This is part two of three of a series on child marriage. Read the first part.
The Constitution of the Islamic Republic of Pakistan vows to ensure the elimination of all forms of exploitation and protection of law as an inalienable right of every citizen and will undertake special provision for women and children, as needed. As part of fundamental rights, it further elaborates that any inconsistency of any law, or any custom or usage having the force of law, with these rights will be treated as void; and no person will be deprived of life and liberty. The Constitution further prohibits slavery and forced labor including child labor. Article 25 of the Constitution establishes the equality of citizens and binds the state to provide free and compulsory education to all children between the ages of 5 and 16 years old.
The principles of policy in the Constitution protect the Muslim way of life, individually and collectively. These principles are recommendatory and not part of fundamental rights. Moreover, the Constitution qualifies that the validity of any action or of a law shall not be called into question on arbitrary interpretations of not being in accordance with principles of policy. These principles also aim to discourage parochial, racial, tribal and sectarian prejudices among citizens They bind the state to ensure full participation of women and children in all spheres of national life; and protect marriage, the family, mother and the child.
Further legal and policy guidance emanates from Pakistan’s international commitments. Pakistan is signatory to several international commitments such as the Convention on the Rights of the Child (CRC), Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and has nationally co-opted SDGs that commit to end child marriages by 2030. Pakistan was at the ICPD-25 summit in November 2019 and reaffirmed its commitment to legislate enforcement for the Child Marriage Restraint Act (CMRA) in line with Pakistan’s commitments in CRC.
The national legal framework of Pakistan, supporting constitutional and international commitments regarding children, especially girls, presents a complex picture. Legal framework concerning children’s issues are spread out in different statutes. It includes Pakistan Penal Code (PPC) 1860, special laws and provisions of the PPC and the Criminal Procedure Code (Cr.P.C). There are three core legislations that are used to define a child, irrespective of gender. These laws are not synchronized when it comes to an age-based definition that who is a child.
- the Majority Act 1875 (fixing age of majority at 18 years),
- the Guardianship and Wards Act 1890 (which provides for appointment of legal guardians for children under the age of 18); and
- the Child Marriage Restraint Act 1929 (banning marriage between children and with children where a child is defined as male person under 18 and female under 16 years).
The complex range of definitions across legislation as to who is to be considered a child is complicated. For example, according to the Majority Act 1875, a “minor” is a person who has not attained the age of 18 years. However, under the Zina (Enforcement of Hudood) Ordinance 1979, adult or “major” means a male person who has attained the age of 18 years and a female person who has attained the age of 16 years or who has reached puberty. Similarly, the age of consent for sexual activity and for marriage is 18 years for males and 16 years for females. The CMRA of 1929 from the colonial era sets a discriminatory standard whereby the marriageable age for boys is 18 year and 16 years for girls. The punishment is set at up-to 6 months and fine of PKR 50,000.
The main document for law in Pakistan is the PPC. THE CMRA is a criminal law that does not adjudicate personal rights. Whereas marriage is covered under civil law in family courts, the CMRA 1929 is covered under criminal law and elaborated under the Cr.P.C. Marriage and annulment is dealt under family law which is governed by the CPC. Therefore, upon its enforcement perpetrator of child marriage can be punished but the validity of marriage remains as it does not annul a contracted child marriage. This severely hinders the potential of the law to be a deterrent.
A 2003 study compiled 78 pieces of federal and provincial legislation related to children and observed that neither the constitution nor any single law directly covers child protection issues. This review did not include shari’a law in its own right; however, it did cover laws relating to maintenance, guardianship, custody of children, inheritance and Islamic punishments, all of which are formulated and implemented according to the provisions of Islamic shari’a . There are approximately 18 federal laws that cover matters relating to children, none of which have been re-enacted by provincial governments in their entirety.
