Anti-child marriage law in Pakistan

WHEN tradition militates against the well-being of individuals, and runs counter to advances in scientific knowledge, it is time to let it go. Too often though, tradition has many impassioned, blinkered defenders reluctant to discard time-honoured rituals and that is when the government can play an important role by legislating on the issue. Thus on Wednesday, the Punjab government declared its intention to discuss
amendments to the family law and raise the minimum age for girls from 16 to 18 years, as well as penalise the non-registration of marriage with a fine of Rs50,000 and make it mandatory for the bride and groom to produce CNICs to enter into a nuptial contract.

In most of Pakistan, the burden of being born female with disadvantages of access to healthcare and education is often compounded by the cross of early marriage. In a patriarchal and stultifying social sphere that places a high premium on a female`s child-bearing role, millions of girls become wives and mothers before they are mentally or physically capable of the attendant challenges.

There are a number of health risks incurred by females thrust into such early unions, and resulting early motherhood, including obstetric fistula, death in childbirth and cervical cancer. According to recent studies cited in a report in this paper, the latter is the second most common cancer afflicting Pakistani women, claiming a shocking 20 lives every single day. The country ranks seventh among countries with the highest rates of cervical cancer. There is, therefore, more than one good reason to welcome the Punjab government`s initiative to review laws that impact girls and women in far-reaching ways. The precedent was set by the Sindh Assembly in April last year when it passed the Child Marriage Restraint Act 2013, thereby making marriage below the age of 18 a punishable offence.

Although changing hidebound attitudes takes time, at least there is now a legal framework to shore up and reinforce the effort. It would behove other provinces to follow suit.

Submission to the Women Human Rights and Gender Section of OHCHR
By the Institute for Social Justice (ISJ) Pakistan- www.isj.org.pk

Introduction
This brief paper offers the state of child marriages in Pakistan which includes prevalence of child marriage, legislative and administrative measures, reasons of child marriages, good practices and recommendations for the government and civil society organizations.

According to the Economic Survey of Pakistan 2012-13, Pakistan is the sixth populous country in the world having an estimated 184.35 million people with 2 percent growth rate. By 2050 Pakistan will become the fifth populated country if it continued with the same pace of growth rate. Of this about 48 percent are estimated to children. A big number of these children mainly girls are married in their innocent age even 7 years old. In 2001, estimated 37 percent women were reported to married below 18 years of age, the percentage is still feared to be the same after 12 years of the lapse.

Prevalence/Statistics: In 2012, 75 cases of child marriage were reported by different media agencies; of these total cases, 43 per cent children were from 11 to 15 years old and 32 per cent from the age group 6 to 10 years of age. In 2008-2009, 24228 children of age group 10-14 were reported married and 1029784 children of age group 15-19 were reported married. The number of children married in their minor ages is in millions but are not monitored and reported. The Pakistan Demographic and Health Survey (2006-07) mentions in its section on teenage fertility that almost half of the girls of 15 to 18 years of age were already pregnant or had a baby to take care of. The exact numbers of child or early marriages are not available due to lack of proper documentation and data collection. After 1998, Pakistan has not conducted population census which could help to understand the figures and ages of marriages.

Causes of child marriages
In Pakistan, there are various causes of early or child marriages. The most amongst those causes are: extremely weak legislation; lack of implementation of the existing laws; children are treated commodities/slaves; tribal and feudal structure of society; lack of awareness in the public about harmful effect of child marriages; extreme poverty; internal trafficking; and lack of will in the government. Another important cause of the child marriage is ineffective and non-responsive birth registration system. The birth registration for children, especially girls is never prioritized, which gives room for manipulation of the age of the child/girls at the time of marriage. In addition, there are no central, independent and strong child rights bodies that could monitor child rights violations including the issue of child marriages.

Child marriages in non-Muslims in Pakistan
There is no regulatory framework to deal with overall marriages and mainly the issue of child marriages amongst the non-Muslim minorities in Pakistan. All religious minority groups perform and register marriages according to their religious practices, and no consideration is given to the age of children. In 2011 and 2012, the previous federal government was pushing coalition partners for the enactment of the Hindu Marriage Bill 2011 which provided for the prohibition marriage of non-Muslim girls and boys below 18 years of age.

