If it is determined that Arzoo is in fact a child, whether she gave consent to marry becomes irrelevant. In fact, her being a child brings forward further violations
The vulnerability and helplessness of religious minorities is on display yet again. This time it is through Arzoo Raja, a Pakistani Christian girl, 13 years old according to her parents, who they says has been kidnapped, forced to change her religion and then forced to marry a man more than twice her age. Two main issues converge here: forced conversion and child marriage.
Many needed to have colluded to ensure this “marriage” took place. This includes the man who plotted to marry Arzoo, the person who solemnised the marriage and witnesses who validated the fraught union. The police are suspected to have heavily aided and abetted throughout. The matter was brought before the Sindh High Court to consider the case for investigation under the penal provision of abduction of a person under the age of 14. The court order dated October 27, (now a public document) must be studied carefully in order to understand how the institutions meant to provide justice can fail us. The order reflects the ordinary and everyday lived experience of the many that approach the justice system. Only a handful of such cases are revisited and reassessed to undo wrongs.
To ensure that a comprehensive order is passed, the judge has the discretion, and should no doubt use it, to question all aspects of the case, weigh arguments by all parties involved and ask whether the correct legal provisions have been applied. What the judge cannot do is ignore the penal provisions in the application. This order failed to deal with the question whether abduction of a minor had taken place. It also failed to consider wider issues of child marriage, forced conversion and the question of consent that would derive from these considerations.
Had the court considered the abduction of a person under 14 years, two main issues would arise: i) determination of the age of the person in question, and ii) whether an abduction took place. Was age factored into the proceedings before the court? Was any question asked to aid the court in determining Arzoo’s age? Was any evidence allowed to be presented by Arzoo’s parents to substantiate their claims? Was any evidence presented to counter the evidence produced by Arzoo’s parents? Was a medical test ordered to determine the age of the person at the heart of the matter?
Had the court dealt with the question of Arzoo’s age, other important issues would be dealt with almost automatically. This is because if Arzoo is in fact a minor, as alleged by her parents, the concept of consent comes into play. Can a child give consent to convert religion? According to a 2019 Lahore High Court judgement a minor lacks the capacity to convert. Does a child’s consent to leave home hold any weight? The concept of consent in child abductions is extensively considered under the Hague Convention, to which Pakistan is a signatory since 2017. Taking the Convention into consideration it could easily be argued that even if a child agreed to leave home with someone else (or even with a parent without the consent of the other parent), an abduction has taken place.
Similarly, if it is determined that Arzoo is in fact a child, whether she gave consent to marry becomes irrelevant. In fact, her being a child brings forward further violations. Sindh’s laws deem marriage lawful only at 18 years of age. Penal code provisions that could potentially be attracted include sexual abuse, exposure to seduction, procuration of a minor girl and rape (intercourse with a girl below 16 years of age with or without her consent is recognised as rape under the penal code). Without considering the steps required to make a marriage legal, such as age, the order refers only to Arzoo marrying with her “own freewill and accord without duress and fear”.
Unfortunately, the court initially satisfied itself based merely on presumptions, without any evidence, leaving the order (dated October 27) intellectually incoherent and out of touch with real issues, including rights of the girl child and rights of religious minorities. It seems that the presumptions made in the order are driven by the fact that the petitioner in the case was Arzoo herself - if Arzoo appears in person, it must mean she has not been forced to marry. This tact is often used by those attempting to validate forced “marriage” by making the aggressor look like the victim.
Strictly speaking, the court need not have considered conversion at all. An application reporting abduction of a child was before it. That could have legitimately been the only consideration of the court.
If the court had tried to determine her age before the October 27 order, it would highlight another very important principle, that of the best interest of the child. It is considered in various laws on children, case law mainly from family courts and widely in international jurisprudence. The crux of the principle is that when issues concerning children are brought before any forum, the best interest of the child should be of primary consideration.
Strictly speaking, the court need not have considered conversion at all. An application of abduction of a child was before it and that could have legitimately been the only consideration of the court. Determining the age would have dealt with both questions: whether an abduction took place and the legitimacy of the marriage. These questions would have invoked both the concept of consent and principle of the interest of the child. The order reveals that the court did take conversion into consideration. Unfortunately, by not discussing age and discussing conversion in a linear, simplistic manner, and not taking into consideration the very problematic issue of forced conversion the court failed to uphold constitutional guarantees to protect minorities and children.
Despite the sporadic formal commitments made by policy makers for affirmative action to protect minorities, the winds in Pakistan seem to blow towards a culture of intolerance. This hits women and girls the hardest. This is because state institutions, including the courts and those who hold public office do not fully grasp the constitutional commitments towards Pakistan’s minorities. If they did, it would have been understood that the constitutional guarantee under Articles 20-22 of freedom to profess religion is precisely why we require an act of parliament to outlaw forced conversion. Unfortunately, attempts have been made in Sindh and the Punjab’s provincial assemblies, and in the Senate without any success. Not only does a culture of intolerance prevail but also a culture of fear - this time among law makers.
There is also a complete failure among all institutions to grasp the constitutional guarantee of human dignity - what it entails, how laws, cases, procedures should be interpreted to uphold this ever so important, majestic almost, fundamental right. Arzoo’s case is not yet over as the Sindh High Court and both the federal and Sindh governments have stepped in to undo the great injustice done. A discussion on the latest welcome and well-reasoned steps taken since the initial court order such as setting up a medical board to determine Arzoo’s age is not possible as the matter is currently sub judice. The initial order had clearly further lowered the trust Pakistan’s minorities have in state systems and structures that should be protecting them.
It is important to follow the Arzoo case closely to be able to understand the legal and moral amends needed to be made with some of Pakistan’s most vulnerable citizens: religious minorities and the girl child.
The writer is a barrister. She tweets: @BenazirJatoi