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August 13, 2015

‘Flawed law makes child marriage punishable, but not illegal’


August 13, 2015

The “political pragmatism” of the stakeholders involved in the passage of the provincial child marriage restraint law left a major lacuna in the legislation.
Though the Sindh Child Marriage Restraint Act 2013 recognises conducting the marriage of anyone below 18 years of age a non-bailable offence and penalises with at least a three-year jail time and hefty fines for it, it does not declare the marriage itself void.
Under the law, marriage below 18 years is punishable but still legal.
At the time it was drafted, the stakeholders feared a severe backlash from the religious community. They were worried that if such marriages were declared null and void, it would result in thousands of cases of divorce or khula and open up a Pandora’s Box of controversy.
However, it resulted in a serious loophole in the legislation. Though the law criminalises underage marriage, it does not question its validity.
Even if the retrospective effect was pragmatically ignored, failing to make future marriages of people younger than 18 is something which eventually makes the implementation of the law that much harder for the government itself.
Maliha Lari, a lawyer, said under religious law, puberty marked the eligibility for a girl’s marriage. She commented that religious values often ended up superseding the law in court in practice when the nikahnama was in reality a social contract between two consenting adults.
“If you can’t get a driving licence and an identity card before 18 years, how can one agree to a lifetime contract?” she said.
Speaking at a consultation on the implementation of the provincial child marriage restraint law organised by DevCon and Alliance Against Child Marriages, Lari also called for the regulation of marriage registrars.
She also demanded that nikahnama should be amended by including spaces in it for filling in the identity card and medical/age certificate numbers of the bride and groom.

Highlighting the issue from the aspect of police investigation, SSP Investigation South Faizullah Korejo said the biggest achievement of the legislation was bringing the matter from inaccessible family courts to judicial magistrates in every district.
He pointed out that under the law, a judicial magistrate could not only decide but also take notice of any incident and intervene to stop it.
He said the legislation had a strong outreach in terms of punishments applicable on all three major perpetrators involved in child marriage - the parents or guardian, the marriage registrar and the groom. He said by making the offence non-bailable and non-compoundable, it also ensured to exert a bit of the required social pressure.
Moreover, he said, the law was also commendable in the way that it allowed flexibility to the trial court to decide the case.
The official said usually the appeals of lower trial courts were heard by the high court, but in this instance, the law ensured that same court reviewed the case and also allowed intervention by third parties, provided that the court found that it was being done in good faith.

Civil society
On the other hand, Iqbal Detho, a known civil rights activist, called on his own fraternity to come out of their bubble of isolation.
He said while the government had put in place the structure to curb child marriages, the mechanism needed to make it effective was lacking.
He called on civil society members to improve coordination among themselves. Only then, he added, could the civil society work to improve coordination between government agencies, especially those on the district level.
He pointed out that the provincial child protection authority and child protection units established in districts needed to be made functional to enable proper implementation of the legislation in question and urged the civil society to work together in this regard.
He said the government also needed to spare funds for these administrative bodies so it could enable their effective functioning and, subsequently, the implementation of the law.

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