EDITORIAL: According to UNICEF, Pakistan has nearly 19 million child brides. That is the 6th highest number of girls married before the age of 18 in the world. The reasons for this perpetrated slavery include traditions, customs, poverty, lack of awareness and access to education. Their forced marriage is akin to slavery. They have been robbed of their childhood and prospects.
To a conscientious mind it should not have happened, and that mind has been encapsulated in Sindh, where the curse of child marriage is prevalent, although the province has ‘Sindh Child Marriages Restraint Act, 2013’. The said law being the creation of state its implementation is compulsory and violation a crime.
But that is unacceptable to some, who insist that fixing the girl’s marriage at 18 years is un-Islamic. Ali Azhar is one such individuals, who had married an underage Hindu girl after she converted to Islam but was not allowed to live with him.
He petitioned the Federal Shariat Court on Monday to declare ultra vires the said act as it, according to him, is against the injunctions of Islam. His earlier suits for restitution of his conjugal rights in the family court and the appellate court had been dismissed. So he approached the Federal Shariat Court, which too dismissed his plea as the court upheld the state’s right to fix the age of the girl for marriage at 18 years.
The Federal Shariat Court observed that enacting legislature’s move was in accordance with injunctions of Islam as laid down in the Holy Quran and Sunnah. The court also directed the police to proceed against the petitioner for violating the law, which also lays down penalties for the person who solemnizes the marriage as well as the parents or guardians concerned.
In its judgement, the two-member bench of the Federal Shariat Court noted that puberty was only one factor necessary for marriage under Islamic law, and no less important are considerations of financial well-being, health and mental maturity of the girl to be married. “Setting a minimum age for marriage, i.e., an act which is mubah (permissible) and not absolutely mandatory (farz) like marriage is in accordance with the injunctions of Islam, because such fixation of minimum age limit provides reasonable time to girls to complete basic education, which normally helps in developing mental maturity (rushd) in a person,” the court added.
The court also noted that as per Islamic law a wife is supposed to protect the rights, property and honour of husband while her husband is also bound to do so.
The shariat ordains that protection of physical health as well as mental health is the duty of the Muslim state. “Likewise, (the state is bound) to block the means of harm or evil that may be attached to child marriage under the concept of Islamic law called Sadd al-Dhara’I”. Regarding the argument of the petitioner that fixing age would affect old, aged parents, who wanted to marry off their underage daughters in their lives, the court observed that this point can be considered as relevant in some exceptional situations, but it is not the main point in the petition.
However, in exceptional cases, the Sindh government is the relevant forum, the court observed, adding the state can take steps and set certain minimum thresholds for undertaking an act to protect that person or category of persons. Hopefully, the Federal Shariat Court’s elaboration of the state’s right to fix the girl marriage age would help restrain - by the force of law - and thus help Pakistan give up its privilege to be a safe haven for child marriages.
Copyright Business Recorder, 2023