Hina Hafeezullah Ishaq
There are already penal laws in place for giving a female in marriage as compensation and for exploitation and the like. In order to make the child marriage restraint law effective, the amount of fines for violation needs to be increased and so does the length of imprisonment
I just got off the phone talking to a friend who wanted to do a TV programme on underage marriages in Pakistan. Four years ago, I filed a habeas petition to recover a 13-year-old girl, ‘Kiran’, from the custody of her husband, who had confined her, subjected her to emotional and physical abuse and had refused to let her parents meet her. As I stood there at the rostrum, ‘Kiran’ was brought before the honourable court; I still remember the wave of horror and outrage that washed over me when I saw her. She was a malnourished, extremely frail child and was six months pregnant. Then I saw her husband: he was 40-years-old and looked even older, with wrinkled and leathery skin. The honourable court let ‘Kiran’ go after recording her statement and reprimanding her husband and father both for the atrocity committed.
After we left the court, I asked Kiran’s father, what in God’s name had possessed him to marry a mere child to a man thrice her age? His answer: his ‘Pir’ had told him to.
The standard age of majority in Pakistan is 18 years (unless computed under the Guardians and Wards Act; then it is 21 years), anyone younger than that is a ‘child’. However, the age of majority does not affect the capacity of any person to act in the matters of marriage, dower, divorce and adoption. The Child Marriage Restraint Act, 1929, currently in force in Pakistan, specifies the marriageable age as 18 years for a male and 16 years for a female. The Dissolution of Muslim Marriages Act gives the option of puberty to a female to seek the dissolution of her marriage, if she had “been given in marriage by her father or other guardian before she attained the age of 16 years, repudiated the marriage before attaining the age of 18 years”. The Pakistan Penal Code makes sex with a female under 16 years, whether consensual or not, an offence of rape.
Some organisations in Pakistan are seeking to increase the marriageable age of a female to 18 years; the same as that of age of majority. In theory it sounds good and probably logical to have 18 years as the standard age for majority, marriage, driving licence and eligibility to vote; I have always found it amusing that a female cannot have a right to cast a vote or drive a car until she is 18 years old, yet she can presumably be considered old enough or mature enough to choose a person in order to marry, have children, bear the responsibilities of managing a household, hoards of in-laws and in simple terms always be on tip-toe to do an elaborate balancing act, which irreversibly affects her own life as well as of her children.
According to international data, every year “13 million children are born to women under age 20 worldwide, more than 90 percent in developing countries”. The leading causes of mortality in such areas are childbirth and complications arising out of teenage pregnancy, which typically affects females between the age of 15 and 19 years.
The other side of the picture is the social context of this scenario. Pakistan boasts a population of 187 million, an estimated two-thirds of which lives in the rural areas. Nearly one-third of Pakistan’s population is estimated to be living below the poverty line. According to UN Fund for Population Activities (UNFPA) statistics (2007), 24 percent of young people ranged between 10-19 years. A considerable number of people live in one room homes, makeshift shelters and the like. Without prejudice to the effect of modern technology and a horrendous amount of exposure available via different modes of the electronic media, a majority of children in impoverished homes are raised in one room, shared by parents and children alike. The exposure of these children to activities that they should not be privy to is enormous. Unfortunately, these children mature early as compared to the relatively protected ones raised in relatively affluent households.
Keeping in view this particular environment, a persistent dilemma the parents of such girls are faced with is how to protect them. As these females mature, not only are they vulnerable to seduction but in fact become victims of various crimes perpetrated against them by relatives, acquaintances and by their employers and society in general. The only option that presents itself to parents in such circumstances is to marry them off, while they still can, respectably. Sometimes, the parents are constrained by receiving a good proposal for their girl, fearing that another might not come by, ever, so they give in even when they do not really want to marry her off early.
However, we have a problem on our hands when underage girls are forcibly given in marriage, either to compensate for a criminal offence or a civil dispute (badla-e-sulha, vani or swara), as a double marriage (watta-satta), to punish them for wanting to marry someone else or simply in some cases to get the ‘burden’ off their shoulders, especially if the female is an orphan.
Then there is another kind of problem: when young girls are seduced by men, causing them to elope. Sometimes these couples get married, at others the poor girls are raped or sold. When cases of such marriages come before the courts, sometimes the young age of the female has to be overlooked and the focus is on securing financial security for her. As preposterous as it may sound to some, one has to keep the social context in mind: no one is going to accept a girl who ran off back into their fold; her life is effectively destroyed if penal consequences are imposed. It is a delicate act of trying to dispense justice. However, in cases of rape and abduction, prosecution should be a must, but unfortunately sometimes the victim’s family is forced to marry her to the rapist as it is presumed no one else will have her.
In most parts of the west the age of majority is 18, whereas the age of consent is mostly around 16 years. The UK and the US, like most other countries, allow the marriage of a person between 16 and 18 years with parental consent. The common practice in vogue to marry underage girls in Pakistan is to simply change their age at the time of nikah. Since there are no birth certificates still in a large number of cases, this is relatively easy to do, with everyone, including the ‘nikah-khawan’, willing to look the other way.
Amendments need to be made to the Child Marriage Restraint Act, 1929, but not by raising the marriageable age of a female. What needs to be done is to make parental/guardian’s consent necessary if a female is between 16 to 18 years to prevent exploitation of young girls. There are already penal laws in place for giving a female in marriage as compensation and for exploitation and the like. In order to make the child marriage restraint law effective, the amount of fines for violation needs to be increased and so does the length of imprisonment, so that it has a deterrent effect.
Awareness and education are the keys to combating any vice in society, along with swift and effective deterrent punishment for violation of any law. The problem that needs to be understood is that there is a difference in perception of how we, the educated, affluent and urbanised view our teenagers and how the uneducated, poverty-stricken and mostly rural-based people see them; for us our teenagers or adolescents are just extensions of their childhoods, whom we tend to protect and molly-coddle, whereas for the others, their teens are precursors to being adults if not already perceived as adults, given the amount of responsibilities these children are tasked with and the level of maturity they have already attained.
Underage marriages are indeed a menace but then so is blind promotion of a particular mindset, which is oblivious to the ground realities and seeks to function in a vacuum.
The writer is an advocate of the high court