Child marriage, Legal reform

Child marriage in Pakistan: Legal ambiguities & landmark judgements


The recent child marriage case of Dua Zehra has sparked outrage across news outlets and social media, reigniting a socio-legal debate within Pakistan. Dua went missing from her home in Karachi on April 16th, and was later discovered in Lahore, already married, supposedly based on mutual consent.

Over the last four months, the case has been making headlines, as new information and verdicts are being challenged by both sides. In particular, Dua’s age was a focal issue. Her parents stated that she was 14 years old, while she claimed to be over 18 years (later investigations revealed she was pressurised into making such statements). However, the results of a medical examination conducted to determine her age stated that Dua was between 16 to 17 years of age.

This case is not a one-off instance. Child marriage in Pakistan is a persisting issue consisting of socio-cultural traditions, religious nuances, and legal overlaps. Public opinion on the issue remains divided; some claim that consent is the key factor, while others emphasise the crucial importance of universal minimum age without any gender discrimination.

Legal background of child marriage in Pakistan

In 2010, under the 18th Amendment to the Constitution, power was devolved to provinces and legislation on child marriage began to take place at the provincial level. Under this framework, there was progressive legislation in Sindh in 2013 and the legal minimum age in the province was raised to 18 years. However, the legal age for marriage varies across provinces; for example, in Punjab and Islamabad Capital Territory (ICT) it is still 16 years. This lack of geographical uniformity creates loopholes in the law; for instance, in the case of Dua Zehra it is ambiguous which law is applicable as the minor comes from Sindh but was married in Punjab. Activists working to protect child rights demand that the minimum age for marriage be set at 18 years across the nation.

Pakistan is a party to the UN Convention on the Rights of the Child (UNCRC), which states the legal age as 18 years, hence Pakistan is obliged to adhere to its conditions. Despite this legal framework, child marriage is a reality in Pakistan, and disproportionately higher in the case of underage girls.

However, two recent landmark judgements have brought multiple aspects of the debate to the fore and made clear legal demarcations. Namely, these are the Federal Shariat Court ruling (October 2021), and the judgement of the Islamabad High Court (February 2022). These two recent judgements complement the struggle’s goals for law reform.

Significance of Islam and the ruling by Federal Shariat Court

It is important to point out that much of Pakistan’s legal framework is borrowed from or an extension of the colonial laws set up pre-independence. The Child Marriage Restraint Act of 1929 defined child marriage as a crime and imposed fines and punishment for offenders. The petition to the Federal Shariat Court (FSC) challenges Sections 4, 5 and 6 of the Act as un-Islamic. The petitioner’s argument was based on the Hadith, which said that one of Prophet Muhammad’s wives was married to him at the age of six years and that the marriage was consummated when she was nine years old. Hence, the petition argued that there was no minimum age in Islamic tradition, and that setting an age limit was in fact un-Islamic. However, the FSC dismissed this petition and passed a landmark judgement stating that it was not against Islam to set a minimum marriage age for both girls and boys.

The scope of the FSC is to “examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet”. Therefore, the sources through which it derives its logic are within this scope, and in recent years they have also depended on laws functioning in other Muslim countries.

One compelling argument provided was that early marriages have a negative externality for modern day society, and Shariah states that “if any act appears to be harmful to the society collectively or to a particular segment of a society, the State has power to make that act prohibited so that the society can be protected from a larger damage”. This implies that if there is consensus amongst the legislative body that a certain occurrence is harmful to the community, they have the capacity to outlaw that insofar as it does not go against Islam.

Secondly, if a minor girl’s marriage has been solemnised by her guardian, Islam gives the girl the right to cancel her Nikah (a marriage contract made under witnesses, given one has the capacity to marry) once she reaches sixteen years of age (if the marriage not yet been consummated), emphasising the value of informed consent.

The judgement also highlights that knowledge acquisition is mandatory in Islam for both genders, citing Quran and Hadith to support this. Islam pushes for intellectual development, and early marriage often jeopardises this growth given the structure of present-day society. Additionally, many Muslim countries have a minimum age for marriage, reflecting that Islamic scholars and governments have not seen this practice as un-Islamic.

Islamabad High Court’s stance

The Islamabad High Court (IHC) has a wider jurisdiction than that of the FSC, thus the judgement appeals to a broader spectrum of reasons, ranging from legal sources, such as the constitution itself, to Islamic law and the criminal justice system.

For the IHC, the issue was whether an underage girl of 15 years, who had purported to execute a valid contract of marriage, could actually do so, and whether the minor was to stay at a shelter, returned to her mother (petitioner) or go with her husband. The IHC judgement held that the minor would be released from the shelter to her mother; the judgement stated that a child is defined as a person who has not attained the age of 18 years, and “a female child cannot be deemed competent to freely grant her consent to enter a marriage contract merely because she manifests the physical symptoms of having attained puberty”. It said any marriage where one or both of the parties is a child, the contract would be unlawful and void. Additionally, any sexual activity with a child would be a criminal offense, and neither the child nor his/her guardians have the right to give consent in such a case, even under the cloak of marriage. It also reinforced that the State is under the obligation to uphold and guarantee rights of children.

The judgement also argues based on the logic employed by administrative measures, where the age of 18 is a requirement to get an ID card, a driver’s license and to vote. From an international perspective, the judgement takes into consideration norms and legal obligations, such as UNCRC. Most importantly, the IHC judgement emphasises psychological development; it most ardently argues that just because puberty is a sign of physical readiness, that in no way implies maturity: “Merely because a child has grown physically and biologically to an extent that she can endure sexual activity or intercourse does not automatically mean that she has the legal capacity to marry or the agency to contemplate the consequences that marriage entails”.

A step in the right direction

The struggle against child marriage, in relation to law reform pursuant to the 18th Amendment, has been going for more than a decade now. Judgements like this are important because they augment the child marriage movement on the ground, pushing forward the agenda for law reform.

In Pakistan, questions of this nature are heavily influenced by the Council of Islamic Ideology and are prone to backlash from the public and the administrative machinery. Previously, this law was a bone of contention amongst the religious right wing, but now that the Shariat court and a mainstream High Court are both supporting the same cause, albeit from different angles, it gives the overall struggle more holistic support.

While on paper the law says the minimum age is 16 years in Punjab and Islamabad, the fact that a High Court has given the ruling for minimum age as 18 poses an imminent challenge for the government. Due to its controversial nature and history, no government wants to be at the forefront of law reform, but these aptly timed judicial interventions have raised the stakes, and the issue is no longer one that can be swept under the carpet.