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November 29, 2020

High court orders investigation into another underage marriage

Karachi

November 29, 2020

The Sindh High Court (SHC) has directed the police to investigate the marriage of a 16-year-old girl, find out if any offence has been committed under the child marriages restraint act and take necessary action in accordance with the law after recording evidences.

The order came on a petition of the girl named Noor, who has challenged the registration of a criminal case against her husband and in-laws in District Tharparkar.

The petitioner claimed that she was sui juris (of age) and had married Mohammad Farhan of her own free will, but her parents registered a case of kidnapping against her husband.

Her mother, however, produced Noor’s school leaving certificate of the Kunri area and her birth certificate, wherein her date of birth is mentioned as April 5, 2004.

After the perusal of the certificates, the SHC’s division bench headed by Justice Mohammad Karim Khan Agha said the petitioner is not 18 years old and is, therefore, not legally able to marry according to the Sindh Child Marriages Restraint Act 2013.

The court said the investigating officer has recorded the statement of the petitioner that shows she has not been abducted by anyone and has married of her own free will.

The bench ordered the IO to investigate the marriage of the minor, find out if any offence has been committed under the child marriages restraint act and take necessary action in accordance with the law after recording evidences.

The SHC had also constituted a medical board to determine the age of the petitioner, but the medical board said they were unable to determine her age because she was pregnant.

The court asked the petitioner if she wanted to go home with her parents, but she refused and said she would rather go with her husband.

The bench said she could not be allowed to go with the man because she was too young to be married and sent her to a shelter home so her welfare, particularly her health, can be ensured.

The SHC said the shelter home will ensure she is provided with medical treatment for the safe delivery of her child, adding that she will be sent to the Jinnah Postgraduate Medical Centre (JPMC) for her gynaecological treatment and the birth of her child, following which she will return to the shelter home with her child.

The court ordered the JPMC executive director to look after the petitioner’s pregnancy needs, including the child’s birth. The bench said the executive director will ensure the girl is given immediate and expert attention of an experienced gynaecologist.

The bench said that after the birth of the child, the petitioner will be free to file an application in court for the forming of a fresh medical board to determine her age.

The SHC directed the home secretary to appoint a female social welfare officer who will visit the petitioner at least once a week to ensure her mental and physical health, educational needs and her overall well-being.

Arzoo case

Earlier this month the SHC had ordered that the Arzoo Fatima case is to be investigated in accordance with the child marriages restraint act after a medical board declared her a minor.

Arzoo had converted to Islam and married a man almost thrice her age. The SHC order came on her petition seeking a court injunction against her Christian family’s attempt to get an FIR registered at the Frere police station against her husband and in-laws.

The court had constituted a special medical board to determine her age, which according to her family was 13 years. The five-member board estimated it to be between 14 and 15 years and nearer to 14 years, based on her bone ossification and physical appearance.

The SHC’s division bench headed by Justice Agha asked Arzoo, who was brought in from the shelter home where she was being kept, if she was forced to convert to Islam.

She replied that she had converted to Islam of her own free will, and that she had not been kidnapped by anyone. She said she had married of her own free will as well.

The court ordered the IO to record the statement of the petitioner in accordance with Section 161 of the Criminal Procedure Code within three days.

The bench said that according to the record of the National Database & Registration Authority (Nadra), her date of birth is July 31, 2007, which shows her age to be 13 years.

The court said that according to medical, Nadra and school records, Arzoo is under the age of 18, making it impossible for her to enter into a legally valid marriage with Ali Azhar under the child marriages restraint act, and so she cannot be allowed to go with him.

The bench asked her whether she wanted to go with her parents or back to the shelter home. She replied that she would rather go with her husband.

The court said that considering her age, she is being sent back to the shelter home, with the order that her schooling, welfare and security should be ensured there.

The bench said that according to the first impression, an offence has been committed under the child marriages restrain act, so the IO should include the relevant section of the law and conduct a full investigation of the case. The court told the IO to also investigate the case under sections 4 and 5 of the act, so action can also be taken against all the persons involved in this underage marriage.

Section 4 deals with punishment for those who facilitate child marriages, and Section 5 deals with punishment for parents or guardians who allow or fail to prevent these offences.

Arzoo’s counsel Mohammad Ramzan Tabasum, however, pointed out that the marriage was conducted in accordance with the federal law and so it could not be declared invalid.

The court said that the issue can be taken up at another time at a more appropriate forum, where it can be decided if the federal law can prevail over the provincial law in view of the 18th amendment of the constitution. The bench ordered the police to take Arzoo back to the shelter home, where she will be allowed to meet only those people who she wants to, except her husband.

The SHC made it clear that no person should be protected in any way if they have violated the child marriages restraint act, and that after a proper investigation, action must be taken against those found to be in breach of the law.