Trafficking and child marriages
“Internal trafficking of children is pervasive as the children are sold by their parents or forced into marriage, forced labour, sexual exploitation or domestic servitude” but internal trafficking is not covered the law expect in Sindh province. The Sindh Child Protection Authority Act 2012 prohibits human trafficking within and outside Pakistan.
Legislation 
In 1929, the Child Marriages Restraint Act” was introduced and enacted in the British times to discourage or restrain solemnization of child marriages. According to the Act marriageable for boys is 18 years above and for girls 16 years above. In 1981, the Act was amended in which the age of the girl child was increased from 14 to 16 years. And for boys the age was decreased from 21 to 18.

According to the law a person male above 18 years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to Rs 1,000 (9 $), or with both (Section 4). The law also provides punishment for solemnizing the child marriage, with simple imprisonment which may extend to one month, or with fine which may extend to Rs 1,000 (9$), or with both, unless he proves that he had reason to believe that the marriage was not a child marriage (Section 5).

The law also provides punishment for male parent or guardian of the child involved into the act of child marriage. It says that the person who has charge of the minor contracts a child marriage whether as male parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to Rs 1,000 (9$), or with both. It further says that “it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized” (Section 6).

The weak point of the law is, it says that “No Court shall take cognizance of any offense under this Act, except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe and such cognizance shall in no case be taken after the expiry of one year from the date on which the offense is alleged to have been committed” (Section 9). This section stops the police to take action against the violators of the law.

For violating the Act, the offender will be fined of Rs 1000 (US $ 10), or one month imprisonment. Furthermore, if a marriage involving young children takes place, the adults who agreed to the marriage and arranged it are punished, but the marriage does not stand dissolved. As usual, the implementation of this law is non-existent.

Therefore, it is very important for the state to take corrective measures. The legislators need to bring amendments to the law making the punishment stricter. The monitoring and implementation of the law should be mandatory, while the law should be publicized properly so that everyone in the country knows about it.

The Committee on the rights of the Child’s concerns

The Committee on the Rights of the Child in the Concluding Observations and Recommendations (2009) has mentioned the issues of child or early marriages under following headings: A) definition of the child (para 26, 27); B) Non-discrimination (para 28); C) Respect of the views of the child (para 40); D) Adolescent health (para 65); E) Harmful traditional practices (para 68, 69, 70) and F) Sale and trafficking (para 95, 96).

The Committee on the rights of the child notes that there is difference between the minimum legal age for marriage of boys (18 years) and that of girls (16 years). It also said that the definition of a girl child contained in the Zina and Hadood Ordinances (1979) is also 16 years or puberty. Therefor the Committee has recommended Pakistan for the “full harmonization of its legislation as regards the definition of a child so as to define a child as every human being below the age of 18 years. It recommends in particular to amend the Zina and Hadood Ordinances (1979), as well as the Child Marriages Restraint Act (1929) in order to align the age of marriage of boys and girls by raising the minimum age of marriage for girls to 18 years.”
UPR recommendations related to child marriagesIn 2008, during Pakistan’s review in the Human Rights Council, Switzerland had recommended Pakistan to do “everything possible to prevent early and forced marriage, and to recognize in its legislation rape within marriage”, but Pakistan has been slow in implementing this recommendation.

In 2012, Pakistan in its National UPR report to the HRC said that Pakistan has enacted the Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011 which has “strengthened protections for women against discrimination and harmful traditional practices. It criminalizes forced marriages, child marriages and other customary practices that are discriminatory towards women.”

During the 2012 UPR review, Canada has recommended Pakistan to take “steps to implement laws and policies with a view to eliminating early and forced marriage” (Recommendation No 122.102) and Austria has recommended Pakistan to take “effective measures to prevent forced or early marriage, in particular with a view to ending rape, sexual exploitation and forced conversions of scheduled caste girls (Recommendation No 122.103). Both of these recommendations have been accepted by Pakistan.

Anti-Women Practice LawIn 2011, the Parliament of Pakistan has passed the Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011, which also outlined punishments for anti-social practices like forced marriages, Wanni, Swara or Budla-i-Sulh,  in which women (girls) are traded to settle personal, family or tribal disputes. The offences covered by the Act are non-bailable and non-compoundable.

The Child Rights Movements concernsThe Child Rights Movement of Pakistan in its stakeholder UPR report to the Human Rights Council had shown serious concerns that since 2009 the Child Marriage Restraint Amendment Bill has been pending and has not yet been passed. Therefore it urged the government to introduce an amendment in the Zina and Hadood Ordinances (1979) and in the Child Marriages Restraint Act (1929) to align the age of marriage of boys and girls by raising the minimum age of marriage for girls to 18 years, along with stricter penalties for violations.

