Child Marriage

Pakistan has one of the highest rates of child marriage in the world. UNICEF estimates that Pakistan has the sixth highest number of women married before the age of 18 in the world.

According to the Pakistan Demographic and Health Survey (PDHS) 2017-18, 3.6 percent of girls under 15 are married and 18.3 percent of girls under 18 are married in Pakistan. The PDHS 2017-18 survey also shows that 8 percent of adolescent women aged 15-19 in Pakistan are already mothers or pregnant with their first child. Three out of ten Pakistani women are married by the age of 18.

Contributing Factors for Child Marriage in Pakistan

Child marriage is prevalent in Pakistan for a variety of reasons, including deep-rooted traditions and customs. These can be categorised at social, economic, institutional, legal and political levels. Together, they affect the socio-economic status of an individual and a family and lead to child marriage. These factors operate at the state, community, family and individual levels and are highly dependent on the local context.

One of the main factors contributing to child marriages in Pakistan is poverty. Families living in poverty may see child marriage as a way to reduce the financial burden of raising children by marrying off their daughters at an early age.

Traditional and cultural norms also play an important role in the prevalence of child marriage. Some families believe that marrying off their daughters at a young age is necessary to protect them from possible harm or violence and to preserve family honour.

Limited and lack of access to education is another important factor contributing to child marriages. Girls who do not go to school are at higher risk of being married off at a young age. Education is an important tool to empower girls and enable them to make informed decisions about their lives and when to marry. Allowing child marriages disempowers girls, which hinders their progress in life. With every young girl who is married off early, the country loses a potential future doctor, engineer, teacher, politician or leader.

Weak law enforcement and lack of awareness of the harmful effects of child marriage perpetuate this practice in Pakistan. Existing laws prohibiting child marriages are often not enforced and many families are unaware of the negative impact of child marriages on the health and well-being of their children.

Impact of Child Marriage

Child marriage has a strong physical, intellectual, psychological and emotional impact, cutting off educational opportunities and chances of personal growth. It makes children, particularly girls vulnerable to abuse and exploitation.

Evidence suggests that girls are more affected and impacted by early marriages than boys. According to UNICEF, Girls who marry before 18 are more likely to experience domestic violence and less likely to remain in school. They have worse economic and health outcomes than their unmarried peers, which are eventually passed down to their own children, further straining a country’s capacity to provide quality health and education services.

Minimum Age for Marriage in Pakistan

The legal age of marriage is 18 for boys and 16 for girls throughout Pakistan except in Sindh province where the legal age of marriage is 18 for both boys and girls. In addition, the age of marriage in Pakistan is set differently in specific laws for religious minorities

Threshold of 18 years for Marriage Age

A child under the age of 18 is not considered to be of legal age, which is a sine qua non for marriage. Moreover, a girl or boy, under 18 years is not considered capable of giving or forming a free and informed consent. The threshold of 18 years is laid down in many international instruments, including the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on Consent to Marriage, the Minimum Age for Marriage and the Registration of Marriages of 1964, etc.

Opposition to Setting Minimum Age for Marriage in Pakistan

Some religious scholars in Pakistan oppose raising the marriageable age to 18. It is argued that a person is allowed to marry once he or she reaches puberty. Therefore, no law setting a minimum age of marriage can apply to Muslims and this would be against Islamic teachings.

In October 2021, the Federal Shariat Court (FSC) in Pakistan categorically stated that the setting of a minimum age for marriage by an Islamic state is not against Islam. The FSC also rejected a petition on 6 March 2023 challenging the Sindh Child Marriage Restraint Act of 2013.

Minimum Age for Marriage in Muslim Countries

According to National Commission on the Rights of Child (2022), the minimum age for marriage also varies in Islamic countries. For example, the legal minimum age for girls is 19 in Algeria and 20 in Libya, while it is 18 in Egypt, Lebanon, Iraq, Oman, and the United Arab Emirates, and 21 for girls in Indonesia.

International Human Rights Regime for Child Marriages

Universal Declaration of Human Rights (UDHR), 1948

The Universal Declaration of Human Rights (UDHR) does not specifically mention child marriage, as it was adopted in 1948 when the issue of child marriage was not widely recognized as a human rights violation. However, the principles outlined in the UDHR 1948 are relevant to the issue of child marriage.

