by Waseem Ahmad Shah in Dawn, December 28th, 2020
A recent incident of marriage of an 11-year-old girl to an adult man in Upper Chitral district has once again brought into focus the law prohibiting child marriages in the country especially Khyber Pakhtunkhwa.
On a complaint filed by father of the minor girl on Dec 22, the Chitral police arrested seven persons, including the bridegroom, a nikah khwan, and five witnesses to the nikkah (marriage contract).
The complainant alleged that the prime accused named Shakoor Ahmad was his relative and he used to visit his residence. He claimed that on Dec 19 his minor daughter went missing from home about which he came to know that she was lured and taken away by the accused Shakoor to another village. He alleged that nikah of his daughter was performed with the prime accused by a nikah khwan.
Initially, the FIR was registered under section 365-B (kidnapping a woman to compel for marriage) and 498-B (prohibition of forced marriage) of Pakistan Penal Code. Following verification of the age of the girl, the police also included provisions of Child Marriage Restraint Act, 1929, in the FIR.
While the colonial-era Child Marriage Restraint Act (CMRA), 1929, is a toothless law which fails to serve its purpose, the Khyber Pakhtunkhwa government continues to delay the enactment of a law for bringing drastic changes to the existing legislation.
Last year, tall claims were made by the provincial government after years of deliberations by stakeholders that the draft of a proposed law had been finalised and it would replace the CMRA 1929. It was claimed that in the draft of the Khyber Pakhtunkhwa Child Marriage Restraint Bill, 2019, the government had also finalised the most controversial issue related to the permissible minimum marriageable age for a female. However, after passage of over a year the proposed bill is yet to be brought before the assembly for enactment as a law.
The CMRA 1929, which is still 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. A working group constituted by the KP Child Protection and Welfare Commission continued to discuss the issue of prohibitory age of a male and female in the proposed law and finally it came to conclusion that the prohibitory age of marriage for both male and female should be 18 years.
In past, the Council of Islamic Ideology (CII), set up under Article 228 of the Constitution, had opposed raising the age for a female to marry from 16 years to that of 18 years and had declared it against injunctions of Islam.
In March 2014, the CII in its meeting 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.
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.
Furthermore, no court shall take cognizance of any offence of child marriage except on a complaint made by the concerned union council or by such authority empowered by the provincial government for that purpose.
Prior to the enactment of the Constitution (Eighteenth Amendment) Act, 2010, the issue related to “marriage and divorce” was in the Concurrent Legislative List of the Constitution and both the federal and provincial legislatures were empowered to legislate on it and in case of any conflict between the two laws the federal law had to prevail.
This issue is now a provincial subject and only the provinces are empowered to legislate over it.
Following the passage of 18th Constitutional Amendment, the Sindh province enacted the Sindh Child Marriage Restraint Act, 2013, which was published in the official gazette in June 2014. In that law, the prohibitory age of a female was enhanced to 18 years from the existing 16 years. The 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.
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 and in the definition of a female child the age given is 16 years.
Under those amendments, imposition of a six-month prison term and fine of Rs50,000 was introduced for a person contracting child marriage.
Like Pakistan, in both India and Bangladesh the colonial CMRA 1929 had remained in the field for many years. In Bangladesh, the 1929 law was replaced with the Child Marriage Restraint Act, 2017. In India, the Prohibition of Child Marriage Act, 2006, was notified in Jan 2007, through which the Indian CMRA 1929 was replaced. In both those countries now the prohibitory age for a male is 21 years whereas that of female is 18 years.
The Indian law provides a sentence of up to two years rigorous imprisonment and fine of one lakh rupees for the offence of a child marriage.
It includes appointment of a child marriage prohibition officer by the state government for whole of the state or for a particular area. The prohibition officer has to perform multiple duties, including to prevent solemnisation of child marriages by taking such action as he may deem fit; to collect evidence for the effective prosecution of persons contravening the provisions of this Act; to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, etc.
Experts on the subject say the provincial government should enact the proposed law at the earliest and take steps for its effective implementation.
https://www.dawn.com/news/1598231/view-from-the-courtroom-child-marriages-go-unchecked-as-govt-delays-new-legislation
