A three-member bench of the Supreme Court (SC) will on Thursday (Nov 11), consider an appeal against the Lahore High Court’s verdict granting custody of a 14-year-old Christian girl to a Muslim accused of kidnapping, forcibly marrying, and converting her to Islam.
The appeal’s outcome is significant in view of the serious concerns of the country’s religious minorities, especially Christians and Hindus, over the increase in incidents of forced conversion and marriages of minor girls of their communities with their Muslim abductors and the incumbent government’s volte-face on a proposed legislation against this heinous crime.
Pakistan’s leading human rights lawyer, Advocate Saiful Malook, will appear on behalf of the father of minor girl Nayyab Gill, a resident of Gujranwala. The SC bench is headed by Justice Umar Ata Bandial and comprises Justice Mansoor Ali Shah and Justice Amin Ud Din Khan.
Advocate Malook told Kross Konnection on Wednesday that he had filed the appeal in the first week of August after being engaged by Moderator/President of the Church of Pakistan, Bishop Dr Azad Marshall, to represent the poor family in the apex court for the recovery of their minor daughter.
Advocate Malook said that in the appeal, he had challenged Justice Chaudhry’s ruling of declaring a minor child as a “sui juris” (having full legal rights and capacity) and handing her custody to her alleged abductor/husband instead of her father, who was her natural guardian.
The appeal also points to the fact that marriage in Islam is in nature a civil contract hence a minor cannot enter a civil contract under Section 11 of the Contract Act. It also questions the religion conversion of the minor child in view of Quranic injunctions that forbid forced conversion of faith, he added.
Advocate Malook said that according to Nayyab’s official birth certificate and school documents, she was born on October 16, 2007, however, the learned judge of the LHC had ignored this fact while declaring her as sui juris.
He added that the LHC verdict was also against an SC ruling which disapproved secret marriages, particularly of girls of tender age.
The senior lawyer said that Section 375 (v) of the Pakistan Penal Code categorically states that consent given by a minor female under the age of 16 shall be no defence and the act shall be treated as rape. Moreover, he added that the Child Marriage Restraint Act 1929, prohibits marriage under the age of 16, declaring it a penal offence.
Advocate Malook said the appeal also sought to draw the attention of the top court towards the exploitation and violation of fundamental rights of the minor child.
“I am quite hopeful that the august court will consider our appeal on merit,” he concluded.
‘CHILD RAPE IN GUISE OF CONVERSION MUST STOP’
Talking to Kross Konnection, the president of the protestant Church of Pakistan, Bishop Marshall said that he was extremely perturbed by the rise in cases of minor Christian girls being abducted, forcibly converted and married to their Muslim abductors.
“The Church does not oppose wilfull conversion of faith by adults but we cannot stay silent on the sexual exploitation of minor girls in the guise of conversion,” he said.
Bishop Marshall said that he had previously filed a constitutional petition in the Supreme Court in January seeking the top court’s intervention in the crucial issue but the petition and subsequent appeal were rejected on the grounds that we had invoked the extraordinary jurisdiction of the SC under Article 184(3) of the Constitution for redressal of an individual grievance.
“However, Justice Mushir Alam of the SC in his ruling on the appeal had stated that the apex court will consider the issue if a specific case was brought before it. Therefore, when Nayyab’s case came to my attention, I immediately decided to help the distressed family in recovering their child,” he said.
Bishop Marshall said that he hoped that the top court will not just administer justice to the victim family, but would also take into account how the police and lower judiciary were facilitating child rape under the guise of conversion.
“We were very hopeful when the government’s Human Rights Ministry prepared a draft bill against forced conversion, but the manner in which this important legislative proposal was rejected by the Council of Islamic Ideology and the Federal Religious Affairs Ministry has shocked and disappointed us,” he said.
The senior church leader said that he was appalled that the government had completely ignored religious and political leaderships of the minorities in the consultative process.
“It (the govt) did not even bother to ask us about our opinion on the clauses deemed contentious by the detractors of the draft bill. Moreover, claims made by several government leaders that forced conversion of minority girls is not taking place anywhere in Pakistan and is merely a western agenda to malign the country is akin to rubbing salt on our wounds,” the bishop said.
Bishop Marshall said that questioning the patriotism of Pakistan’s non-Muslim citizens whenever they raised genuine issues facing their communities does not bode well for national cohesion and unity.
“Instead of addressing our concerns, some vested elements start accusing minorities of being against Pakistan. Our immense contributions to nation-building and for the country’s defence do not need validation from such elements.
“Our concern here is to protect the girl child from sexual exploitation by criminals, regardless of the fact that she’s a Christian or Hindu. This must be dealt as a national issue instead of projecting it as an attack on religion,” he said.
‘ANTI-ISLAMIC, ILLEGAL, VIOLATION OF CONSTITUTIONAL RIGHTS’
On Sept 23, the Federal Ministry of Religious Affairs and Interfaith Harmony had returned the draft of the Anti-Forced Conversion Bill to the Federal Ministry for Human Rights after raising objections on several clauses of the proposed legislation.
A press statement released by the Religious Affairs Ministry had stated that it was opposed to the clauses related to the 18-year age bar on religion conversion, appearance before a judge, and a 90-day waiting period, saying these restrictions were anti-Islamic, illegal and violated the fundamental constitutional rights of an individual.
The bill had proposed that any non-Muslim, who is not a child, and is able and willing to convert to another religion will apply for a conversion certificate from an additional sessions judge of the area where he or she is residing.
The draft law highlighted that the application would have to include the name of a non-Muslim who is willing to change the religion, age and gender, CNIC number, details of parents, siblings, children and spouse (if any), current religion and the reason to convert to the new religion.
The draft law stated that the additional sessions judge would set a date for interview within seven days of receipt of an application for conversion, and on the date, the judge would ensure that the conversion was not under any duress and not due to any deceit or fraudulent misrepresentation.
After satisfaction, the judge will issue the certificate of change of religion.
The proposed law also awarded punishment between five to 10 years and a fine from Rs100,000 to Rs200,000 to any person who uses criminal force to convert a person to another religion.
While any person who was an abettor to a forced conversion would be liable to imprisonment from three to five years and a fine of Rs100,000.
It had been highlighted that the age of the person willing to convert his/her religion would be determined by either the child’s birth certificate, or school enrolment certificate, or Nadra B-Form.
“Only in the absence of such forms the child’s age may be determined on the basis of a medical examination,” the draft added.
The proposed law also stated that the case of forced conversion would have to be disposed of within 90 days by the court, while an appeal against conviction or acquittal of an offence under this Act could be presented before the respective high court within ten days from the date on which copy of the order passed by the Court of Session was supplied to the appellant.