Pakistan: Reasonable restraint

Hina Hafeezullah Ishaq

It is not hard to understand that if we focus on educating our girls, send them to college and gear them towards becoming financially independent and career oriented, we automatically delay their marriages and pregnancies

In September last year, members of the Sindh Assembly adopted a unanimous resolution recommending that the provincial government declare 18 years as the minimum age for marriage. There are reports that the Sindh government is all set to table a bill that falls in line with this.

The Child Marriage Restraint Act 1929 governs the minimum age for marriage in Pakistan. For the purposes of marriage, a “child” is defined as a person who, if a male, is under 18 years of age, and if a female, is under 16 years of age, whereas a “minor” is a person of either sex who is under 18 years of age. The law, among others, provides for punishments for marrying a child and for solemnising a child marriage, though it is unfortunate that no amendments were made in the quantum of fine or the duration of imprisonment in the past. A male adult who contracts a child marriage is punishable with simple imprisonment that may extend to one month or with a fine that may extend to Rs 1,000, or with both. Any person who performs, conducts or directs any child marriage is punishable with simple imprisonment, which may extend to one month, or with a fine that may extend to Rs 1,000, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage. A parent or a guardian is liable for punishment where a minor contracts a child marriage and any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punishable with simple imprisonment, which may extend to one month, or with a fine, which may extend to Rs 1,000, or with both. The law states: “It shall be presumed, 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.”

The standard age of majority in Pakistan is 18 years though it varies under several statutes. The Pakistan Penal Code (PPC), for the purposes of offence of rape, provides that sexual intercourse with a girl who is under 16 years of age, with or without her consent, amounts to rape. Under the highly discriminatory zina laws, an ‘adult’ means a person who has attained, for a male, the age of 18 years or for a female, the age of 16 years, or has attained puberty. The age of puberty varies under different sects, ranging from nine to 15 years. According to Muhammadan law, the end of the 15 years, or the attainment of puberty, is deemed to be the age of majority. The Dissolution of Muslim Marriages Act 1939 gives a woman the right to obtain a decree for dissolution of her marriage on various grounds, including what is termed as the ‘option of puberty’. Provided that the marriage has not been consummated, a woman who has been given in marriage by her father or other guardian before she attained the age of 16 years can repudiate the marriage before attaining the age of 18 years.

The Convention on the Rights of the Child (CRC) defines a ‘child’ as “every human being below the age of 18 years”. The Convention on the Elimination of Discrimination Against Women (CEDAW) states that the “betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”

There is no uniform set minimum legal age for marriage across the world. Most countries allow marriages from 15 years to 18 years. Most developed nations provide for parental consent and/or court orders for persons who wish to marry before attaining the prescribed legal age. Apart from the legal age for marriage, most nations, not Muslim ones, have a legal ‘age of consent’. This refers to the minimum age required where legal consent can be given to an act of a sexual nature without it constituting an offence. So, while a ‘child’ in these nations can legally have sexual relations with another person, he or she may not be allowed to marry until 18 years of age, unless the parents consent or a court allows it. Child marriages are indeed a grave issue — not only does it impact the health of a girl but it also places a huge amount of psychological burden on her. As I have written many a time before, we are still shy in talking about sexual reproductive health, let alone educating our children about their bodies. In countries like our own, poverty, lack of access to education and basic healthcare facilities are a major contributing factor towards child marriages; add to that our undesirable social customs. Our constitution provides for compulsory education until 16 years of age. It is not hard to understand that if we focus on educating our girls, send them to college and gear them towards becoming financially independent and career oriented, we automatically delay their marriages and pregnancies. While I am firmly against child marriages — and by that I mean the marriage of a person under 16 years of age — I simply cannot agree with raising the minimum age of marriage to 18 in isolation. First of all, we do not have a legal age of consent in Pakistan as our laws do not allow for sexual relations outside marriage. Day in and day out, the courts are flooded with cases of girls who have eloped and married of their own free will and consent — while I vehemently believe that any person who marries a girl under 16 years of age should be tried for rape — I cannot say that the girls who are over 16 should be punished for marrying whom they choose. If we try to do that, would that not constitute a violation of their fundamental rights to their body, life and liberty?

In a repressed society like Pakistan, would they not be tried and convicted under the zina laws? Amidst the clamour that is being made to raise the minimum age to 18 years, has anyone paused to take into account that changes would need to be made to other statutes as well? The definition of rape would need to be amended to 18 years with or without consent and so would the criminal liability under the controversial zina ordinance to 18 years for a female, dispensing with ‘puberty’. The age for the option of puberty would need to be raised as would the one for interim custody under the guardianship law, which hands over custody of minor girls under 16 years to mothers, to 18 years. Has anyone considered making an amendment to the PPC, if the fear is to protect against forced child marriages? There is a provision, which criminalises forced marriage of a woman but would not an amendment to it serve the purpose?

Why not raise the minimum age of marriage to 18 years, amend all the relevant laws but provide for court orders for persons aged 16 to 18 years of age who wish to marry of their own will and consent? Would that not be reasonable restraint?