Court in Pakistan orders change in legal marriage age

Lahore High Court.
Lahore High Court. | (MariyamAftab, Creative Commons)

A high court in Pakistan last week ordered a provincial government to remove gender-based age distinction in its child marriage law, a move aimed at deterring forced conversions and forced marriages of girls, sources said.

Lahore High Court Justice Shahid Karim on April 15 declared as “discriminatory” Punjab Province's Child Marriage Act of 1929, which fixed 18 and 16 years as legal ages for marriage for boys and girls respectively.

The verdict arose from petitioner Azka Wahid seeking amendments to the Child Marriage Act to avert harmful gender distinctions in accordance with the Constitution of Pakistan’s guarantee of equal rights for men and women.

Justice Karim wrote in his five-page verdict that the different ages for marriage for male and females, “being unconstitutional, are held to be without lawful authority and of no legal effect. They are struck down.”

He directed the government of Punjab Province to “issue the revised version of 1929 Act (based on this judgment) within the next 15 days and shall also upload that version on its website for information.”

Though the aforementioned law has been replaced by the Punjab Child Marriage Restraint (Amendment) Act, 2015 to criminalize child marriage in Punjab, girls and women in Pakistan are often forced to marry against their will, in some cases even before reaching the legal age for marriage. This is especially true for minorities such as Christians and Hindus.

Christian and Hindu women and girls are particularly vulnerable as they belong to marginalized minority groups and are routinely targeted for sexual exploitation in the guise of forced marriages and forced religious conversions, activists say.

The judge observed there was a need to take effective steps against child marriages as Pakistan’s marriage laws were meant to primarily keep in view the “social, economic and educational factors rather than religious.”

Referring to Article 25 of the constitution, the judge stated that all citizens were equal before the law and were entitled to equal legal protection.

“The definition of ‘child’ in the 1929 Act while making a distinction on the basis of age, is not based on an intelligible criteria,” Justice Karim ruled. “The definition is indeed a special provision for the protection of women, but in the process it tends to afford greater protection to males by keeping their age of marriage higher than females.”

The judge noted that a brief filed by the Punjab advocate general’s office made a reference to Islamic jurisprudence regarding the age of puberty as the traditional interpretative toolkit. The report by the advocate general stated several factors behind the legislation, saying that in Pakistan, many children are victims of child marriage, and the burden of child marriage is disproportionately borne by girls as opposed to boys.

The report says that early marriage excludes children from education and makes them vulnerable to various health complications. It points out that as many as 21 percent of girls in Pakistan are married before the age of 18, and 3 percent before reaching 15, according to Unicef database 2016, based on Demographic Health Survey of Pakistan 2012-2013.

The report also quotes the recent Demographic Health Survey of Pakistan (2017-2018), which shows on average an increase in the age of girls marrying, but also that child marriage at the age of 15 years has increased from 1.6 to 1.8 percent. Justice Karim observed that this made a compelling case to take effective measures to counter the debilitating effects of child marriage.

“We, as a nation, woefully lag behind in all major indicators, and half of our population cannot be lost to child-bearing at an early age while its potential remains untapped,” the judge lamented.

He maintained that equal opportunities for females means equal restraint on marriage as for males. The judge further said the 1929 Act and its amendments help fulfill state duties under Article 35, which provides that it shall protect marriage, family, mother and child.

‘Right Direction’

Church leaders and rights activists welcomed the high court’s judgment, saying it had resolved the age difference issue and would help in achieving a deterrent against forced faith conversions and forced marriages of underage minority girls, including Christians.

Church of Pakistan President Bishop Azad Marshall lauded the verdict, saying the Punjab government must amend the Child Marriage Restraint Act through the Punjab Assembly to enforce the ruling.

“This verdict is the first step towards recognition of the severity of the issues related to child marriages, especially those belonging to the minority Christian and Hindu communities,” Marshall told Christian Daily International-Morning Star News.

He said the church had been demanding the enforcement of a uniform minimum age for marriage for both boys and girls to be set at 18 years across Pakistan as a deterrent against forced conversions of underage Christian girls in guise of Islamic marriage.

Punjab Provincial Assembly’s Christian member Ejaz Alam Augustine said it was unlikely that the Punjab government would appeal against the court’s decision.

“I don’t think the provincial government will challenge this decision as the amended Act will provide protection to all women and girls irrespective of their faith affiliations,” he said.

U.N. human rights experts on April 11 called on Pakistan to make legal changes in light of continued vulnerability of women and girls of minority faiths to forced marriages and religious conversions. The U.N. special rapporteurs called on Pakistan to raise the legal age for girls to marry to 18 as a deterrent against exploitation in the 96-percent Muslim country.

“The exposure of young women and girls belonging to religious minority communities to such heinous human rights violations, and the impunity of such crimes, can no longer be tolerated or justified,” they said in a statement issued in Geneva.

The experts stressed that child, early and forced marriages could not be justified on religious or cultural grounds. They underscored that, under international law, consent was irrelevant when the victim was a child under the age of 18.

At present Sindh Province is the only one in Pakistan where the legal marriage age for both girls and boys is 18 years, while in Punjab, Khyber Pakhtunkhwa and Balochistan provinces, the minimum for girls is still 16 years.

Pakistan ranked seventh on Open Doors’ 2024 World Watch List of the most difficult places to be a Christian, as it was the previous year.