It is unfair to view a child rights issue from the lens of rights of women and their agency to marry of their free will
n June 8, the Sindh High Court disposed of the petition for the recovery of Dua Zehra in her favour and allowed her to decide whom she intended to reside or go with, sparking much outrage, concern and debate on several issues ranging from age of consent to agency of adolescents, fear and coercion to human trafficking, documentary evidence to credibility and precedence of medical report, rights of children, role of parents, police, courts and the society towards the needs of adolescents. In a closed society like ours, some adolescents, it is argued, find solace in ‘self-arranged marriages’ as an escape or a licence to enter into and explore sexual relationships that are otherwise prohibited and criminalised.
In this regard, the role of the Sindh High Court is being questioned for placing reliance on the ossification test as opposed to documentary evidence. However, it must be stated that the question before the Sindh High Court pertained only to the recovery of Dua Zehra and not to the question of facts. The case will proceed to the trial court where all matters of fact will be contested and established and it is at that point that the relevance and credibility of the evidence, the statements and investigation will be taken into consideration by the trial court to reach a verdict.
The cases of Dua Zehra and Nimra Kazmi, however, appear to have brought to fore the many dynamics and nuances of a very complex issue that might need more engagement and thought. In particular, a distinction between what are otherwise cases of elopement or ‘self-arranged marriages’ and what may be otherwise forced underage marriages is being drawn to suggest that the Child Marriage Restraint Act should essentially relate to the latter as opposed to the former. In that, the criminalisation should apply when a parent or guardian or other person in position of power arranges a marriage of a minor against his/ her will, whereas in cases where an adolescent girl or boy, exercises her/ his will and chooses to marry or self-arrange their marriage, then in spite of not being of legal age, their right to choose and their best interest ought to be respected and protected, which may not always be with the parents. It is further argued that unlike the decision of the Islamabad High Court (writ petition number 4227 of 2021) such marriages should not be declared null and void ab initio due to the adverse impacts that can potentially have on the rights of the girl child/ woman and any offspring and children from such a marriage.
These arguments are rooted in the international human rights regime, particularly, in the UN Convention on the Rights of Child to which Pakistan is a state party. The committee under this convention in its general comment No 4 of 2003 has recognised that adolescence is a period characterised by rapid physical, cognitive and social changes, including sexual and reproductive maturation; the gradual building up of the capacity to assume adult behaviours and roles involving new responsibilities, requiring new knowledge and skills, and accordingly, urges the state parties to ensure that adolescents are given a genuine chance to express their views freely on all matters affecting them, especially within the family, in schools and in their communities. The committee further states that, in order for adolescents to be able to safely and properly exercise this right, public authorities, parents and other adults working with or for children need to create an environment based on trust, information-sharing, having the capacity to listen and offer sound guidance that is conducive for adolescents’ participating equally, including in decision-making processes.
The ground reality, however, is that such environment of trust or information-sharing between parents and children seldom exists.
This is why such distinctions and approach give rise to further questions and has the potential of rolling back the limited gains made towards preventing underage marriages that are documented to have adverse impacts on the child, particularly, the girl child, her health, education and other fundamental rights, including right to life and dignity.
To begin with, it is not fair to view a child rights issue from the lens of rights of women and their agency to marry of their free will. The child may be over the age of 15 but is under the age of 18, and in our context, the communication between parents and children as well as that in schools as regards reproductive health and well-being is seriously limited. In this regard, what kind of information is accessible to children based on which they are forming their worldviews and opinions is a serious concern in our otherwise closed society, especially in light of the potential threat of grooming and abuse in and through online spaces. Does the general comment of the committee, for instance, take this into consideration that sexual health and reproduction is likely not even taught in schools or spoken of in the homes?
In the absence of credible information from trustworthy sources, how can legal measures to address underage marriages be diffused on the argument that adolescents ought to have agency? And what does them having agency even mean? Are we saying that we are reducing the age of majority to cover adolescence, where it meets the quality of information and, more importantly, who and how will the quality of knowledge that an adolescent may have, based on which they are forming their views, be gauged and which court of law can determine such questions? Moreover, should the possibility that a home may be abusive and parents might be forcing marriage upon their children be used as an excuse to justify a self-arranged underage marriage as a counter measure? The adverse impact on the health, life, education and other rights of the girl child as well as any other children she may give birth to, do not vanish because she may have arranged her marriage herself. The solution to an abusive home or parents abusing their power or influence is not to enter into a marriage contract, which otherwise is an offence. Nor should a strict liability offence be excused simply because of expressed consent.
While it is true that in Pakistan there is no standard definition of a ‘child’ as legal ages for voting, marriage, labour and juvenile justice vary considerably, the need is to seek harmonisation of positive laws defining a ‘child’ rather than opening doors for normative assessments of ‘understanding’ whilst also ensuring that the state creates and offers mechanisms for seeking shelter from abusive homes. A larger dialogue with the society to promote healthier conversations at home and equipping children and adolescents with age-appropriate information and guidance also needs to be prioritised. Until then, to err on the side of caution by harmonising the age of consent to make it 18 across Pakistan should be preferred for safeguarding children.
The writer is a diversity and inclusion advocate and tweets at @NidaUsmanCh