The case could prove a litmus test for the state’s regard for the implementation of laws protecting its children
or 31-year-old Danish*, a three-year discrepancy in his age mentioned on his B-Form (also known as child registration certificate) that stated he was three years younger, and that on his hifz certificate came in the way of him securing a bachelor’s admission in a university in the Kingdom of Saudi Arabia. The solution? An ossification test done at the Sindh Services Hospital in Karachi helped him ‘prove’ that he was 28 years old.
The recent controversy surrounding the Dua Zehra Kazmi’s case has put to test the will of the state and its law enforcing agencies regarding their ability to protect and ensure the well-being of its citizens, especially the children.
“Why do we have laws against child marriage if these are only going to be used against the poor or those in the villages? So that the police can make some money from the poor?” Altaf Hussain Khoso, counsel for Mehdi Ali Kazmi, Dua’s father, asks rhetorically. He says the police and the state wasted time and resources and have hoodwinked the people. “Who was the principal suspect in the alleged kidnapping? The police arrested innocent people, even passers-by, but not the principal suspect once they had traced him,” he says.
“Instead of arresting Zaheer or taking him into custody, the police had tea with him,” he laments. Zaheer, the boy with whom Zehra is said to have contracted marriage, eluded police for weeks by frequently changing stations. “So, you know just how resourceful his backers are,” says Khoso.
“The SHC order has shown that the child marriage law is a mere eyewash. They dismissed the possibility of a gang of traffickers being behind this,” he adds. “They based the order on a statement by a minor who might have been intimidated,” says Khoso.
Advocate Jibran Nasir, who has filed an appeal on Mehdi Ali Kazmi’s behalf, withheld comment on the case. However, he warned that there were those trying capitalise on the situation by raising funds for Dua’s family “to pay my fee.” “I’m fighting this pro bono,” he said. He regretted that some elements were not above milking public sentiment for personal gain. “... anyone running any campaign for a legal fund in #DuaZehra case would be misleading & defrauding public in the name of a tragedy,” he has tweeted.
“Even when a child consents to sexual activity, it is still a case of rape,” says Advocate Rida Tahir of the Legal Aid Society.
In an earlier interview with a news channel, Nasir had said that if Dua was a minor, and if her grooming were established by an external party, as alleged by her father, then it was a clear case of kidnapping. And thus, he said, the crime was committed in Sindh and a court elsewhere could not grant relief to the alleged kidnappers.
Nasir had said that the law was ineffective largely due to “legislation being carried out by governments not to provide relief to masses but to ease diplomatic pressures.”
In an interview posted on a YouTube channel after the Sindh High Court order in the case, Dua said her parents beat her and that they were going to marry her off to a cousin.
If the girl was actually abducted, possibly through grooming, Section 361 of the Pakistan Penal Code is relevant. It says that kidnapping somebody from lawful guardianship can be punished with a jail time of seven years or a fine or both.
Law teacher and senior advocate Abira Ashfaq tells The News on Sunday that it is “the duty of the court to order investigation and make police take action”. She says a marriage is frequently a way to distract the state in cases of trafficking of women and minors. “If there is an allegation there is a gang that grooms young girls for sexual exploitation, the authorities must investigate it.”
She says given rampant cases of child abuse and rape, grooming, forced conversion and trafficking and the fact that victims in such cases have been forced into beggary and prostitution, the court must invoke the United Nation’s Convention on the Rights of Child and send Dua to a shelter before she makes a statement affirming that she’s not under duress.
Even if she gave her consent to a marriage, the court must investigate and ascertain the circumstances under which the consent was given. Advocate Rida Tahir of the Legal Aid Society tells TNS that in the Mumtaz Bibi vs Qasim case, the Islamabad High Court had declared an underage marriage illegal and void ab initio. She says the Punjab, where the marriage is claimed to have taken place has discriminatory laws that legally allow girls as young as 16 years of age to marry. She, too, says that the CRC is relevant.
Sections 365 and 366 were made parts of the PPC after a 2006 amendment that criminalises sexual activity with minors (under the age of 16), she says. According to Mehdi, and the documents he has produced, including Dua’s birth certificate and her passport, she is under 16. A bone ossification test, she says, is a convenient way to skirt the law. “Even when a child consents to sexual activity, it is still a case of rape,” says Tahir.
She says that the 2016 amendment that added Articles 377 and 377-A not only prohibits sexual abuse of minors but also bars grooming and persuading a child into sexual activity and makes it punishable by up to 25 years in prison. The Federal Sharia Court has ruled that setting a minimum age for marriage for girls is not unIslamic, she says.
*Name has been changed to protect identity
The writer is a journalist who covers human rights and social issues. He can be reached on Twitter at @mhunainameen