Child marriage violates several human rights principles outlined in the UDHR, including the right to free and full consent to marriage (Article 16), the right to education (Article 26), and the right to protection from exploitation, abuse, and harm (Article 4).

Article 16 of UDHR states that men and women of full age have the right to marry and to found a family which excludes minors. In addition, 16(2) explains that marriage should be contracted with the free and full consent of intending spouses. This, together with the phrase of full age in Paragraph 1, amounts to a ban on child and/or forced marriage because children may not be in a position to give free and full consent.

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1960

The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery is a treaty adopted by the United Nations General Assembly in 1956. Pakistan has ratified this Convention in 1958. This Convention declares that any marriage which is forced upon a woman or a girl against her will by any member of her family or the guardians of the girl is considered as slavery.

Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages, 1964

The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages is a treaty adopted by the United Nations General Assembly in 1962, which entered into force in 1964. The Convention aims to protect the rights of individuals, particularly women and girls, from forced or child marriage.

The convention sets a minimum age for marriage of 18 years for both parties and requires that marriage be entered into only with the free and full consent of the intending spouses. It also requires that marriages be registered in an official registry, and that such registration be made compulsory in order to prevent forced or child marriage.

In Article 2 of the convention, it is explicitly stated that “no marriage shall be legally entered into without the full and free consent of both parties,” and in Article 3, it specifies that the minimum age for marriage should be 18 years, with exceptions allowed only in certain circumstances.

Moreover, in Article 4 of the convention, States Parties are required to take legislative and other measures to ensure the effective implementation of the convention, including the prevention and prohibition of forced or child marriage.

The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages explicitly prohibits child marriage and requires States Parties to take measures to prevent and eliminate such practices.

Pakistan has not ratified this Convention. Pakistan should ratify this Convention considering customary practices, legal and institutional frameworks on the minimum age of marriage in Pakistan.

International Convention on Civil and Political Rights (ICCPR), 1976

The International Covenant on Civil and Political Rights (ICCPR) is a treaty adopted by the United Nations General Assembly in 1966, which entered into force in 1976. Pakistan has ratified this Convention in June 2010.

The ICCPR is one of the two primary human rights treaties along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) that together with the UDHR, form the International Bill of Human Rights.

The ICCPR addresses several civil and political rights, including the right to life, liberty, and security of person, the right to freedom of thought, conscience, and religion, the right to freedom of expression, and the right to a fair trial, among others.

Article 23 of the ICCPR recognizes the right of men and women to marry and to found a family. However, this right must be exercised with the free and full consent of the intending spouses. Therefore, child marriage, which involves the marriage of a child without their free and full consent, may be considered a violation of this right.

Moreover, in General Comment No. 28, the United Nations Human Rights Committee, which monitors the implementation of the ICCPR, has noted that child marriage violates several human rights principles, including the right to education, the right to health, and the right to be protected from all forms of violence, abuse, and exploitation.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 1976

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a treaty adopted by the United Nations General Assembly in 1966, which entered into force in 1976. The ICESCR is one of the two primary human rights treaties along with the International Covenant on Civil and Political Rights (ICCPR) that together with the UDHR, form the International Bill of Human Rights.

The ICESCR recognizes several economic, social, and cultural rights, including the right to education, the right to work, the right to health, and the right to social security, among others.

While the ICESCR does not specifically mention child marriage, the principles enshrined in the covenant, particularly the principles of non-discrimination and the best interests of the child, may be relevant to the issue of child marriage.

Article 10(1) of the ICESCR emphasizes the importance of protecting and supporting the family and ensuring that marriage is entered into with the free consent of the intending spouses, which is particularly relevant to the issue of child marriage.

Furthermore, Article 11 of the ICESCR recognizes the right of everyone to an adequate standard of living, including food, clothing, and housing. Child marriage, which often results in economic dependence and limited opportunities for women and girls, may be considered a violation of this right.

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) is a treaty adopted by the United Nations General Assembly in 1979, which entered into force in 1981. The CEDAW is often described as an international bill of rights for women as it recognizes the rights of women to equality in all aspects of life. Pakistan ratified CEDAW in March 1996.

