Monday June 17, 2024

Child Marriages (Restraint) Amendment Bill, 2019

By Aitzaz Ahsan
May 06, 2019

The Subject Bill has recently been introduced in the National Assembly as a Private Member’s Bill by Mr. Ramesh Kumar. It proposes to fix eighteen years as the minimum age for a lawful marriage.

The Bill has invoked the ire of some worthy members who have termed the fixing of a minimum age of marriage as an un-Islamic proposal.

Islam, they say, does not allow the prescription of any minimum age for the contract of marriage. According to this opinion, a Wali (or male guardian) can marry off his ward (girl or boy) at any age starting from the day she/he was born. And the child would have no right to defy the Wali or repudiate the marriage. That accordingly, is the Islamic edict and cannot be tampered with by Parliament.

The Bill has rent asunder alliances and parties in Parliament. The Government Party, the PTI, has suffered the most. Two cabinet members have recorded their categorical opposition to it. One is significantly the Minister of Religious Affairs.

The other has announced that he will resign if compelled to vote for the Bill. Yet a third Minister, Mrs. Shirin Mazari, has boldly taken her colleagues on. She stood up to vote for the Bill.

Thus it in unclear where the Government stands on this private member’s Bill. Not so the PML-N. Its ranks have shown unanimity in absolute timidity. Fearing a Mulla backlash none of its members, even the champions of human rights, stood up in favour of the Bill. They remained dug into their seats.

Only the Pakistan People's Party, led by Chairman Bilawal Bhutto Zardari, MNA, stood unanimously, firmly and openly in the Bill’s favour. This was not a surprise. When the Bill had passed through the Senate, it was Senator Sherry Rahman of the PPP who led all her senators to unanimously support the Bill.

This is a matter regarding which one may ask: what would the Quaid-i-Azam, Barrister Mohammad Ali Jinnah have done faced with opposition based on an argument and sentiment invoking religion in such matters? But that question need not be asked. We actually know what he did. And he was exactly 90 years ahead of us: 1929.

The Child Marriages Restraint Bill (later a1929 Act by the same name) was moved in 1927 in the Legislative Assembly when Mr. Jinnah was its member. That Bill was also moved by a Hindu, Rai Haridas Sarda. It was also known as the Sarda Bill. Even then it created a controversy because of which it remained pending in the House for two long years. It proposed the adoption of a minimum age for contracting of marriage, and provided penalties for guardians giving away their minor wards in marriage.

That Bill also invoked the ire of fundamentalists, Muslim and Hindu, throughout India. The House Petitions’ Committee received as many as 707 petitions against the Bill, signed by no less than 72,725 persons! A fatwa had also been pronounced by 74 leading ulema condemning the Bill. Only four petitions, signed by a mere 10 persons, were received in support of the Bill.

Inside the House, the opposition came from other Muslim members including Nawab Sir Sahibzada Abdul Qaiyum from the NWFP, Mr A. H. Ghaznavi from Dhaka, Mr Muhammad Yamin Khan from UP, and Maulvi Muhammad Shafi Daoodi from Tirhut. The Maulana was the most vocal: he believed that if the Bill was adopted, it would be the most cruel encroachment on the rights of the Mussalmans. Those opposed to the Bill cried that ‘religion was in danger’ on account of the proposed law.

Barrister Jinnah was undeterred by the opposition. His words were clear and unambiguous. It is essential to quote some these verbatim:

“I cannot believe that there can be a divine sanction for such evil practices as are prevailing, and that we should, for a single minute, give our sanction to the continuance of these evil practices any longer. How can there be such a divine sanction to this cruel, horrible, disgraceful, inhuman practice that is prevailing in India?”

Jinnah was not unaware of whom he was opposing. Nor was he insensitive towards that fundamentalist opposition; Voltaire-like, he was prepared to let them retain their sentiments and convictions. But he was not prepared to buckle under on a matter of principle. He was firm when he observed that:

“Always the social reformer is face to face with this orthodox opinion having behind it this conviction, this sentiment, this feeling which is perfectly understandable and to some extent legitimate. But are we to be dragged down by this section for whom we have respect, whose feelings we appreciate, whose sentiments we regard; are we to be dragged down and are we to be prevented in the march of progress? In the name of humanity, I ask you.”

“And if we are going to allow ourselves to be influenced by the public opinion that can be created in the name of religion, when we know that religion has nothing whatsoever to do with the matter—I think we must have the courage to say: ‘No, we are not going to be frightened by that’.” (Emphasis added.)

It may be difficult for a Pakistani today, exposed as he is to a selective rendering of Jinnah’s statements, to believe that these are indeed Mr Jinnah’s own words. The theme that there were some matters of state that had nothing to do with religion would continue in his speech on the eve of Independence to the Constituent Assembly of Pakistan on August 11, 1947. Hence, I call that latter speech ‘the Grundnorm speech’. But his firm view on fixing a minimum age for the marriage of young people was evident as early as 1929.