Efforts for new legislationAfter the 18th Constitutional Amendment in 2010, the issue of child marriage is considered to be a provincial subject, therefore at provincial level civil society organizations, networks and anti-child-marriage parliamentarians have been putting their efforts either to introduce new law to ban child marriages or amend the existing the Child Marriage Restraint Act. However, the existing law is still applicable in Balochistan, KP, FATA and the Islamabad Capital Territory. For FATA in particular there are require the changes in relevant federal law as federal laws are applicable and are extended to FATA.

The proposed bills (the Child Marriage Restraint (Amendment) Bills) at federal and provincial levels proposes strict penalties and sentences against perpetrators and increase the age of girl from 16 to 18 years.

The Provincial Commission for Child Welfare & Development in Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa are working to introduce bills to amend the Child Marriage Restraint Act 1929. A Member Provincial Assembly Punjab committed to table the Punjab Child Marriage Restraint (Amendment) Bill in the assembly.

In 2013, in the previous the Provincial Assembly of Khyber Pakhtunkhwa and the Chief Minister KP had rejected to pass the Child Marriage Restraint (Amendment) Bill 2013 for the reasons that if the bill approved will create a new debate and more issues in the province.Whereas September 2013,  the members of the provincial assembly Sindh had unanimously adopted a resolution in which they recommended the provincial government to declare 18 years as the minimum age for marriage for girls too.The members of provincial assembly Sindh have also drafted bills to ban child marriages.
Good practices
Girls’ education has been promoted by the federal and provincial governments as well as by the CSOs including media. Pakistan’s National Education Policy prepared under the Education for All and Millennium Development Goals greatly focusing on eliminating gender disparity in education and encouraging families to send their girls to schools. The federal and provincial government has taken many positive measures in this regard. Governments have initiated campaigns for enhancement of literacy specially for promotion of primary education for girls in rural areas. In 2010-11, the Government of KP, introduced stipends for girl students from poor families to reduce the dropout rate and gender disparity. Geo TV- a private media channel- has launched special campaign for promoting education.

In 2012, ActionAid Pakistan and Ideas for Life Trust and other NGOs jointly launched
campaign with the message “Safeguard My Childhood: Stop Girl Child Marriage.” The purpose was to highlight the harmful impacts of early age marriages upon girls’ education attainment, health outcomes and empowerment opportunities. Under this campaign private and public universities were targeted
In 2010 and 2011, a child rights NGO (SPARC) had also extensively campaigned against the child marriages and raise public awareness on the harmful effect child marriages on children and families. Thee campaign were launched at district levels with the local society networks. Such local level campaigns are urgent need of the time.

In 2012, Rutger NGO had also initiated advocacy campaign for the amendment in the Child Marriage Restraint Act.
In 2013, the CRM Pakistan has also launched a postcard campaign for the enactment of pending bills related to child rights which includes The Child Marriage Restraint (amendment) bill 2010. The CRM has printed more than 5000 postcards which are sent to the Prime Minister of Pakistan. In 2013, in Punjab, Alliance against Child Marriage of various NGOs working human rights in Pakistan has been formed. The Alliance has held meetings with Parliamentarians.
In 2010, the Supreme Court had taken suo motu action and directed the federal government on November 23, 2010, to legislate on Hindu marriage rights.

Recommendations:

1. Enactment of pending bill on the Child Marriage Restraint (Amendment) Bills at federal and provincial levels. These bill should address/include:
   1. The police should be given powers to arrest offenders and investigate the case.
   2. Increase the punishments for solemnizing the child marriage.
   3. The minimum punishment should be increased up to two years and a fine of at least Rs 100,000.
   4. Punishment should be made applicable to all the parties involved in the child marriage including the parents of both the groom and the bridegroom, and the person who solemnizes such a marriage (the Nikah Khwan/marriage registrar).
   5. The legal age for marriage for boys and girls should be same – 18 years.
   6. Survey on child marriages or population census should be conducted
   7. Canada and Austria should follow up on the UPR recommendations in their bi-lateral talks with Pakistan. Both countries have recommended Pakistan to take measures to eliminate child marriages.
   8. Mass media campaign should be launched about the harmful effects of child marriages
   9. CSOs and networks/alliances should assist the government to raise public awareness
   10. Girls education should be promoted and budget should be increase for constructing girls schools