Child marriages have been one of the most problematic issues in Pakistan. The biggest issue relates to the age of majority, which under Islamic law is age of puberty while in other legislation it varies from the age of 16 to 18.
The issue of child marriages is related to a number of other societal issues and customary practices. Exchange marriages, forced marriages, practice of giving women and children in compensation in tribal/familial clashes etc all often include the element of child marriage.
A law was promulgated in 1929 to deal with the issue: Child Marriage Restraint Act 1929. While the law does deal with penalizing those who are involved in different facets of conducting child marriages, including parents and the husband etc, it does not declare the marriages invalid, thereby allowing child marriages with a minimal, outdated punishment. Nevertheless, if the law was implemented properly, and the relevant persons were brought before the court every time such a marriage happened, then there would be a good chance for better implementation of the law when people realize that they could actually be punished.
Apart from the 1929 law specifically dealing with child marriages, there are other provisions of law which deal with elements that involve child marriages, as mentioned above.
The different laws applicable to different situations and elements of child marriages are identified below.
Provisions of Law:
Child Marriage Restraint Act 1929
In this Act, unless there is anything repugnant in the subject or context,
- “child” means a person who, if male, is under eighteen years of age, and if a female, is under sixteen years of age;
- “child marriage” means a marriage to which either of the contracting parties is a child;
4. Punishment for male adult above eighteen years of age marrying a child.
Whoever, being male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
5. Punishment for solemnizing a child marriage.
Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both unless he proves that he had reason to believe that the marriage was not a child marriage.
6. Punishment for parent or guardian concerned in child marriage.
- Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with a fine which may extend to one thousand rupees, or with both;
Provided no woman shall be punishable with imprisonment.
- For the purpose of this section, it shall be presumed, unless and until contrary is proven, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.
Pakistan Penal Code:
310-A. Punishment for giving a female in marriage or otherwise in badal-i-sulh:
Whoever gives a female in marriage or otherwise in badal-i-sulh shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than three years.
A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,
- against her will
- without her consent
- with her consent, when the consent has been obtained by putting her in fear of death or of hurt,
- with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
- With or without her consent when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
376. Punishment for Rape:
- Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years, or more than twenty-five years and shall also be liable to fine.
- When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.
493-A. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage:
Every man who deceitfully causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief, shall be punished with rigorous imprisonment for a term which may extend to twenty-five years and shall also he liable to fine.