Yes, I do

Addressing child marriage in Pakistan is challenging primarily because of its links to tradition and religion. Social norms are strongly institutionalised in communities, affecting the decision-making of parents and girls…

By Wajahat Ali Malik
March 30, 2021

society

The terms child marriage, early marriage and forced marriage have some common characteristics. Child marriage and early marriage mostly refer to a marriage in which one or both spouses are under 18 years old. However, early marriage is also sometimes used to describe a marriage in which one or both spouses are 18 or older, but without their free and full consent. For example, the marriage of a 19-year-old who is not physically or emotionally mature, or who does not have sufficient ability to make decisions or choices, would be considered an early marriage. Whereas, forced marriage is a marriage in which one or both spouses are unable to give full, free and informed consent about marriage, regardless of their age. Forced marriage can also refer to a union in which one or both spouses are unable to end or leave the marriage. Because, in most countries, since children are not considered able to give legal consent, all child marriages are sometimes considered forced marriages. However, many instances have been reported in which two adolescents under the age of 18 have married each other voluntarily.

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Child, early and forced marriage is a human rights violation and is not in line with several international and regional agreements, goals, including Universal Declaration of Human Rights, Convention on the Elimination of Discrimination Against Women (CEDAW), Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage, Convention on the Rights of the Child (CRC), African Charter on the Rights and the Welfare of the Child, Inter-American Convention on Human Rights, United Nations Sustainable Development Goals (SDGs), etc. International laws call for a uniform age of marriage for both the boy and girl and emphasise the importance of free, full and informed consent to marriage. For example, the CRC recommends that the minimum age of marriage be 18 years, while CEDAW obligates States to ensure, on the basis of equality between men and women, the right to freely choose a spouse and parties enter into marriage only with their free and full consent. Similarly, in the UN Sustainable Development Goals, one of the goals of ‘Gender Equality’ (Goal 5), set the target to “eliminate all harmful practices, such as child, early and forced marriage by 2030”. 193 countries around the world, including Pakistan, have pledged to achieve this goal by 2030.

Child, early and forced marriage place children at high risk of violence, exploitation, and abuse and deprives them of their fundamental right to childhood, education, health and opportunity. It is a global problem which affects both girls and boys, but it affects girls disproportionately, especially in the South Asia region, including Pakistan. South Asia has the highest rate of child marriages in the world. Almost half (45 per cent) of all women aged 20-24 reported being married before the age of 18 and almost one in five girls (17%) are married before the age of 15. According to UNICEF State of the World’s Children, 2017 report, 18% of girls in Pakistan are married before their 18th birthday and 4% are married before the age of 15. 5% of boys in Pakistan are married before the age of 18. Pakistan ranks at number six in the world, where a girl child is married before the age of 18.

Child, early and forced marriage in Pakistan occurs mostly in rural and low-income households, where education is least important and its highest prevalence is in the Sindh province, where 72% girls and 25% boys become victims of it. Similarly, the practice is also common in Southern Punjab, Khyber Pakhtunkhwa (KPK), former FATA, Gilgit-Baltistan (GB) and Balochistan. In the tribal areas of KPK, 99% girls become victims of this menace. Furthermore, the rate of forced child marriages in Pakistan is increasingly high. A huge proportion of young girls is forced to marry under the age of 18 due to numerous ‘socio-economic’, ‘socio-cultural’ and ‘religious minorities’ reasons in the country. According to the UK’s Forced Marriage Unit, in 2017, 439 cases of child forced marriage were reported in Pakistan, which ranked it at the highest amid top four ‘focused’ countries, followed by Bangladesh, Somalia and India.

Pakistan’s current legislation on child, early and forced marriage sets different and discriminatory legal marriage ages for boys and girls. The Child Marriage Restraint Act, 1929 was the primary law which was adopted in Pakistan in 1947 after independence and is still applicable in ICT, KPK, Balochistan, GB and AJK areas. This law sets the legal marriage age at 16 for girls and 18 for boys which is against the internationally accepted level of age of marriage. Punjab and Sindh have enacted their own laws to address child marriages. Sindh has enacted an exemplary legislation on this subject and sets 18 years of age for both boys and girls and prescribes strict punishments for perpetrators, aiders and abettors of underage marriage. It also declared solemnising of underage marriage as a cognizable, non-bailable and non-compoundable offence. Punjab retained the legal marriage age at 16 for girls and 18 for boys and introduced a clause declaring underage marriage a bailable offence. The Federal government has tried to amend the child marriage law five times but only once received success in making amendments. It still does not address the child, early and forced marriages completely and does not set the marriageable age for girls at 18. Similarly, the governments of KPK, Balochistan, GB and AJK are also unable to enact any law on these lines to date.

Although, legislation exists to address child, early and forced marriages in Pakistan, but its enforcement and interpretation is missing, because Pakistani courts often apply Shariah (Islamic Law) to decide such cases. They interpret that any girl irrespective of her age, who has gone through puberty or experienced her first menstrual cycle is eligible for marriage.

The writer is a human rights lawyer and an advocate of the High Court, based in Islamabad. He can be reached at adv.wajahat.aligmail.com

This article was originally published in February 2021 issue of SouthAsia Magazine.

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