In a conservative, patriarchal society like Pakistan where a high premium is placed on a woman’s childbearing role, early marriage is often seen as a desirable ‘aspiration’ for females. However, the Islamabad High Court on Tuesday delivered an eminently wise judgement in a case of early marriage that implicitly recognises the practice as the root cause of many social ills and much personal tragedy. Issuing a written order on the plea of a woman seeking recovery of her 16-year-old daughter who had filed an affidavit to say she had tied the knot of her own free will, Justice Babar Sattar declared the marriage of anyone under 18 years of age as being unlawful. “…[G]uided by principles of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child and the family), the test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth,” he wrote.
The ruling rightly noted that a child cannot be “deemed to have the competence or capacity” to parent a child of his/her own while being a minor.
ENDING the harmful practice of child marriage has been a priority for human rights advocates in Pakistan for many years.
The global Sustainable Development Goals that aim to eliminate child marriage by 2030 have also led to increased efforts to address the issue.
Implementation of child marriage laws, however, remains fraught for many reasons. Some of the causes behind poor enforcement are widely recognised, including traditional norms, low rates of birth and marriage registration, weaknesses in the police and judicial system.
A significant challenge that has not been widely discussed, however, is posed by early marriages that are not forced by parents but are in fact initiated by the minors themselves. Such cases, which appear to be coming before courts in increasing numbers, challenge policy approaches that emphasise criminal regulation of early marriages.
Due to emerging trends in South Asian countries, child rights advocates and feminists have stressed that a distinction should be drawn between forced child marriages and self-arranged early marriages.
While forced child marriages involve a clear element of coercion, self-arranged early marriages are usually the result of young persons, especially adolescent girls, exercising their agency to pursue romantic relationships, often in the face of opposition by family and community members and sometimes to escape a forced marriage. While there are good reasons for penalising parents or adult males who coerce a girl under 18 into marriage, criminalising self-arranged marriages would expose the girl to greater risks, making her more vulnerable to harm by family or community members.