Article 16 of the CEDAW recognizes the right of women to enter into marriage and to choose their spouse, and requires that marriage should be entered into with the free and full consent of the intending spouses. This article also recognizes the equal rights of men and women during marriage and at its dissolution, and the right to family planning and reproductive health.

The CEDAW does not specifically mention child marriage. However, in General Recommendation No. 21, the Committee on the Elimination of Discrimination against Women, which monitors the implementation of the CEDAW, has stated that child marriage is a form of discrimination against girls and violates their human rights, including their right to education, health, and freedom from violence and exploitation.

The Committee has also recommended that States Parties to the CEDAW take measures to prohibit child marriage and to promote the education and empowerment of girls, including by raising the minimum age of marriage and ensuring that girls have access to quality education, healthcare, and other services.

Convention on the Rights of the Child (CRC), 1989

The Convention on the Rights of the Child (CRC) is a treaty adopted by the United Nations General Assembly in 1989, which entered into force in 1990. The CRC is the most widely ratified international human rights treaty, and it sets out the civil, political, economic, social, and cultural rights of all children. Pakistan ratified the Convention in 1990.

Article 1 of the CRC defines a child as any person under the age of 18, and Article 2 recognizes that all children are entitled to the rights set forth in the convention without discrimination of any kind, including on the basis of gender, race, or other status.

Article 16 of the CRC recognizes the right of every child to be protected from all forms of exploitation, abuse, and violence, including early and forced marriage. Child marriage is a violation of this right, as it can expose girls to physical, sexual, and emotional violence, and deprive them of their freedom and autonomy.

Article 19(1) of the Convention on the Rights of the Child (CRC) recognizes the right of every child to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians, or any other person who has the care of the child. Article 19(2) of the CRC recognizes the duty of States Parties to take all appropriate legislative, administrative, social, and educational measures to protect children from all forms of violence, including by taking into account the best interests of the child.

Article 24 of the CRC recognizes the right of every child to the highest attainable standard of health, including access to health care services and information, and the promotion of healthy behaviors. Child marriage can have serious negative health consequences for girls, including increased risk of maternal mortality, early pregnancy and childbirth, sexually transmitted infections, and mental health issues.

Article 32 of the CRC recognizes the right of children to be protected from economic exploitation and harmful work, including engagement in any work that is likely to be hazardous or to interfere with their education, or that is harmful to their health or development. Child marriage is a harmful practice that deprives girls of their education and can expose them to economic exploitation.

Pakistan Legal Framework for Child Marriage

Provincial governments are primarily responsible for enacting laws and developing policies and programmes to eliminate child marriages in their respective jurisdictions after 18th Constitutional amendment in 2010.

National

Constitution of the Islamic Republic of Pakistan , 1973

The Constitution of the Islamic Republic of Pakistan, 1973 does not specifically mention child marriage. The Constitution of Pakistan guarantees certain fundamental rights, including the right to life, liberty, and the pursuit of happiness, which can be interpreted to protect children from harmful practices such as child marriage.

The Constitution of the Islamic Republic of Pakistan pledges 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 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.

Muslim Family Laws Ordinance (MFLO), 1961

The Muslim Family Laws Ordinance (MFLO), 1961 governs various aspects of family life for Muslims in Pakistan, including marriage, divorce, and custody of children. With respect to child marriage, the MFLO sets a minimum age for marriage for boys and girls.

Under Section 2 of the MFLO, the minimum age for marriage for boys is 18 years, while the minimum age for marriage for girls is 16 years. However, the law allows for certain exceptions in special circumstances.

The law also specifies role of Union Councils in preventing child marriages. In Section 5 of Muslim Family Laws Ordinance, 1961 that every marriage in Pakistan should be registered with Union Council through its Nikah Registrar. Section 5(4) of the Act also provides for a punishment of up to 3 months or fine of thousand rupees if marriage is not registered, or both.

Pakistan Family Courts Act, 1964

The Pakistan Family Courts Act, 1964 is a law that established family courts in Pakistan to deal with matters related to marriage, divorce, and other family issues. If a girl wants to end marriage, she has to file a petition in the family court for obtaining a decree of Khula or on the basis of one of the ground “Option of Puberty” enumerated in the Dissolution of Muslim Marriages Act, 1939. The Act gives the family courts the authority to declare a marriage void if it involves a minor.

