Umar Sajjad Chaven

Rabia Mustafa

In the case Mst. ALISHBA BIBI v. the STATE and 7 others reported as (PLD 2020 Islamabad 28), the Islamabad High Court issued the following directions to the authorities concerned to curb the evil of child marriages from the society as well as to ensure the protection of rights of minorities as guaranteed under the Constitution:

  • The District Administration/licence issuing authority of Nikah Registrar shall enlighten the Nikah Registrars about the terms of Child Marriage Restraint Act, 1929 as well as punishment for violation of the terms of Child Marriage Restraint Act, 1929.
  • If any complaint is filed against the Nikah Registrar in terms of Child Marriage Restraint Act, 1929, who solemnizes marriage for facilitating and registering any marriage of any person against her or his wishes, the Chief Commissioner, Deputy Commissioner, and the Chairman Union Council shall revoke the licence of the Nikah Registrar and submit a complaint before the competent Court for criminal prosecution of the Nikah Registrar and any other person, who is involved in such kind of crime.
  • The Chief Commissioner, Deputy Commissioner, and the Chairman Union Council are also under legal obligation not to issue any licence to any such individual as Nikah Registrar, who is involved in such type of malpractice and till the conclusion of the said complaint by the competent Court, his licence shall be suspended till the final judgment of the Trial Court and if the Nikah Registrar is civil servant, departmental action shall also be taken against him.
  • All the Nikah Registrars or other persons, who solemnize marriages are under a legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage.
  • The Family Court in terms of The Family Courts Act, 1964 is also bound to give its findings in such type of cases and if a Family Court comes to the conclusion that the marriage has been registered in violation of law, the Family Court shall refer the complaint to the concerned Magistrate to proceed in terms of Child Marriage Restraint Act, 1929 against the persons, who have solemnized and registered such marriage.
  • IG, Police, all the DPOs, and the SHOs are under obligation to protect the rights of the minorities by all means and if any complaint is filed by any of the family members or by parents of the minor that he or she has been forced to convert his or her religion, such complaint shall be taken up on priority basis and statement of the effected shall be recorded by the Magistrate at first instance as such kind of practice will bring bad name to the state of Pakistan.
  • Federal Government shall fulfil its constitutional obligation to protect the minors as well as children in terms of international covenants and commitments and to establish Child Protection Bureau and Child Protection Homes to provide protection to such kind of minors, who are exposed to cruelty, inhuman behaviour, and infringement of child rights by family members, caregivers or their employers if any.
  • The NADRA Authorities as well as the Registration Authorities of the Government while issuing Marriage Registration Certificate are bound to link Birth Registration Certificate to their system in order to avoid any conflicting age contents and avoid legal complications.
  • Every birth entry, as well as marriage certificate, should be recorded in the NADRA registration record and in case of a conflict of the date the subsequent document shall not be registered unless valid order from the competent Court or the authority is not placed before the relevant officer.
  • Mere submission of oral entries for the purpose of age should not be accepted unless valid documentary proof of Union Council of birth certificate is produced.
  • The Court in the said judgment also held that where a complaint reflects solemnization of marriage of a minor, police officials are bound to register criminal case in terms of Child Marriage Restraint Act, 1929.

In a case, Farooq Omar Bhoja v. Federation of Pakistan reported as PLD 2022 Federal Shariat Court 1 the Hon’ble Federal Shariat Court held:

  • It is the duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it is.
  • Enactment like setting a minimum age for marriage is not against Quran and Sunnah.

In another important case, Writ Petition N0. 4227/ 2021, Mst. Mumtaz Bibi v. Qasim and others, the Hon’ble Islamabad High Court held:

  • Pakistan is under obligation to enforce the provision of UNCRC.
  • Marriage is a civil contract and free will to enter into a contract is a prime consideration. No person below the age of 18 years is competent to enter into a valid contract, agreed with free consent.
  • As per the latest amendments in Pakistan Penal Code, 1860, alluring a person below the age of 18 years for any sexual activity, even for marriage, falls under the ambit of sexual abuse and rape which must be punished as per law.

Bearing in view, Pakistan’s constitutional obligations, international commitments, and conflict in several laws, it is of vital importance that Child Marriage Restriction Act, 1929 may be amended and the following prominent characteristics must be added:

  • Enhancement of minimum age for marriage
  • Criminalizing and enhancement of punishment for conducting, facilitating, and solemnizing Child Marriage.
  • Simplify the procedure to file a complaint before the police or court.
  • Court’s power to grant injunctions against child marriage without notice.

Umar Sajjad Chaven Legal Reforms & Legislative Drafting Expert at the School for Law and Development.

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

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