In a significant development, the Supreme Court of Pakistan on Tuesday directed the government to submit its response on the issue of forced conversion and forced marriage of underage minority girls, as criticism grows over the protection of religious minorities in the country.
A two-judge bench comprising Justice Syed Mansoor Ali Shah and Justice Ayesha Malik gave the directions while hearing a petition challenging the Lahore High Court’s (LHC) decision to send 13-year-old Christian girl Nayab Gill with her Muslim ‘husband’ two years ago.
“I filed a petition in the Supreme Court in August 2021 against the high court’s decision to send Nayab with 30-year-old Saddam Hayat while rejecting her parents’ plea for the custody of the minor girl.
“The petition was pending in the court for two years during which the girl reunited with her family after escaping from her abductor’s captivity. In today’s hearing, the court noted that though Nayab had returned home there was a need to find a permanent solution to this issue,” the family’s lawyer Advocate Saif Ul Malook said.
The counsel said that the court sought a reply from the government after he highlighted the evidence in Nayab’s case, and questioned the disconnect between the penal laws and Sharia over the concept of ‘adulthood’.
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“We brought the court’s attention to the fact that courts do not admit official birth documents and supporting evidence as proof of the victim’s age. Instead, the judges accept claims of the victims that they are of majority age and can marry off their own free will,” Malook said.
In Nayab’s case, the LHC dismissed her official birth documents showing she was 13, and instead accepted her claim that she was 19 years old and had married Hayat, a married father of four children, after converting to Islam of her own free will in Gujranwala in May 2021.
While Pakistani law recognises intercourse with a girl below 16 years of age with or without her consent as rape punishable by death, courts have repeatedly held that the marriage of an underage Muslim girl cannot be termed invalid because Islamic law holds that a consenting girl who has reached puberty can marry.
The lawyer said that Nayab was not sui juris at the time of her alleged Islamic marriage with Hayat, therefore the marriage was invalid. Sui juris is a Latin term meaning “in one’s own right”. More specifically, in order to be considered sui juris, one must have full legal rights and must not be under the power or guardianship of another person.
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“The Federal Shariat Court has already ruled in favour of the Sindh Child Marriages Restraint Act of 2013, observing that fixing a minimum age for marriage was in accordance with injunctions of Islam as laid down in the Holy Quran and Sunnah,” said Malook.
“Moreover, Islamabad High Court Justice Babar Sattar issued a verdict in March 2022 barring marriage of girls under the age of 18, even of their own free will. The ruling also prohibits parents from marrying off girls aged less than 18 years.
“In light of these verdicts, we are hoping that the Supreme Court will direct the government to set the minimum age of marriage to 18 across the country. This will also serve as a strong deterrent against forced faith conversions of underage minority girls,” said the renowned human rights lawyer.
COURT REKINDLES HOPE
The appeal’s outcome is significant in view of the serious concerns of the country’s religious minorities, especially Christians and Hindus, over the growing incidents of forced conversion and marriages of minor girls of their communities with their Muslim abductors.
Welcoming the court’s decision, Church of Pakistan’s President Bishop Azad Marshall said it had “rekindled hope for the protection of our young girls”.
“Government officials are not willing to accept the fact that these conversions are in reality a bid to cover abduction and child rape,” he said, adding that police and lower judiciary were facilitating child marriages and faith conversions instead of acting against the perpetrators.
READ MORE: Supreme Court must ensure justice, protection of minority rights, says church leader
On July 14, 2021, Supreme Court Justice Mushir Alam rejected an appeal by Bishop Marshall calling for a constitutional petition to protect Christian girls from forced conversion and forced marriage. According to Justice Alam, the petition was rejected because it did not address an individual case or grievance.
“Our aim was to draw the Supreme Court’s attention to this heinous crime being committed under the cover of religion. When we heard about Nayab’s case, I decided that we’ll take it to the Supreme Court to get justice and protection not only for her poor family but for all vulnerable communities,” the senior church leader said.
He added that the Pakistani Christian community was looking at the Supreme Court for the protection of their daughters. “I appeal to Christians across the world to pray for this crucial case, especially for the judges so that they have the wisdom and courage to do the right thing.”
Nayab’s father Shahid Gill said his family was overjoyed when they heard about the Supreme Court’s decision to dig deeper into the issue.
“We praise God for appointing judges who are willing to stop these atrocities against young children. We have suffered a lot in the last two years but there’s now hope that Saddam will be punished for his crime and, more importantly, thousands of young girls will be saved from such predators” Gill said.
Gill said that Nayab had fled after Saddam was imprisoned in a case related to the abduction of his first wife.
“Nayab contacted me after she escaped from his house. Soon after reuniting with my daughter, I decided to relocate my family to another city to protect her from Saddam and his family.
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“Nayab hasn’t yet been able to come out of the trauma she suffered during her captivity. She has told us that Saddam and his brothers tortured her and threatened her with firearms before every court appearance, forcing her to give favorable statements,” he said, adding that Saddam’s free on bail now and is searching furiously for Nayab.
“Our lives are under serious threat but under no circumstances will I ever let them take my daughter away again. The SC must ensure our protection!” said Gill, who works as a tailor on a meager daily wage.
Gill also lauded Bishop Marshall for supporting the family in their search for justice, saying the church leader’s intervention had bolstered their resolve to get their daughter back.
Every year, dozens of girls – mostly teenagers – from the Hindu community mainly in the southern province of Sindh, and minority Christians in Punjab fall victim to this practice, facilitated by religious leaders and groups, according to activists.
READ MORE: The plight of non-Muslim women in Pakistan
They say Pakistan’s court system enables offences against religious minority girls and young women “by accepting, without critical examination, fraudulent evidence”.
“Family members say that victims’ complaints are rarely taken seriously by the police, either refusing to register these reports or arguing that no crime has been committed by labelling such abductions as ‘love marriages’,” they said.
In October 2021, a parliamentary committee rejected an anti-forced conversion bill after the Ministry of Religious Affairs opposed the proposed law despite protests by legislators belonging to minority communities.
In 2016, Sindh province passed a law declaring forced conversion a punishable offence carrying a life sentence, but the governor refused to ratify the legislation.
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