A court in Karachi has ordered the Sindh government to constitute a medical board to determine the age of Dua Zehra – the teenage girl who went missing from Karachi in April and was recovered from Punjab earlier this month where she allegedly contracted a free-will marriage, but rights activists and minority leaders say the federal and provincial governments must amend and ensure strict implementation of laws restraining child marriage as cases spike.
“The child marriage restraint laws have failed to check child marriages in Pakistan, putting minor girls belonging to both the Muslim and minority groups at risk of sexual exploitation. It’s high time the government intervenes in the issue,” says journalist Asher John.
John has reported extensively on human rights issues, including blasphemy, forced conversion and marriages of underage minority girls etc. According to him, the police and judiciary in Punjab and Sindh provinces are acting as facilitators of underage marriages, especially if it involves children from the minority communities.
“The Dua Zehra case is quite similar to cases of underage minority girls who are considered married to their abductors simply on the basis of their verbal statements regarding their age, often given under duress, even though the official and family documents belie the claims,” he says.
Dua Zehra claimed in court that she is 18 years old, hence legally an adult, whereas her family claims she is 14 and it has NADRA [National Database Registration Authority] documents to prove it.
“However, the Sindh High Court disregarded Dua Zehra’s NADRA birth documents after a medical test it ordered stated that she was 17 years old. Since her marriage was conducted in Punjab, where the legal age for marriage for girls is 16, the SHC allowed Dua to go with her 21-year-old ‘husband’, Zaheer Ahmad.
“This happens in almost all cases of underage marriage because the courts do not accept the legal birth documents. The question is who will ascertain a girl child’s age: NADRA records or medical tests?”
In Pakistan, the Child Marriage Restraint Act of 1929 (which was later amended by Section 12 of the Muslim Family Law Ordinance 1961) set the minimum age for a female to get married at 16 and for males at 18. In 2014, the Sindh Assembly through the Sindh Child Marriage Restraint Act brought the age of females at par with males: 18 years. In 2015, Punjab Assembly passed the Punjab Marriage Restraint Act 2015 by amending the Child Marriage Restraint Ordinance 1971. This amendment mainly focused on imprisonment and fines but the age limit remained the same – 16 for girls.
FORCED CONVERSION & MARRIAGE OF MINORITY GIRLS
Minority leaders are particularly concerned by the judiciary’s handling of cases of underage marriages involving minority girls.
On Sept 17, 2020, almost two months after her disappearance, a Christian pastor’s daughter, Saneha Kinza Iqbal appeared in a Lahore court with her Muslim husband who is twice her age. The teenager claimed to have embraced Islam and got married of her free will. On the marriage certificate, her age was stated as 20, contrary to her school and baptism certificates which show her to be 16.
“Almost every other day we hear heart-wrenching stories of our minor girls being forcibly converted and married to their abductors on basis of fake conversion and marriage certificates. Courts outright reject the NADRA documents of the children, and in most cases, do not even order medical tests to determine the child’s age,” says Bishop Dr Azad Marshall, the president of the Anglican Church of Pakistan.
Marshall filed a constitutional petition in the Supreme Court in Jan 2021 seeking court intervention in the issue of minority children who are forced to marry and convert to Islam. His petition and a subsequent appeal, however, were turned down with directions to bring a specific case. In view of the court’s decision, the church leader provided legal aid to a poor Christian couple who sought to challenge a Lahore High Court verdict allowing their 14-year-old daughter, Nayyab Gill, to remain in the custody of her Muslim “husband.” Filed in the Supreme Court in July 2021, his appeal has yet to be taken up by judges.
“Enough is enough! The superior judiciary must direct its subordinate courts to act in accordance with the laws, especially in light of the recent judgement passed by Justice Babar Sattar of the Islamabad High Court on child marriages,” he said, adding that strict imposition of the child marriage laws would also curb the increasing trend of religious conversion of minority girls.
While UNICEF declares marriage before the age of 18 a “fundamental violation of human rights”, Justice Sattar in March this year also ruled that any marriage involving a minor girl was illegal.
According to Sattar’s judgement, a girl under the age of 18 could not marry out of her own will and her relatives could also not proceed with an agreement to the same effect.
The court further stated that the legal age for puberty was 18 years and the same could not be decided on the basis of physical changes that emerge at any age.
“The IHC ruling is a landmark judgement but it is unfortunate that the authorities concerned have done little to safeguard the rights of underage girls,” says Pakistan’s leading human rights lawyer Advocate Saiful Malook.
The lawyer said that even though Islamic laws allow marriage of a minor girl after she gets her first period, the marriage has to be validated by the girl’s guardian.
“In no way can any court of law endorse an underage marriage unless it is supported by the girl’s guardian,” he says. “Marriage is governed by the Contract Act, wherein no minor can enter into a contract or agreement without the explicit approval of her guardian.”
Malook said that forced conversion of minority girls and underage marriage was a major problem and legislation in this regard was long overdue.
“There is also a need to declare a uniform age limit for marriage across the country,” he says.
Pakistan’s National Commission on Rights of Child says child marriage is a form of rights violation, which takes away a child’s right to safe and healthy childhood and education, depriving him/ her of economic opportunities and social and political empowerment.
Child marriage is a global phenomenon where 12 million girls are married before the age of 18 years. At least one child marriage occurs after every two seconds. Though Pakistan is a state party to several conventions, some 21 percent girls in Pakistan are married before their 18th birthday while three percent before the age of 15.
According to UNICEF, Pakistan is the sixth country having the highest number of child brides in the world.