Has the system in Pakistan failed children in child marriages?
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The Sindh High Court has decided that Dua Zehra, a girl younger than 18 years who has married, has the right to choose who she wishes to live with. The parents of the young girl have now approached the Supreme Court, seeking the urgent hearing of their case. It would, therefore, be premature to discuss this specific case.
What does require discussion is child marriage in general and the attitude of lawmakers, judges, and society at large on the subject and whether as a collective system there is a proactive approach to dealing with the issue.
Regardless of whether Dua Zehra has been forced or groomed into this marriage, or whether she has done so purely out of ‘free will’, we should recognize that young people going through physical and cognitive change often attempt to assert their autonomy. It is not always rebellion; it is just part of growing up. The Convention on the Rights of the Child (a convention ratified by Pakistan), recognizes this in its general Comments: adolescence is a period of rapid change where young people can assume adult behaviors. There is also separate research which highlights that “parental approaches to autonomy have important implications for adolescent functioning.”
The Convention’s general comments also however recognize that vulnerability during adolescence and the challenges of developing an individual identity, including dealing with “one’s sexuality” as real issues. That being the case, most societies have rules on when young people can vote, consent, marry, hold criminal responsibility and when they can exercise their free will. Personal autonomy and having space for freedom and expression is exercised within a broad policy and legal framework, not in a vacuum. Societal norms also determine what decisions and choices young people feel able to make. Because societal norms can vary, often be arbitrary and be detrimental to young people (for example, forced conversion and forced marriage defies all moral and religious scripture yet it is practiced in various parts of the country), it is even more important at the policy level that there is real, proactive and effective policy on the rights and responsibilities of, and towards, young citizens of the country.
All provincial and federal law are preventative laws – they do not declare a marriage null and void when it has taken place. This is problematic.
Benazir Jatoi
Currently, Sindh and Punjab are the only provinces that have made changes to the Child Marriage Restraint Act. The Sindh Act, passed in 2013, is the only legislation setting the marriageable age at 18 years. The remaining provinces and the federal capital all require the girl to be 16 years of age and a boy to be 18 to marry - a discrepancy in the law as it contradicts Article 25 of the constitution guaranteeing equality between the sexes. In 2016, Punjab increased the punishment for violating these age requirements. Under the chairpersonship of Fauzia Waqar, the Punjab Commission on the Status of Women was proactive in educating and training nikkahkhawas. All provincial and federal law are preventative laws – they do not declare a marriage null and void when it has taken place. This is problematic.
Apart from the child marriage restraint act, there is a stark gap in policy on young people. Kamyab Jawan was the previous government’s programme with its focus on ‘education, employment and engagement’ but it did not have anything specific targeting young women nor anything on children. In fact, the programme is almost gender blind. The programme framework is silent on issues that affect women or on any concrete steps that address the barriers that hold young women and girls back from education and other opportunities. It certainly does not address child marriage and how that adversely impacts young girls and society at large– in terms of health and economics.
The UN Sustainable Development Goals has a specific goal (goal 5.3) to eliminate child marriages. This is because concrete global evidence shows that child marriages have severe physical and mental health consequences and keep a young girl in a perpetual state of financial dependence, low literacy, and no personal and bodily autonomy. She is also more prone to violence and any children she is giving birth to are at higher risk of nutritional deprivation and cognitive impairment. Apart from UN agencies in Pakistan, there seems to be little action on the subject. Many Muslim countries around the world recognise this evidence and have raised the marriageable age to 18, including in Saudi Arabia.
Law and policymakers have, however, left this subject to self-proclaimed religious experts, without looking at concrete evidence on the subject and the harm it causes young girls, families, and society. The restrictive society and a silent policy environment leave girls vulnerable – particularly when they attempt to exercise autonomy. The only progress it seems we have made has been that a bill on the subject to increase the age can at least be discussed in parliament. In 2016, when Marvi Memon introduced such a bill in the National Assembly, she was accused of blasphemy by then chair of the Council of Islamic Ideology.
Law and policy must be bolder if it wants to secure a future for young people. Judges need to interpret the law from a lens of do-no-harm to a young person – marriage at a young age increases the risk of fistula, domestic violence, poor nutrition, the continuous cycle of poverty. We cannot wait for the next headline of a young girl attempting, or being forced, to marry before we discuss the subject.
— Benazir Jatoi is a barrister, working in Islamabad, whose work focuses on women and minority rights. She is a regular contributor to the op-ed pages in various Pakistani newspapers.
Twitter: @BenazirJatoi