The Government of Punjab in March 2015 amended the Pakistan Family Courts Act, 1964 through Punjab Family Courts (Amendment) Act 2015 and gave exclusive power to the Family Court for trial of offences related to child marriages. In other provinces, these matters are still tried by magisterial court.

Child Marriage Restraint Act, 1929

The Child Marriage Restraint Act, 1929 is a law applicable in the Islamabad Capital Territory, Balochistan and Khyber Pakhtunkhwa regulating child marriages. The legal age of marriage is 18 years for boys and 16 years for girls.

The law defines child marriage as a marriage in which one of the two parties is a child. An adult man who marries a child is punishable with up to 1 month imprisonment or a fine of up to Rs.1,000/- or both. The punishment for solemnising a child marriage is up to 1 month imprisonment or fine up to Rs.1,000/- or both and the punishment for parent/guardian child marriage is up to 1 month imprisonment or fine up to Rs.1,000/- or both. Under the law, the court can issue injunction for stopping a child marriage.

Punjab Child Marriage Restraint (Amendment) Act, 2015

The Punjab Assembly has promulgated the Punjab Child Marriage Restraint (Amendment) Act, 2015, which provides for harsher penalties for child marriages and holds both the nikah khawan and the child’s guardians accountable. Underage (below 16 years of age) and forced marriage is a punishable crime and a charge of underage marriage can be filed with the police, the union council and the magistrate’s office. Family Court having judicial magistrate power can take cognisance on a complaint by Union Council. Court can issue injunction for stopping
a child marriage.

Under the Act, any person who marries a girl below the age of 16 years and the person who performs such marriage, including the Nikah Registrar, shall be punishable with imprisonment for a term which may extend to 6 months and a fine of PKR 50,000

PPC Section 310-A & 498-C: Customs such as Vani and marriage in lieu of compromise or marriage with the Holy Quran are illegal and punishable with imprisonment for a term of 3 to 7 years and a fine of PKR 500,000.
PPC Section 498-B: A person who forcibly marries a girl against her will shall be punished with imprisonment for 3 to 7 years and a fine of PKR 500,000.

Sindh Child Marriage Restraint Act, 2013

The Sindh provincial government enacted the Sindh Child Marriage Restraint Act (SCMRA) in 2013, raising the age of marriage for boys and girls to 18 and increasing the prison sentence to a minimum of two years. Child marriage is a cognisable offence and also a non-bailable, non-compoundable offence under the Sindh Child Marriage Restraint Act, 2013, which means that police can take action without seeking court permission. Under the Sindh Child Marriage Restraint Act, 2013, the court can issue an injunction banning child marriages on the application of a citizen. Although the person against whom an injunction is to be issued must be given, the court can dispense with it if necessary. The SCMRA, 2013, requires the court to conclude the case within ninety days. The Sindh Child Marriage Restraint Rules, 2016 provide that a medical certificate can be produced to prove age if the CNIC is not available.

Non-Muslim Personal Laws

Pakistan has enacted the Hindu Marriage Act, 2017 (HMA 2017), which regulates the solemnization of marriages in Hindu families. The HMA 2017 stipulates that both parties must be at least 18 years of age for a Hindu marriage to be performed.If either party to the marriage is not of this age, the marriage may be annulled by a court. In 2018, the Punjab assembly passed the Punjab Sikh Anand Karaj Marriage Act, which states that no man and woman of the Sikh community who are below 18 years of age may solemnise marriages. However, the minimum age for a native Christian man is 16 years and for a woman 13 years under the Christian Marriage Act, 1872 (CMA, 1872) to contract marriage. The Parsi Marriage and Divorce Act 1936 (PMDA, 1936) applies to Parsi living in Pakistan. The PMDA does not specify a minimum age for marriage, but instead provides that marriage of persons under the age of 21 must be with the consent of a guardian. It also prohibits any action to enforce a marriage where the husband is under 16 and the wife under 14.

