For the last around a decade successive provincial governments and civil society members have been grappling with the question as to what should be the marriageable age for a female in Khyber Pakhtunkhwa. So far, the provincial government has failed to replace the colonial-era Child Marriage Restraint Act, 1929, under which the prohibitory age of a female for the purpose of marriage is 16 years.
Recently, Pakistan Peoples Party MPA Ms Nighat Orakzai submitted in the KP Assembly Secretariat a private member bill – Khyber Pakhtunkhwa Child Marriage Restraint Bill, 2021 – which proposes that for purpose of marriage a child shall mean a person, male or female, who is under 18 years of age.
On government level, different committees continued to debate the issue for last many years. On several occasions it was agreed by the government representatives as well civil society members that the prohibitory age for females should also be raised to 18 years. However, controversy continues to persist over the issue as religious circles, on national and provincial levels, are averse to any such changes in the existing law.
A coalition government of Awami National Party and PPP, which ruled the province from 2008 to 2013, had failed to legislate on the issue.
Even in Jan 2013, an ANP MPA, Ms Munawar Sultana, had tried to table a bill for amending the law so as to enhance the sentences mentioned therein along with raising the prohibitory age of female child. However, she had to face resistance from other MPAs, including her party members, who termed her bill – Child Marriage Restraint (Amendment) Bill, 2013 – as “NGO-centric”.
The subsequent government of Pakistan Tehreek-i-Insaf in the province (2013-2018) also dragged its feet on the issue as deliberations continued to be held without any legislation.
Presently, a technical committee on government level has been engaged in consultation trying to evolve some consensus over the matter.
It was in March 2014 that the Council of Islamic Ideology (CII), a constitutional body, had ruled that laws related to minimum age of marriage were against Islamic teachings and that children of any age could get married if they had attained puberty.
The Child Marriage Restraint Act (CMRA) 1929, which is applicable to Khyber Pakhtunkhwa, defines a child as a person, if a male, is under 18 years of age, and if a female, is under 16 years of age.
In past, a working group constituted by the KP Child Protection and Welfare Commission had deliberated the issue and in a proposed draft of the CMRA it had mentioned the prohibitory age both for male and female as 18 years.
Several of the members of the working group were of the opinion that to end discrimination in the existing law it was necessary that age of both male and female should be given as 18 years.
The proposed draft of 2016 bill provided for punishment up to three years imprisonment and fine of Rs45, 000 for the offence of child marriage.
Presently, the CMRA 1929 provides punishment of simple imprisonment up to one month or fine of Rs1,000, or both, for contracting a child marriage by a male above 18 years of age; for performing or conducting a child marriage; and for parent or guardian involved in child marriage.
The present law provides that no court shall take cognizance of any offence of child marriage except on a complaint made by the concerned union council or by such an authority empowered by the provincial government for that purpose.
The KP Child Protection and Welfare Act, 2010, also provides for protection against child marriages. However, its section 30 states that protection against child marriage and discriminatory customary practice shall be provided in accordance with federal laws in vogue on the subjects.
Following the passage of the Constitution (Eighteenth amendment) Act, 2010, several of the subjects, which were previously in the Concurrent Legislative List and both the centre and the provinces were empowered to do legislation in that regard, were brought into the exclusive jurisdiction of the provinces.
The issue related to “marriage and divorce”, which was previously in the Concurrent Legislative List, has now been a provincial subject. Similarly, child right is also a provincial subject for legislation purpose.
Sindh was the first province to replace the colonial CMRA by enacting the Sindh Child Marriage Restraint Act, 2014, in June 2014. Through that law the prohibitory age of a female was enhanced to 18 years from existing 16.
The said law enhanced punishment for contracting a child marriage to maximum three years rigorous imprisonment along with fine. This law has made the offence, cognizable, non-compoundable and non-bailable.
Interestingly, the bill submitted in KP Assembly by Nighat Orakzai is almost identical to that of the Sindh CMRA except a few minor changes.
The Punjab Government enacted the Child Marriage Restraint (Amendment) Act, 2015, in March 2015, but instead of repealing the CMRA 1929 it made several amendments in that law. However, the controversial issue of changing the prohibitory age for marriage was not touched.
Under those amendments, imposition of a six-month prison term and fine of Rs50, 000 was introduced for a person contracting child marriage.
Not only in KP, this issue also continued to linger on in the centre. A private member bill of Senator Sherry Rehman was passed by Senate in 2019, but so far the same has not been passed by the National Assembly. Moreover, a bill moved by an MNA of PTI, Dr Ramesh Kumar Vankwani, was also turned down by a standing committee of National Assembly in 2019. In both those bills the movers had proposed raising prohibitory marriage age for a female child to 18 years.
Legal experts on the subject believe that the 1929 law is an outdated one and needs to be replaced at the earliest. They say that not only early enactment of the proposed law is required in the province rather the same should also be properly implemented.