Sibah Farooq
THE devastating floods in the country, washed away a lot more than we could imagine, they washed away the future, hope and happiness of a generation of children. There are alarming reports from Balochistan that families from low income backgrounds, who were most impacted by the deadly floods, have resorted to selling their underage daughters in forced marriages in order to face their mounting debts. In exchange for meagre sums of money, girls as young as 10 and 11 years are being married off to elderly men. The Provincial Disaster Management Authority (PDMA) conducted a survey of 14 districts in Balochistan and uncovered an alarming increase of almost 15% in the number of cases of selling of female children.
“Climate Brides” is a phenomena well known in the African region and now is fast becoming rampant in the largest province of Pakistan. Climate brides are those unfortunate little girls who have been forced into this extreme form of persecution in the name of child marriage, due to the climatical disasters that have impacted their families. These girls mostly belong to the families of daily wagers, who earn not more than PKR 500 daily and have found themselves in an extreme situation of poverty and helplessness, after the complete infrastructure fall out and displacement that has followed the mighty floods that devastated many regions in Pakistan in 2022. The Partiarchal structure of our society, inevitably, places women and girls, marginally above animals in a time of crises, as their lives are valued far less than those of men and they find themselves more than often paying a price during difficult times.
The issue of Climate Brides is stemming from the long acceptability of the concept of child marriage in Pakistan. Why has this practice continued and is still used as a tool to gain monetary benefits in times of natural disasters or financial crises? The answer lies in the failure of the laws that exist and in the failure of the legislature to enact the laws that are needed. The Child Marriage Law in Pakistan is poor, inept, outdated and leaves ample room for forced marriage of minor girls to older men. The Child Marriage Restraint Act 1929 was passed at a time when the existing law declared the age for legal marriage as no less than 14 for males and 12 years for females and this was resulting in numerous cases of child marriage and thus the new law of 1929 was introduced to increase the age of males to 18 and females to no less than 16, wherein a marriage would be held to be legal.
Law must evolve with time, however after 1929 no one was interested to address the deficiencies in this law. The province of Sindh is the only province of Pakistan which was able to pass the Sindh Marriage Restraint Act in 2014, increasing the legal age of marriage of girls to 18 instead of 16 years. The other provinces, including Baluchistan, have been unable to make any such amendments.
In Baluchistan where the problem of climate brides has accelerated, the punishment for contravention hardly much of a deterrent. If a marriage takes place between children, a male under the age of 18 and a female under the age of 16, the facilitators or those who neglect to prevent this marriage, are merely punishable by one month imprisonment and a fine of PKR 1000. In neighboring India, the punishment for the abetting the crime of child marriage is imprisonment of upto 2 years and a fine of 2 lakh INR.
Further, it is most alarming that the law in Pakistan is silenton the validity of a child marriage once it takes place. As a result, the onus lies on the child who has been forced into a marriage to approach the courts and request that the marriage be declared void. In reality, this rarely happens! The tiresome, overwhelming and costly legal procedure to end such a marriage is beyond the capability of any young child who is already battling the trauma of having been forced into a child marriage.
Pakistan’s international obligations in this context are contained in the United Nations Convention on Rights of Child (UNRC), which was ratified in 1990. The convention clearly states, without gender differentiation, the age of a child as a person below 18 years. In February 2022, Justice Babar Sattar, in a landmark judgement of the Islamabad High Court (Mumtaz Bibivs Qasim), invoked Pakistan’s international obligations and upheld that marriage of children under the age of 18 is unlawful and the marriage contract is void ab initio. It is essential for lawyers and enlightened citizens, who are working to end the present pandemic of child marriages in Balochistan, to understand that until a uniform all-inclusive law on the subject is enacted with applicability across the entire country, a child marriage must be tackled as a crime involving multiple offences. It is an offence of Child Marriage, Forced Marriage, Child Rape and Child Sexual Abuse!
The Islamabad High Court made it clear in the above mentioned case that, a child marriage is a criminal law offense under the Pakistan Penal Code. Particularly, under the Protection of Women (Criminal Laws Amendment) Act 2006 (the 2006 Act) and the Criminal Law (Second Amendment) Act 2016 (the 2016 Act). The 2006 Act amended the Pakistan Penal Code 1860 (PPC) and inserted sections 375 and 376. The High Court stated that these sections prohibit sexual intercourse with a child under the age of 16 and marriage is understood as a legalization of sexual relations with the intent to procreate. The Court added that even if a child were to consent to engaging in sexual intercourse, the action of the accused would still constitute rape for purposes of section 375 and would be punishable with death or life imprisonment under section 376. Further, the High Court observed that the 2016 Act added sections 377A and 377B to the PPC. The sections define the attempt to persuade, induce or entice a child below the age of 18 to engage in any sexually explicit conduct, either with or without their consent, as an offence of sexual abuse, punishable with a jail term of up to 25 years. Justice Babar Sattar made a very intelligent observation that in view of the 2006 and 2016 amendments and Pakistan’s obligations under the provisions of the UNCRC, any contract of marriage where one of the contracting parties is below the age of 18 would be a contract which is executed for an unlawful purpose (child rape and sexual abuse). The High Court held that as a result, such a contract would be void ab initio under the Contract Act 1982. Therefore, the marriage contract can neither be registered nor can it be given effect to by a court.
To save the little girls of Balochistan and to end the cruel practice of child marriage, a uniform law is required which prescribes stringent punishments for the offence and until that time its important to understand the crime of child marriage in view of the judgement of 2022 of the Islamabad High Court.