Legislative Developments

On 21 March, 2023, The Balochistan government has informed the Federal Shariat Court (FSC) that the province has drafted a bill to ban child marriage, called the Balochistan Child Marriage Prohibition Act (DAWN). The bill will soon be submitted to the provincial assembly for approval, the court was told.
On 6 March, 2023 the FSC had dismissed a petition filed by a citizen challenging the illegality of the Sindh Child Marriage Restraint Act, 2013. The Court held that the law was in accordance with the injunctions of Islam and did not violate constitutional or Islamic provisions. The Sindh Act was enacted to prevent child marriages by setting a minimum age and to promote the protection of children’s rights by setting the minimum age of marriage for both men and women at 18 years. The Shariat Court had held in its order that fixing a minimum age for marriage was “mobah” (permissible) but not mandatory (farz). The age limit gives girls a reasonable time to complete their basic education, which contributes to the development of a person’s mental maturity (rushd), the court added. Setting an age limit for marriage by the state or a government does not violate the injunctions of Islam as laid down in the Holy Quran and Sunnah, the FSC explained. It added that in light of the objectives of Shariah (Maqasid Al Shariah), the state has the responsibility to protect the physical and mental health of a citizen. It said the state can take action and set certain minimum thresholds for an action to protect a person or a category of persons in order to block the means of harm or evil that may be associated with child marriage under the concept of an Islamic law.

Institutional Framework for Child Marriage in Pakistan

Role of Parents

Parents often play an important role in child marriages in Pakistan. In many cases, parents arrange marriages for their minor children without their consent. This is especially true in rural areas where poverty, lack of education and cultural norms contribute to a high prevalence of child marriages. It is important to note that consent does not count for much, even if the parents claim that the children have given their consent.

Role of a Nikah Registrar

In Pakistan, the Nikah Registrar is a government-appointed official responsible for registering marriages under Islamic law, also known as Nikah. For the purpose of registration, each Union Council appoints a Nikah Registrar in its area and this Nikah Registrar is licenced by the Union Council. The Nikah Registrar is only competent for marriages registered under Islamic law, leaving out other communities who marry off children in their own religious ceremonies are left out.

Registrars play an important role in protecting against illegal marriages, including child marriages and forced marriages. In a number of reported cases in recent years, the Nikah registrars, who were responsible for registering marriages and ensuring compliance with the law, did not fulfill their duties.

Role of the Union Council and the Cantonment Board Office

The Union Council is responsible for maintaining a marriage register and issuing marriage certificates/nikah nama to couples who have completed the registration process. Under the Pakistan Muslim Family Laws Ordinance 1961, all marriages involving at least one Muslim partner must be registered with the Union Council. The Cantonment Board Office issues Nikah Nama certificates to residents of cantonment areas in Pakistan.

Role of a National Database and Registration Authority (NADRA)

The National Database and Registration Authority (NADRA) is responsible for issuing computerised Marriage Registration Certificate (MRC). NADRA is a government agency that maintains a centralised database of all Pakistani citizens and provides various services related to identity verification, registration and documentation. Any adult married person in Pakistan can apply for Marriage Certificate from NADRA Pakistan, however the applicant must have Urdu Nikkah Nama prior to registration by the NADRA.

The computerised marriage certificate issued by NADRA is an official document that serves as proof of marriage and is recognised by various government agencies and institutions. The certificate contains important information about the bride and groom, including their names, ages, addresses and CNIC (Computerised National Identity Card) numbers.

Role of Police

The police have the authority to investigate cases of child marriage and arrest those responsible. Police are also responsible for ensuring the safety and protection of the child and for ensuring that the child is removed from the marriage. When a case of child marriage is reported to the police, they are required to investigate and file a report. The police can also take action to prevent child marriage, such as seeking an injunction from the court or conducting a raid to rescue the child.

Role of Child Protection Agencies (Bureau/Institute/Authority)

Child protection agencies in Pakistan, in principle and in most provinces as per their mandate, play a crucial role in preventing and combating child marriage. One of the main tasks of the child protection authorities in Pakistan is to provide support and services to victims of child marriage and their families. This includes counselling and legal assistance as well as referral to medical and other services.

Child protection agencies also work to prevent child marriages from occurring in the first place. They may conduct community outreach and education campaigns to raise awareness about the negative impact of child marriage and the importance of protecting children’s rights.

Role of Courts

Child marriage cases in Pakistan can be brought before different courts depending on the nature and gravity of the offence. The main types of courts in Pakistan that deal with these cases are:

Family Courts: these courts have jurisdiction over family and matrimonial matters, including divorce, child custody and maintenance. The family courts also have the power to deal with cases related to child marriages.

