Dua Zehra Case: What does the law say about child marriages in Pakistan?
Dua Zehra went missing from her Karachi home in the Golden Town area of Malir on the 16th of April, after which her family filed an FIR. The police launched investigations into the matter. The FIA got involved in the matter after it emerged that the girl was browsing the internet to look for court marriage and other related things.
The matter took a twist on Monday the 25th of April when it emerged that she was safe and sound in Punjab and had gotten married. In a statement, Dua Zehra said:
I came to Lahore and tied the knot with Zaheer Ahmed and I’m living happily. I was not kidnapped. I left home because my family wanted me to marry someone else against my will and did not bring any precious things with me. My father shared my age wrong. My family was torturing me. I am not 14. I am an adult; my age is 18.
Dua Zehra is one of the three girls who went missing from Karachi during the past couple of weeks, and all of them have been found married in Punjab cities. The other two girls are:
- Nimra Kazmi, aged 15-16, went missing on the 20th of April and was found in Dera Ghazi Khan.
- Deenar, aged 25, a resident of Soldier Bazaar, was recovered from Vehari.
If the families’ claims regarding the young girls’ ages are true, those who have ‘married’ them and their abettors are liable to face criminal proceedings over child marriage.
The Constitution of the Islamic Republic of Pakistan on Child Marriages
The constitution vows to eliminate all forms of exploitation and protection of the law as an inalienable right of every citizen. It will undertake special provisions for women and children, as needed. As part of fundamental rights, it further elaborates that any inconsistency of any law or any custom or usage having the force of law with these rights will be treated as void; and no person will be deprived of life and liberty.
The principles of policy in the Constitution protect the Muslim way of life, individually and collectively. These principles are recommendatory and not part of fundamental rights. Moreover, the Constitution qualifies that the validity of any action or law shall not be called into question on arbitrary interpretations of not being in accordance with policy principles. These principles also aim to discourage parochial, racial, tribal, and sectarian prejudices. They bind the state to ensure full participation of women and children in all spheres of national life; and protect marriage, the family, mother, and the child.
Further legal and policy guidance emanates from Pakistan’s international commitments. Pakistan is a signatory to several international commitments, such as the Convention on the Rights of the Child (CRC), Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and has nationally co-opted SDGs that commit to ending child marriages by 2030.
The National Legal Framework of Pakistan regarding Female Children presents a Complex Picture
Legal frameworks concerning children’s issues are spread out in different statutes:
- the Majority Act 1875 (fixing age of majority at 18 years),
- the Guardianship and Wards Act 1890 (which provides for the appointment of legal guardians for children under the age of 18); and
- the Child Marriage Restraint Act 1929 (banning marriage between children and children where a child is defined as a male person under 18 and female under 16 years).
According to the Majority Act 1875, a “minor” is a person who has not attained the age of 18 years. However, under the Zina (Enforcement of Hudood) Ordinance 1979, adult or “major” means a male person who has attained the age of 18 years and a female person who has attained the age of 16 years or has reached puberty. Similarly, the age of consent for sexual activity and marriage is 18 years for males and 16 years for females. The CMRA of 1929 from the colonial era sets a discriminatory standard whereby the marriageable age for boys is 18 years and 16 years for girls. The punishment is set at up to 6 months and a fine of PKR 50,000.
The main document for law in Pakistan is the PPC. THE CMRA is a criminal law that does not adjudicate personal rights. Whereas marriage is covered under civil law in family courts, the CMRA 1929 is covered under criminal law and elaborated under the Cr.P.C. Marriage and annulment is dealt with under family law governed by the CPC. Therefore, upon its enforcement perpetrator of child marriage can be punished, but the validity of marriage remains as it does not annul a contracted child marriage. This severely hinders the potential of the law to be a deterrent.
What law deals with Child Protection issues, then?
A 2003 study compiled 78 pieces of federal and provincial legislation related to children and observed that neither the constitution nor any single law directly covers child protection issues. This review did not include shari’a law in its own right; however, it did cover laws relating to maintenance, guardianship, custody of children, inheritance, and Islamic punishments, all of which are formulated and implemented according to the provisions of Islamic shari’a. There are approximately 18 federal laws that cover matters relating to children, none of which have been re-enacted by provincial governments in their entirety.
