Child Marriage in Pakistan – Unpacking the Debate on Minimum Legal Age
Introduction
Child marriage in Pakistan is a multifaceted issue, consisting of varying legal dimensions and deeply rooted socio-cultural norms. The topic has been sporadically highlighted over the past two decades. In 2013, Sindh passed legislation to make 18 years the legal age of marriage, and it remains the only province in Pakistan to do so. In the rest of the country the legal age is still 16 years.
The subject of child marriage became widely discussed and highlighted recently due to the Dua Zehra case, in which an underage girl from Karachi got married in Punjab. The case became a catalyst for discussion and different debates resurfaced. There was ample discussion on laws, or lack thereof, and loopholes within the laws pertaining to this matter in question. Child marriage in Pakistan is an on-the-ground reality with many highly nuanced contributing factors.
Diverging Opinions on the Matter of Age
There are two points of view about the age of child marriage. On the one hand, there are activists who believe that age should be a strict parameter that is coherently applied in all cases of child marriage. The argument follows that even if a person consents to a marriage, if he or she is under the age of 18 years, then he or she will be considered a child in legal terms and the consent of a child would be invalid.
On the other hand, the opposing view maintains that all cases of child marriage are not equal and cannot be treated as such, especially keeping in mind Pakistan’s socio-economic dynamics. Holders of this stance argue that there must be a way to discriminate between cases where the vulnerability of a child is being abused and differentiate them from cases where a child is practicing agency to take an important decision regarding their own life, a right which they are often deprived of.
This debate predominantly affects young girls, since they are the usually the ones involved in child marriage cases, either forcefully through their families or by their own consent. Both sides of the debate agree that marriage under the age of 16 years should be unlawful and punishable, but the matter becomes complex for cases dealing with girls between ages 16 to 18 years old. This contention between agency and consent is a nuanced debate and these girls can easily be, and often are, abused or exploited under the premise of false agency. Some feel that the difference between early marriage and forced marriage needs to be revisited and reevaluated. For example, some argue that a marriage taking place with the consent of both parties at the age of 17 years is better than a forced marriage at 18 years of age.
Conversations with Lawyers/Activists on Child Marriage
To bring some of these debates to the fore on International Women’s Day 2023, we dove deeper into both ends of this question with two Karachi-based lawyers, Sara Malkani and Rana Asif Habib. Both Sara and Rana are activists and experts in their field and have seen at close hand how the layout of the law impacts these minors, as well their families and communities.
In Conversation with Rana Asif Habib
Keeping in mind “the best interest of the child”, Rana Asif Habib approaches the issue from the perspective of legal uniformity and international benchmarks. If anyone under the age of 18 years is considered a minor, then this should apply across the board to all laws related to children. Exceptions should not be made in the case of the child marriage law, and the consent of a minor cannot be deemed valid. He discusses the side effects of “allurement psychology”, how children are curious by nature and how that vulnerability can be exploited or abused. Sharing from his experience, he elaborates on the far-reaching consequences early marriages. He makes a clear distinction between “early marriage” and “forced marriage”, arguing that though these two issues may overlap at times, they are still two separate issues and the strategies to tackle them need to be made accordingly.
President of Initiator Human Development Foundation, Rana Asif Habib is a Karachi-based lawyer and Advocate High Court. He is member of Sindh High Court Bar Association, as well as a member of Karachi Bar Council. Additionally, he is vice chairman of International Peace Commission International and a member of Inspection Committee Prisons. His fellowships include Ashoka Fellow (USA), IVLP Fellow (USA) and CREP Fellow. He is a sociologist and a founding member of Child Rights Movement (CRM).
In Conversation with Sara Malkani
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Strongly supporting “the best interest of the child”, as stated in Section 3 of UNCRC, Sara Malkani takes the stance that the child marriage law cannot be seen in isolation. She argues that Pakistan’s socio-economic and cultural context needs to be considered when dealing with child marriage cases, and that the agency of a minor cannot be completely undermined. She also talks about the harsh reality of Pakistan’s legal system which criminalizes and regulates an adolescent’s sexual life and choices, something which goes against international practice. Malkani highlights the value of agency and how it must be considered, especially in cases of “self-arranged child marriages”. The law was meant to target forced marriages, yet they go unnoticed and unreported. Building upon the theory of “evolving capacities of children”, she argues that each case should judge based on facts, evidence, and most importantly, the capability and consent of the minor involved.
Sara Malkani is a lawyer and advocate based in Karachi. She practices in the District Court as well as the High Court. She is also the advisor for a human rights organization called Center for Reproductive Rights. Much of her work is centered around human rights, especially as it pertains to Child and Women rights. As a lawyer and an advocate, she has worked incessantly on adolescent sexual and reproductive rights, and child marriage as it relates to that.