Criminal courts: Criminal courts deal with offences such as rape, abduction and forced marriage. In cases of child marriages, criminal charges can be brought against the parents or other persons who arranged or facilitated the marriage.

High Courts: The High Courts have the power to hear appeals from lower courts and may also exercise jurisdiction over matters relating to child marriages.

Supreme Court: The Supreme Court of Pakistan is the highest court in the country and can hear cases related to child marriages if they have been appealed by lower courts.

In addition to these courts, the government of Pakistan has established special courts and tribunals to deal with cases of violence against children under child protection laws. These courts have been established to ensure speedy trials and to provide a safe and supportive environment for victims.

Gaps and Challenges

Child Marriage Laws Do Not Dissolve Child Marriages

The Child Marriage Restraint Act, 1929, the Punjab Marriage Restraint (Amendment) Act, 2015, and the Sindh Child Marriage Restraint Act, 2013 do not provide provision(s) for dissolution of a child marriage under the respective Acts, if contracted or solemnised. The procedure is laid down in the Family Court Act, 1964, and the grounds for dissolution of marriages are laid down in the Dissolution of Muslim Marriages Act, 1939. This means a party wishing to obtain the invalidity of his or her child marriage must follow the procedures provided for in the applicable personal law governing marriage, which are often lengthy and costly (2).

Non-Muslims face similar issues also. The Christians Marriage Act, which applies to only Christians, does not contain provisions for annulling a marriage. This means that a person who wishes to end a child marriage must apply for divorce under the Divorce Act 1869, which allows divorce only if one of the parties has committed adultery, and allows annulment only on certain grounds(2).

Hindu girls can get their child marriages declared invalid by filing a petition in court under the Hindu Marriage Act, 2017. This court process is also likely to be costly and time-consuming (2).

Dissolution of Child Marriages under DDMA 1939 is restricted

The Dissolution of Muslim Marriages Act, 1939 (DDMA, 1939) allows Muslim girls to petition a court to dissolve their child marriages. However, the conditions under which the DMMA allows such dissolution are severely restricted. Dissolution is only possible for marriages contracted before the girl turned 16, and it must be applied for before the girl turns 18. Furthermore, it is only possible if the marriage has not yet been consummated (2). However, it is unlikely that a marriage will be unconsummated before a girl seeks to void it, especially given the obstacles girls face in accessing legal remedies to dissolve the marriage. Laws therefore places a significant practical burden on girls who must approach the courts before the age of 18 to have a marriage annulled, and girls who have been forced into sexual intercourse as part of a child marriage cannot have their marriage annulled under the DMMA, 1939 (2).

It becomes further challenging because court proceedings in Pakistan are often delayed, an action for annulment is likely to be expensive and drag on for several months, adding to the burden on girls who want to dissolve their marriage (2).

Inconsistencies between the CMRA and personal laws

There is also a lack of clarity on whether child marriage laws take precedence over conflicting personal laws regarding the minimum age for marriage. The courts in Pakistan have in past given judgements which interpret CMRA, 1929 in light of the uncodified principle in Muslim personal law that a boy and a girl can enter into marriage provided they have reached puberty. This severely undermines the effectiveness of the minimum age provisions set out in the CMRA, 1929.

On 9 February 2022, the Islamabad High Court declared unlawful the marriage of persons below 18 years of age and issued a written order on a petition filed by a woman seeking the return of her 16-year-old daughter, who had filed an affidavit stating that she had married of her own free will. The court order states that a female child under the age of 18 cannot be considered capable of freely giving consent to enter into a marriage contract simply because she shows the physical symptoms of puberty. A marriage contract in which one of the parties is a child under the age of 18 is therefore a contract executed for an unlawful purpose and has no legal effect. Such a marriage contract cannot be registered under the Muslim Family Laws Ordinance, 1961. Read the IHC Judgement.

Gaps in Child Marriage Restraint Act, 1929: There is discrimination in the age of marriage for boys and girls. Age cannot be determined without the mandatory requirement of CNIC for marriage. There is an insignificant penalty of 1 month or a fine of Rs. 1,000/-. Offences are non cognisable, bailable and compoundable. The complaint procedure before the Union Council is complex and complicated. There are no protection and rehabilitation mechanisms for available victims of child marriages under the law.

