The Islamabad High Court (IHC) on Tuesday outlawed marriage for anyone under the age of 18, in a ruling hailed by activists as major progress towards ending child marriage.
The IHC bench headed by Justice Babar Sattar ruled that children below the age of 18 could not be married. It also said that a girl below the given age cannot even solemnize a free-will marriage.
The court said that physical changes do not attribute to the attainment of puberty.
The court also directed to send the matter of ambiguity on marriage age in the Muslim Family Laws Ordinance before the cabinet division and parliament.
Justice Sattar gave the landmark ruling while hearing a petition filed by Mumtaz Bibi seeking the custody of her 16-year-old daughter Sawera Falak Sher from the Darul Aman (women’s shelter). The court ordered the Station House Officer of the Golra Police Station in Islamabad to hand the child’s custody to her mother. Mumtaz Bibi had filed an abduction case in May 2021, but her daughter had told a court that she had contracted a free-will marriage.
The Child Marriage Restraint Act 1929, mandates that girls cannot marry before the age of 16 and boys must be 18. However, in Sindh province, the provincial government raised the age to 18 for both sexes in 2014, with child marriage made a punishable offence.
In 2017, Section 498-B was added to the Pakistan Penal Code to stop compelled marriages. It stipulates imprisonment of at least three years and a fine of 500,000 rupees.
The number of reported cases of forced conversion in the country rose fourfold in 2021 as compared to the previous year, according to the Centre for Social Justice (CSJ).
“Around 70 percent of girls converted forcibly and married during the past year were under 18 years of age. In 2020, 15 cases were highlighted in the media but in 2021 some 60 cases were highlighted,” he said.
In Oct. 2021, the Federal Shariat Court (FSC) held that setting the minimum age limit at 16 years for a girl’s marriage under the Child Marriage Restraint Act (CMRA) 1929, would help girls get at least a basic education.
The observation came as the FSC dismissed a petition and categorically declared that setting any minimum age limit for girls’ marriage by an Islamic state was not against Islam.
In April 2019, the Senate passed, with a majority vote, a bill to amend the Child Marriage Restraint Act 1929.
According to the amendment, marriage under 18 years can lead to a fine of Rs200,000 and three years of strict punishment for facilitators.
Senator Sherry Rehman presented the bill to be passed unanimously, however, Senator Ghafoor Haidri raised an objection, saying the bill should be sent to the Council of Islamic Ideology (CII) for further deliberation.
Following the debate on the bill, the Senate chairman sought voting and passed the bill with opposition of five votes.
The Senate Standing Committee for Human Rights had approved the Child Marriage Restraint (Amendment) Bill 2018, on Jan 30.
CHILD RAPE IN GUISE OF CONVERSION
Church leaders and civil society activists have repeatedly called for legislation against sexual exploitation of underage minority girls in guise of religious conversion and marriage.
On July 1, 2021, the Lahore High Court sent Nayab Gill, a 14-year-old Christian from Gujranwala, with her alleged 30-year-old Muslim abductor. Both the trial court and the high court rejected her official birth documents and accepted her verbal claim in court that she’s over 18 years old.
Nayab’s parents have appealed to the Supreme Court of Pakistan with help from the moderator bishop of the Church of Pakistan for their daughter’s recovery.
The Supreme Court in July 2021 had also rejected an appeal filed by Church of Pakistan Moderator Bishop Azad Marshall challenging the rejection of his constitutional petition seeking the top court’s intervention in the forcible conversion and underage marriage of Christian girls.
Bishop Marshall’s petition stated that courts accord a degree of permanence to the abduction and forcible conversion of Christian girls by allowing them to marry Muslims without ascertaining the pressures coming to bear on girls when they make declarations of consent before trial and high courts, nor taking into account their intellectual, emotional and social maturity.
It added that such declarations of consent are not investigated to ascertain whether they are voluntary or result from threats, psychological abuse and conditioning and fear of social stigma and rebuke.
A parliamentary panel on minorities had last year forwarded key legislation to the government on curbing forced conversions of minority girls, recommending that only adults should be allowed to change religion and only after appearing before a senior district judge.
The government of Prime Minister Imran Khan, however, strongly opposed the legislation. Federal Minister for Religious Affairs Pir Noorul Haq Qadri categorically stated that the government is opposed to a restriction on religious conversion before the age of 18 years.
“If someone aged 14 years wishes to convert to some other religion, they could not be stopped,” the minister commented during a meeting of the Senate parliamentary committee on minorities’ rights on July 14.
Qadri added that if someone wished to change their religion before reaching age 18, it was their choice, and that “a Nikah [Islamic marriage] or marriage before 18 was another discussion.”