes of this section of the act, it will be presumed under law — unless and until the contrary is proved — that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised.
No court other than magistrate of the first class can take cognizance of, or try, any offence under the act. However, even he cannot take cognizance after the expiry of one year from the date on which the offence is alleged to have been committed; and unless, except in Punjab, a complaint is made by the union council within whose jurisdiction a child marriage is or is about to be solemnised, or if there is no union council in the area by such authority as the provincial government may in this behalf prescribe.
In cases where the court is satisfied from information laid before it through a complaint or otherwise that a child marriage is about to be solemnised, the court may issue an injunction against it. No injunction, however, can be issued unless the court has previously given notice to the person concerned, and has afforded him an opportunity to defend himself.
Disobedience of the injunction order is punishable with imprisonment extending up to three months, or with a fine extending up to Rs1,000, or with both, provided that no woman can be punished under this section of the act.
The provisions of the act are simple but have failed to a great extent in restraining the solemnisation of child marriages. This is partly due to sociological reasons but also in view of the weak nature of the provisions of the act.
The difference in the age of the male and female child in the act is discriminatory, and appears to be in contravention of Article 25(2) of the Constitution of Pakistan, which says that “there shall be no discrimination on the basis of sex alone”. The justification for this difference in ages of a male and female child perhaps is based on Muslim Personal Law, which is interpreted by some to imply that a girl can be married upon attaining puberty.
In addition, the sentences and penalties that could be imposed under the act are light and are hardly relevant today. These penalties were introduced more than 60 years ago, and there is obviously a need to revise them upwards. In any case, although no statistics are available on the subject, few convictions have taken place under the act.
This is partly due to the light nature of the maximum penalties and sentences that could be imposed; and partly due to the cumbersome procedure of the courts.
However, the most important reason that the act has failed to check child marriages is the repeated judgments of our courts, including the Supreme Court, that child marriages — despite the act — do not become criminally liable under the act. As a result, the courts frequently condone child marriages on the grounds that a female has the capacity to contract marriage on attaining the age of puberty.
Child marriages result in many other tragic consequences. Child wives frequently fall ill and in many cases die. Children born to them are often feeble.
The marital lives remain unhappy and child wives lack happiness due to their lifetime inability to support their lot.
A case has now been registered on court orders on behalf of complainant Perveen, mother of Zahida, against the four accused, Abdul Rasool (Zahida's father), Dilshad (Zahida's husband, who is a minor), Mohammad Siddiq (Dilshad's father) and Qari Naqeeb Ali Shah (the Qazi who performed the nikkah).
The FIR has been registered under Sections 48 and 63 of the Sindh Children Act, 1955, which is a bailable offence and is punishable with two years imprisonment.
However, police could have simultaneously registered the case under the Child Marriage Restraint Act, 1929.
There is obviously a lacuna in this respect in Pakistan's laws. There is a need to make the offence punishable with harsher penalties, particularly by severe monetary penalties, and by empowering the courts to restrain such marriages, prior to solemnisation, and making sex with any under-18 girl an offence, which has been done up to the age of 16 through an amendment in the PPC in 2004.
* The author is an advocate of the Supreme Court of Pakistan, and is a board member of SPARC.