It is important to note that the statute of limitations for filing a complaint under the CMRA of 1929 is particularly restrictive compared to the statute of limitations for serious crimes such as murder and rape, for which there is no statute of limitations under Pakistani laws (2). There is only a one-year statute of limitations for filing a complaint for a violation of the law. This extremely short period limits the ability to prosecute and punish violations of the CMRA 1929, especially since young girls who have been forcibly married may not be able to challenge their marriages until they are adults.

Gaps in Punjab Marriage Restraint (Amendment) Act, 2015: There is discrimination in the age of marriage for boys and girls. Age cannot be determined without mandatory requirement of CNIC. There is a minor penalty of 6 months and a fine of Rs. 50,000/-. Offences are non cognisable, bailable and compoundable. The complaint procedure before the Union Council is complicated. There are no protection and rehabilitation mechanisms available for victims of child marriages under the law.

Gaps in Sindh Child Marriage Restraint Act, 2013: The penalty applies only to male adults who marry a female child. The amount of the fine is not fixed, i.e. a judge can only impose a fine of a few thousand rupees. Rigorous imprisonment of maximum three years is not sufficient. Cases are heard by a judicial magistrate instead of the family court. There are no protection and rehabilitation mechanisms for victims of child marriages.

Recommendations (1)

The issue of child marriage in Pakistan requires a multi-faceted approach that includes addressing the root causes of poverty, improving access to education, challenging traditional and cultural norms, and strengthening law enforcement and awareness-raising efforts. Below are a number of recommendations to prevent and prohibit child marriages in Pakistan.

Legislative Bodies: Parliament and Provincial Assemblies

All provisions in national and provincial laws relating to child marriages must be cognisable offences against which the police can take action with or without a complaint, as well as non-bailable and non-compoundable offence.
Increase the legal age of marriage for girls from 16 to 18 in the Child Marriage Restraint Act, 1929 and the Punjab Marriage Restraint Act (Amendment), 2015.
The provincial assemblies of Khyber Pakhunkhwa and Balochistan should enact laws to curb child marriage, setting the age of marriage for girls at 18 years
Marriage below 18 years should not be allowed under any law. It must be mandatory for the bride and groom to have a valid CNIC card at the time of marriage.
Pakistan’s laws prohibiting child marriages do not contain provisions for dissolving a child marriage once it has been contracted or consummated. It is important to simplify the procedures and invalidate marriages contracted below the legal minimum age and declare them invalid on any pretext such as custom, religion or traditional practices.
The procedures for verifying age are not very clear in the absence of a CNIC. Any other document, such as school enrolment certificate/matriculation certificate (if the bride or groom has it), B form, or Birth Registration certificate, should be attached as proof of age before solemnizing the marriage.
Strengthen existing structures at provincial, district and community level to combat violence against children including child marriages.
Eliminate inconsistencies in existing laws, i.e., Child Marriage Restraint Act, 1929, Sindh Child Marriage Restraint Act, 2013, and Punjab Marriage Restraint (Amendment) Act, 2015, and these laws should take precedence over personal laws regarding age of marriage.
Penalties for a person contracting a child marriage should be consistent with the legal provisions on rape under the Criminal Laws (Amendment) Act, 2021.
Review and amend the discriminatory laws against women in the area of divorce and maintenance, especially the personal laws as enshrined in the Muslim Family Laws Ordinance 1961, the Christian Marriages Act 1872 and the Hindu Marriage Act, 2017, which place serious procedural obstacles in the way of women seeking to end a marriage and which do not provide women with adequate financial security.
Review and revise the one-year limitation period in the Child Marriage Restraint Act, 1929 to ensure that complaints can be filed at any time.
The role of the police in preventing child marriages should be defined in the laws. Appropriate definition and substance clauses should be included in the law.