|Table: Federal Laws dealing with children’s issues
|1. Female Infanticide Prevention Act, 1870
2. Guardians and Ward Act, 1890
3. Reformatory Schools Act, 1897
4. Child Marriage Restraint Act, 1929
5. Children (Pledging of Labour) Act, 1933
6. The West Pakistan Control of Orphanages Act, 1958
7. The WP Vaccination Ordinance, 1958
8. Juvenile Smoking Ordinance, 1959
9. West Pakistan Primary Education Ordinance 1962
10.Workers Children Education Ordinance, 1972
11.Juvenile Justice System Ordinance, 2000
|12. Punjab Private Educational Institutions (Promotion and Regulation), 1984
13. The Employment of Children Act, 1991
14. Protection of Breastfeeding and Child Nutrition Ordinance, 2002
15. Bonded Labour Abolition Act 1992,
16. Human Trafficking Ordinance 2002,
17. The Prevention of Anti‐ Women Practices (Criminal Law Amendment) Act 2011
18. National Database& Registration Authority (NADRA) Ordinance 2000
19. National Commission on the Rights of Child (NCRC) Act 2017
Child marriage in Pakistan is also perpetuated by harmful socio-customary practices and traditions. The background to these societal (mis)perceptions synonymize honour with a chaste women; place male head of the family as the custodian and guardian of his family honour i.e. women; and let child marriage be used as instrument of reconciliation or the settlement of disputes. Additional harmful practices that also lead to child marriage are (a) Swara /Wani; (b) Badal Swara/ Badal-i- Sulah; (c) Walwaar / Sar Paisa (bride money); and (d) Chatti. When girls are used as an object of reconciliation or peace collateral, her age is of no significance and in instances it could even be an unborn girl child. These harmful traditions and practices stand criminalized (310-A Cr.P.C), an indication of the state’s position on recognizing and protecting children and girls. The Prevention of Anti Women Practices (Criminal Law Amendment) Act 2011 outlines punishments for social practices like Vani, Swara or Budla‐i‐Sulh, wherein girl children and women are peace collateral to settle personal, family or tribal disputes. Harmful practices include Pait likhi (marrying girls off before they are born or very young); and Ghag have also been criminalized.
The Senate of Pakistan passed the bill to amend CMRA 1929 – titled CMRA – Amendment 2019. It proposed to raise the marriageable age for girls to 18 years old along with stricter punishments for breaking this law. The reasoning behind the amendment was that, “poverty, illiteracy, [and] anti-human rights socio-cultural practices are the factor for the prevalence of child marriage. An early marriage leads to early conception, which ultimately affects the health of teenage girl, typically enormous pressure to bear children is put on child brides.”
The bill upon introduction to the National Assembly (NA) despite support of the house was referred to the Council of Islamic Ideology (CII) for opinion at the behest of the treasury benches, at the ministerial level. The CII advised to initiate awareness campaigns against harmful practices perpetuating child marriage instead of passing a legislation. The NA Committee could not generate enough members’ support and the proposed bill was rejected.
Post Devolution under the 18th amendment, the provinces were to legislate while re-enacting the CMRA 1929 in Punjab, Khyber Pakhtunkhwa (KP) and Sindh. The provincial government of Sindh has re-enacted the CMRA in 2013 and brought parity in the marriageable age to 18 years for both boys and girls; increased the period of imprisonment to a minimum of two years and raised the fine to between PKR 0.5 – 0.7million. Legislation in Balochistan continues to lag behind.
The Punjab Assembly promulgated the Punjab Child Marriage Restraint (Amendment) Act 2015 which now stipulates harsher punishments for child marriages and imposes liability on the Nikkahkhawan as well as the child’s guardians. Under-age (under 16 years) and forced marriage is a punishable crime and a complaint regarding underage marriage can be registered with the police, union council and judicial magistrate. Punitive measures include:
- Punjab CMRA 2015: Any person marrying a girl of less than 16 years of age and the person conducting such marriage, including Nikkah Registrar shall be liable for imprisonment up to 6 months and fine PKR 50,000/-
- PPC S-310-A & 498-C: Customs like Vani and marriage in lieu of compromise, or marriage with the Holy Quran are illegal, liable for imprisonment for 3 to 7 years and fine of Rs: 500,000/-
- PPC 498-B: A person forcibly marrying a girl against her will is liable to be punished with imprisonment for 3 to 7 years and a fine of PKR 500,000/-
- The legal age of marriage is 18 years for boys and 16 years for girls as per the Child Marriages Restraint Act (CMRA) 1929 in Pakistan.
Most marriages in KP comply with the 16 years of legal age for girls. However, it is difficult to ensure identification and confirmation of legal marriageable age of 16 years. Moreover, the verbal Nikkah being a norm does not require documentation. The police, more-so, in KP treat it as private matter with a patriarchal Pakhtunwaali mindset.
The Social Welfare department has been working to draft the Khyber Pakhtunkhwa Child Marriage Restraint Bill (CMRB), 2019, to replace the redundant Child Marriage Restraint Act, 1929. The proposed bill is expected to raise the marriageable age to 18 years and institute higher punishment for the Nikkah registrar, monetary fines and imprisonment. It proposes to ban verbal Nikkah and make the CNIC mandatory for Nikkah along with marriage registration. It also proposes mandatory birth registration; and above all removes all indemnity clauses.
This policy explainer is derived from United Nations Population Fund (@UNFPAPakistan), population council Pakistan’s publications