Abstract
Despite global progress, Pakistan struggles with the challenge of child marriages, owing to anachronistic laws and ineffective enforcement. Girls Not Brides, an international non-governmental organisation, reports that 18% of Pakistani girls are married before their eighteenth birthday. The Child Marriage Restraint Act, 1929 (‘CMRA’ or the ‘Act’) is almost a hundred years old, enacted to restrict marriages amongst underaged children in the Indian subcontinent. While many countries have developed and adopted effective legislation tackling child marriages, Pakistan still subscribes to this archaic Act. The state has taken few legislative steps to outlaw child marriages, and these efforts have largely been unsuccessful in domesticating international treaty requirements or curbing child marriages. This paper examines the factors contributing to child marriages in Pakistan and the relevant jurisprudence, and recommends that significant legislative changes be introduced by the Parliament. This paper suggests that underaged marriages should be invalidated, greater punishments should be imposed on Nikah (marriage contract) registrars for solemnising child marriages, and medical boards should be constituted in cases of ‘disputed ages’. In sum, a comprehensive overhaul of the law on child marriages is needed to completely do away with this practice.
Introduction
Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973 (the ‘Constitution’) provides for the protection of the family, the mother, and the child, while Article 37 of the Constitution specifically prescribes the promotion of social justice and eradication of social evils. Whereas the Constitution has guaranteed these rights, domestic legislation, in the form of the CMRA—which is nearly a hundred years old—has been unable to restrain child marriages adequately. By continuing with the archaic provisions of the CMRA, the state has been unable to cater to the morphing social conditions of the modern day and has also failed to comply with its international commitments.
Furthermore, the Parliament’s reluctance to amend the law has contributed to some perturbing contradictions in the jurisprudence. As suggested by numerous recent decisions of the Pakistani courts, only an all-encompassing reform effort can put the issue of child marriages to rest once and for all and bring the domestic legislation in line with country’s international obligations and commitments.
Background
I. Prevalence and Impact of Child Marriages
As per the United Nations International Children’s Emergency Fund (‘UNICEF’), a child marriage ‘refers to any formal marriage or informal union between a child under the age of 18 and an adult or another child.’2 According to an Islamabadbased non-governmental organisation, there were 119 cases of child marriages reported in Pakistan in 2020, of which 95% and 5% involved girls and boys, respectively.3 Girls Not Brides further reports that ‘18% of girls in Pakistan are married before their 18th birthday, and 4% are married before the age of 15.’4 UNICEF notes that in 2018, 4.6 million girls in Pakistan had been married before the age of fifteen, and 18.9 million had been married before the age of eighteen.5