Government and Enforcement Agencies

Federal and provincial governments should develop a strategy to implement laws prohibiting child marriages.
Registration of all marriages should be ensured to minimise the risk of child marriages. SOPs/guidelines should be prepared and communicated to concerned authorities with strict instructions for compliance.
Birth registration of all children should be ensured and verification of age proof by marriage officials should be made mandatory.
Training should be provided to Nikah Khawan, Nikah Registrars, Child Protection Officers and the Police.
Political party leaders need to be sensitised on the issue of child marriages.
The government should initiate educational and awareness programmes through print, electronic and social media to highlight the negative impact of early marriage on a girl child and society as a whole and sensitise the community on the issue of child marriage.
Efforts to delay childbearing among adolescents should focus primarily on delaying marriage. Policies and programmatic strategies aimed at both delaying marriage and increasing educational attainment may be most effective in addressing both issues, particularly with reference to Article 25A and the Free and Compulsory Education Acts of the respective provincial/territorial governments.
Victims should have access to support mechanisms, such as medical services, protection services, psychological and reproductive health services, rehabilitation, compensation and legal support.
There is an urgent need for harmonisation between child and women protection agencies and local government CRVS functions, as well as improved coordination between the Department of Women’s Development and the Department of Social Welfare and other duty bearers such as the police, the judiciary, and local government officials responsible for registering marriages.
Strong referral mechanisms should be established between law enforcement agencies for the recovery, rehabilitation, placement and protection of a victim of child marriage. Develop coordination with child protection institutes and child protection units to ensure that they provide shelter, counselling, legal and other services to victims of child marriage.
Sufficient funds should be allocated in the budgets of relevant departments to ensure the implementation of laws prohibiting child marriages at provincial, district and community levels. More resources need to be allocated to monitor cases of child marriage, educate and train law enforcement agencies to implement the laws, and provide legal, medical and psychological support to girls who are subjected to human rights violations due to child marriage.
The government should Integrate child marriage prevention and gender transformation into existing conditional cash transfer programmes.

Judicial bodies: District Judiciary and Higher Judiciary

Ensure the protection of victims in court proceedings for the prosecution of child marriages, for example by not publishing their identities and allowing courts to order protective custody and waive the presence of the victim.
The superior judiciary should develop its rules for dealing with children. This will guide the subordinate courts, including trial courts, magistrates and other judicial bodies.
Hold government officials accountable who do not take action under the law to prevent and prosecute child marriages.
The superior judiciary should have the protection of the child in mind when making judgments to ensure the best interests of the child as provided for in international human rights law and standards.
Establish a mechanism to systematically track the progress of child marriage cases in court and the implementation of court judgments.
The judiciary should be guided by the guiding principles of child justice when it comes to children in contact and children in conflict with the law, so that children are better served and protected by justice systems.

National and Provincial Human Rights Institutions

Develop procedures for effective monitoring of the implementation of child-friendly policies and legal frameworks, as highlighted in the concluding observations of the UN treaty monitoring bodies and in the Universal Periodic Review process.
NCHR, NCSW, NCRC and Provincial Commissions on the Status of Women, Provincial Commissions/Authorities on Children’s Rights as independent bodies should review and examine existing laws.
National human rights institutions should conduct inquiries/fact-finding of child marriage cases and recommend actions to protect victims of child marriage.

Civil Society Organisations

Information, education and communication (IEC) campaigns and behaviour change campaigns (BCC) should be conducted to bring about change in policies, practices and behaviour of stakeholders.
Initiate mass media initiatives to raise awareness about the legal age of marriage and the penalties and punishments associated with the crime of child marriage.
Raise awareness about the disadvantages of child marriage, especially for girls and women, and the benefits of postponing marriage for individuals and the community.
Engage religious leaders and other community leaders and build their capacity to bring about behaviour change to eliminate child marriages.
Support victims of child marriages to access protection mechanisms and remedies, e.g. through legal counselling, legal aid and information on their rights and the procedures to claim these rights.
In-depth, evidence-based research on the impact of child marriages should be conducted at provincial levels.
Civil society organisations should develop a strong advocacy and lobbying strategy to address the problem of child marriage.
Civil society should focus its social marketing efforts on changing the social norms that accept child marriage and focus on maturity and adulthood.

References/Acknowledgements

(1) NCRC. Policy Brief: The Legal Framework for Child Marriage in Pakistan. Pakistan , 2022

(2) Centre for Reproductive Rights. Ending Impunity for Child Marriage in Pakistan: NORMATIVE AND IMPLEMENTATION GAPS. United States of America, 2018.

Contributors

Qindeel Shujaat can be reached at qindeel@obun2.com

What is Child Marriage?

Prevalence of Child Marriage in Pakistan