LAHORE : Can a minor have consent to marriage? Answer, no. Child Marriage Restraint Act 1929 defines child in case of a female as a person under 16 years of age. Section 375 and 376 of Pakistan Penal Code (PPC) unequivocally provide that children under the age of 16 cannot consent to sexual intercourse.
Muslim Family Law Ordinance (MFLO) 1961 deals with the registration of marriage but neither the act itself or the rules framed under it address the issue of marriage with a minor. The West Pakistan Muslim Personal Law Application Act 1962 was applicable on the question of marriage for the time being and could be relied on as a source of law. It is here that the interpretation of Dinshaw F Mulla on the subject was heavily relied on and his commentary has shaped case law to this day.
In para 251 of his commentary on Muslim Personal Law, Dinshaw F Mulla maintained that a female’s capacity to enter into a contract of marriage would be assumed if she had attained puberty. This proved to be rather problematic as the minimum age for a female to enter into a contract of marriage was already specified to be 16 years old under the Child Marriage Restraint Act 1929.
In Ghulam Qadir versus the Judge Family Court, Muree and Another (1988 CLC 113), the learned state counsel correctly concluded by saying that in view of the provisions of the Child Marriage Restraint Act, read together with the dissolution of Muslim Marriages Act, 1939, the legislative intent was clear that a girl under the age of 16 years could not enter into a contract for marriage.
It is immaterial whether the MFLO did not address the issue of a minor’s ability to marry where the same has expressly been barred by existing legislation. The only legitimate reason to ignore an existing statute is when it has been expressly repealed or omitted.
In Tariq Mahmood and Another Vs The State (2000 PCr.LJ 226), the learned Federal Shariat Court while adjudicating the question of marriage of a 13-year-old had held that where the female was not 16 years of age at the date of Nikkah and her attaining puberty could not be proven from the record, she would be deemed incapable of granting consent for marriage.
It is apparent that the Federal Shariat Court (FSC) in the aforementioned case did its best to protect the minor in question. Even though it is natural to assume that a 13-year-old girl has attained puberty, the FSC did not make that assumption. The court did not direct the defence to produce medical reports to confirm that the minor in question had attained puberty. It merely informed them via its final judgement that puberty would not naturally be assumed. It is worth noting that there is no appeal of a judgement by a Federal Shariat Court.
In Farooq Omar Bhoja vs Federation (Shariah Petition 1/2020) the learned Federal Shariat Court dismissed the claim that sections 4, 5 and 6 of the Child Marriage Restraint Act, 1929 were in contradiction with principles of Islamic Law. It observed that amongst Islamic Jurists there was disagreement over whether or not the Nikkah of a minor girl is permissible. However, it held that it was not un-Islamic for the state to determine the permissible age for entering into a contract for marriage.
Section 4 of the Act provides that a male married to a female under 16 years of age is punishable with Rs50,000 fine and imprisonment which may extend to one month.
Section 5 specifies punishment for the person solemnising a marriage of a minor which is a fine of Rs 50,000 and one month imprisonment. This is Nikkah Khawan and witnesses. The Nikkahnama (marriage certificate) is registered with the union council. Where there is a violation of the Child Marriage Restraint Act 1929, the union council should be legally obliged to report the submission of a Nikkahnama to the police. For omitting this legal obligation, the officer responsible for reporting the crime should be treated as an accomplice to the crime.
All evil that prevails flourishes solely because it is accommodated and tolerated by society. The layman must be encouraged to report and speak against the injustice of child marriage to ensure the welfare of children. Let these reports be anonymous.
The magistrate’s decision in Dua Zehra’s case is in contradiction with Federal Shariat Court’s verdict in Farooq Omar Bhoja Vs Federation in which the age restriction for contracting marriage outlined in the Child Marriage Restraint Act 1929 was effectively declared valid.
Consequently, Dua Zehra, whose parents maintain that she was born in 2008 and offer her B-Form and birth certificate as proof of their claim cannot be declared sui juris without confirmation of her age.