Sharafat A. Chaudhry, Rabia Mustafa

Constitutional Provisions

The Constitution of Pakistan guarantees a meaningful life and considers protection of children as their fundamental right. Children like adults have been constitutional guarantee of protection, welfare and development. Article 9 of the Constitution guarantees the right to life and liberty (of the children). Article 9 was interpreted vociferously by the august Supreme Court of Pakistan in Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693) as a meaningful right to enjoy life and not just to exist. Article 35 of the Constitution holds that, ‘the State shall protect the marriage, the family, the mother and the child.’ Having said that, the Constitution sets responsibility on the state to take measures and provide for enjoyable and protected life to every child. Thus, the Constitution implicitly prohibits any act which amounts to limiting the opportunity of development (like child marriage in Pakistan) of a child and endangers her or his protection.

Age of Marriage in Pakistan

Legislative provisions or child marriage laws in Pakistan defining the marriageable age under the federal and provincial laws are:
(a) Section 60(1) of the Christian Marriage Act, 1872
(b) Section 2(a) of the Child Marriage Restraint Act, 1929
(c) Section 2(a) of the Sindh Child Marriage Restraint Act, 2013
(d) Section 2(a) of the Punjab Child Marriage Restraint (Amendment) Act, 2015
(e) Section 4(a) of the Sindh Hindu Marriage Act, 2016
(f) Section 4(b) of the Hindu Marriage Act, 2017
(g) Section 3(a) of the Punjab Sikh Anand Karaj Marriage Act, 2018

The concept of marriageable age has been developing over the years. Legal provision for Christian marriageable enacted nearly 150 years ago, still exists in the statue book. Section 60(1) of Christian Marriage Act, 1872 provides that, “the age of the man intending to be married shall exceed sixteen years, and the age of the woman intending to be married shall exceed thirteen years.” However, there has been huge debate over the age of marriage. During the various consultations held to reform the Christian marriage laws during last decade, the Christian religious authorities and experts agreed to reform the law as per standards defined in other updated marriage laws in the country for the prohibition of child marriage in Pakistan.
For prohibiting child marriage in Muslims, section 2(a) of the Child Marriage Restraint Act, 1929 defines age of marriage as at least 16 years of age for girls and 18 of age for a male. However, section 2(a) of the Sindh Child Marriage Restraint Act, 2013 raised this bar even for Muslim community and prohibited any marriage below the age of 18 years.
The other laws, enacted during recent years, applicable to Hindu and Sikh Communities also provide that age of the parties contracting marriage shall not be less than of 18 years.

Statutory Criminalization

The Criminal Law (Third Amendment) Act, 2011 which is often referred to as the Prevention of Anti-Women Practices Act criminalized such norms and practices which were based on gender discrimination and harmful for women and girls. Through the said Act, in the Pakistan Penal Code, 1860, section 310A (punishment for giving a female in marriage or otherwise in badal-e-sulah, wanni or swara) was substituted and in a Chapter XXA ‘Of Offences against Women’ comprising of 498A (prohibition of depriving woman from inheriting property), 498B (prohibition of forced marriage) and 498C (prohibition of marriage with Holy Quran) were inserted.
Later, through Criminal Law (Amendment) Act, 2017 a provision was inserted to amend further Section 498B to provide enhanced punishment for forced marriage with a female child or a non-Muslim woman. Previously, the punishment of forced marriage under Section 498B was imprisonment for seven years or for a term which shall not be less than three years and a fine of five hundred thousand rupees. Through the insertion of the said provision, if the victim is a female child as defined in the Child Marriage Restraint Act, 1929, or a Non­-Muslim woman, the accused shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years and shall also be liable to fine which may extend to one million rupees.

Continued…

Sharafat A. Chaudhry is a human rights lawyer and the founding Chairperson of the School for Law and Development.

Rabia Mustafa is a Senior Research Fellow at the School for Law and Development.

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