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Sexual relationship with a minor under ‘cloak of marriage’ is abuse: judge

Taking cognisance of the underage marriage of a teenage girl, who left her home to marry a man of her choice in Karachi in January this year, a judicial magistrate has observed that any invitation or enticement to engage a child in sexual conduct even under the cloak of marriage would fall within the definition of sexual abuse.

Judicial Magistrate (South) Abdul Sattar said rape charges would be attracted in cases where a person sought to defend such conduct by stating that it was pursuant to a marriage contract executed by a girl under the age of 18 years or her parents or guardian at her behest.

He made these observations while accepting a charge sheet against Asim, purported husband of the girl, two witnesses to the alleged illicit marriage — Noor Muhammad and Muhammad Aqib — and Nikah Khuwan Ghulam Mustafa.

He ordered transfer of the case to a sessions court for their trial under sections 365-B (kidnapping, abducting or inducting woman to compel for marriage etc), 375-V (rape with or without her consent when she is under sixteen years of age) and 376-III (punishment for rape with a minor or a person with mental or physical disability) of the Pakistan Penal Code read with sections 2, 4 and 5 of the Sindh Child Marriage Restraint Act 2013.

Initially, a kidnapping case was registered at the Kalakot police station on the complaint of the victim’s uncle, who stated that his niece left her home on some pretext and later called her mother, informing her of her marriage with Asim. In her statement under Section 164 of the Criminal Procedure Code (CrPC), she denied being kidnapped by the accused, saying she married him of her own free will. Her ossification test, however, declared her to be 15 to 16 years of age.

The victim was taken into custody from the City Court premises when she arrived to record her statement in connection with her marriage, advocate Bahzad Akbar Gabol, who represented the complainant, told The News. He said she was now residing in a shelter home while the accused was out on bail.

“Once the court has come to the conclusion that a marriage contract involving a child under the age of 18 years is a contract prohibited by the law, which, even if executed by a child, is void ab initio, the question of treating the purported nikah-nama between accused Asim and the minor abductee has no legal effect under the law,” the magistrate further noted.

“Neither a child under the age of 18 can consent to engage in sexual conduct in any form nor can a parent or guardian of a child, contract a child out to engage in sexual conduct. A child is not a chattel that can be contracted out by trustee or guardian to engage in conduct that the child himself/herself cannot grant consent for. No consent can be granted on behalf of a child by a parent or guardian involving discharge of personal service by the child or engagement in conduct that is unlawful and prohibited, such as that required to be performed under a marriage contract.”

He pointed out that a girl below the age of 18 cannot be deemed competent to freely grant her consent to enter into a marriage contract merely because she manifests the physical symptoms of having attained puberty. “In view of provisions of the Muslim Family Laws Ordinance, 1961 and PPC, when read together, while being guided by principle of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child, and the family), the test for legal agency and competence of a girl is her biological age and not her state of physical and biological growth,” he added.

Source: The News