Child Marriage in Pakistan
Harmful socio-customary practices and traditions majorly perpetuate child marriage in Pakistan. The background to these societal (mis)perceptions synonymize honor with a chaste woman; place the male head of the family as the custodian and guardian of his family honor, i.e., women; and let child marriage be used as an instrument of reconciliation or the settlement of disputes.
Additional harmful practices that also lead to child marriage are:
- Swara /Wani
- Badal Swara/ Badal-i- Sulah
- Walwaar / Sar Paisa (bride money)
When girls are used as an object of reconciliation or peace collateral, their age is of no significance, and in instances, it could even be an unborn girl child. These harmful traditions and practices stand criminalized (310-A Cr.P.C), indicating the state’s position on recognizing and protecting children and girls. The Prevention of Anti Women Practices (Criminal Law Amendment) Act 2011 outlines punishments for social practices like Vani, Swara, or Budla‐i‐Sulh, wherein girl children and women are peace collateral to settle personal, family, or tribal disputes. Harmful practices include Pait likhi (marrying girls off before they are born or very young), and Ghag has also been criminalized.
The Senate of Pakistan passed the bill to amend CMRA 1929 – titled CMRA – Amendment 2019. It proposed to raise the marriageable age for girls to 18 years old along with stricter punishments for breaking this law. The reasoning behind the amendment read:
Poverty, illiteracy, [and] anti-human rights socio-cultural practices are factors for the prevalence of child marriage. Early marriage leads to early conception, which ultimately affects the health of teenage girls. Typically enormous pressure to bear children is put on child brides.
The bill, upon introduction to the National Assembly (NA), despite the support of the house, was referred to the Council of Islamic Ideology (CII) for opinion at the behest of the treasury benches at the ministerial level. The CII advised initiating awareness campaigns against harmful practices perpetuating child marriage instead of passing legislation. The NA Committee could not generate enough members’ support, and the proposed bill was rejected.
Post Devolution under the 18th amendment, the provinces were to legislate while re-enacting the CMRA 1929 in Punjab, Khyber Pakhtunkhwa (KP), and Sindh. The provincial government of Sindh re-enacted the CMRA in 2013 and brought parity in the marriageable age to 18 years for both boys and girls; increased the period of imprisonment to a minimum of two years, and raised the fine to between PKR 0.5 – 0.7million. Legislation in Balochistan continues to lag.
The Punjab Assembly promulgated the Punjab Child Marriage Restraint (Amendment) Act 2015, which now stipulates harsher punishments for child marriages and imposes liability on the Nikkahkhawan and the child’s guardians. Under-age (under 16 years) and forced marriage are punishable crimes and a complaint regarding underage marriage can be registered with the police, union council, and a judicial magistrate. Punitive measures include:
- Punjab CMRA 2015: Any person marrying a girl of fewer than 16 years of age and the person conducting such marriage, including Nikkah Registrar, shall be liable for imprisonment up to 6 months and a fine of PKR 50,000/-
- PPC S-310-A & 498-C: Customs like Vani and marriage instead of compromise, or marriage with the Holy Quran are illegal, liable for imprisonment for 3 to 7 years and fine of Rs: 500,000/-
- PPC 498-B: A person forcibly marrying a girl against her will is liable to be punished with imprisonment for 3 to 7 years and a fine of PKR 500,000/-
- The legal age of marriage is 18 years for boys and 16 years for girls as per the Child Marriages Restraint Act (CMRA) 1929 in Pakistan.
Most marriages in KP comply with the 16 years of legal age for girls. However, it isn’t easy to ensure identification and confirmation of the legal marriageable age of 16 years. Moreover, the verbal Nikkah being a norm does not require documentation. The police, more so in KP, treat it as a private matter with a patriarchal Pakhtunwaali mindset.
The Social Welfare department has been drafting the Khyber Pakhtunkhwa Child Marriage Restraint Bill (CMRB), 2019, to replace the redundant Child Marriage Restraint Act, 1929. The proposed bill is expected to raise the marriageable age to 18 years and institute severer punishment for the Nikkah registrar, including monetary fines and imprisonment. It proposes to ban verbal Nikkah and make the CNIC mandatory for Nikkah and marriage registration. It also proposes mandatory birth registration and, above all, removes all indemnity clauses.
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