By: Nabila Feroz Bhatti
On April 8, the Gilgit-Baltistan Chief Court presented Falak Noor with a choice; she was asked if she wanted to go with Fareed Alam, her husband, or with her parents. The Chief Court directed the police SSP Gilgit to arrange security so she could reach her chosen place within the District of Gilgit freely.
Did the verdict fail to give any consideration to a number of aspects including that Falak was a child? She was under the influence of her abductors including her so-called husband? She had been living with them for two and half months and was kept in the Dar Ul Aman only for five days. The child was not provided with any psycho-social rehabilitation there. She was emotionally unstable and clearly under the pressure. Ultimately, she decided to go with her seventeen years old husband.
Falak Noor’s case made social media headlines, gaining attention over time. Civil society protested and demanded that Falak Noor should be recovered and sent back to her parents. According to her legal documents, she is twelve years old. The court disregarded the official Form B of the National Database and Registration Authority (NADRA) and the birth certificate issued by the hospital where the child was born, for reasons undisclosed. A medical board had determined the girl’s age to be between 13 and 16 years. The assessment conducted by the medical board has raised significant concerns regarding its accuracy and reliability.
“This is very disappointing. The verdicts like these would only be opening the door for more cases of child marriages. They should have at least told the girl that she could marry only after reaching the right age, till then she could stay in the child protection unit. Instead they gave her away to the abductors” said Israruddin Israr, regional coordinator of Human Rights Commission of Pakistan.
Retired Justice Nasira Javaid Iqbal mentioned, “This hurried verdict by Gilgit court is distressing. They have not considered that Falak Noor is not in a position to give a sound statement since she is under a lot of stress. Court allowed her to leave with the so-called husband who himself is a child. He actually needs a guardian”.
Child Rights Expert, Advocate Syed Miqdad Mehdi commented, “obviously the judgment of the Chief Court is not in the best interest of child and in accordance with Child Rights principles.”
In the cases of forced conversion and forced marriage the aspect of “informed consent by sui juris” is also ignored by the courts in the country and the investigations fail to adopt proper procedures. For instance, on August 4, 2020, at Lahore High Court, Judge Raja Muhammad Shahid Abbasi remarked on Maira’s bogus marriage document, “our grandparents or parents tied the knot at a time when no marriage certificates were issued, but their marriages were considered valid”. The court then decided in the favour of Muhammad Nakash Tariq, the abductor, ruling that the girl had willingly embraced Islam.
Nonetheless, the schoolgirl fled five days after the court’s ruling. Maira Shehbaz claims she was abducted on April 28 from Faisalabad and held prisoner in a basement. She alleges that her captors drugged and raped her before forcing her to convert to Islam to marry Naqash.
However, there is a brighter side too; the superior courts in various judgments held that the prime duty of the State is to protect the children from abuse and exploitation. Justice Anwaar ul Haq Pannu, Judge Multan Bench of Lahore High Court has delivered a very detailed judgment on child marriages, lacunas in the law, role of Nikah Khawan and the bad effects of child marriages in 2019 in the case Tahira Bibi Vs. SHO and others. In another case Alishba Bibi Vs the State, the Islamabad High Court issued directions to the federal government to curb the evil of child marriages from the society.
Additionally, in a case Farooq Omar Bhoja Vs Federation of Pakistan held that setting minimum age for marriage is not against Quran and Sunnah, rather it is in consonance with injunctions of Islam. In another case, Mumtaz Bibi Vs Qasim and others, Justice Babar Sattar of the Islamabad High Court stated that marriage of children under the age of 18 is unlawful and the marriage contract is void ab initio. The Court further held that Pakistan is under obligation to enforce the provision of the United Nations Convention on the Rights of the Child (UNCRC).On 9th April, Justice Shahid Kareem from the Lahore High Court has directed the Punjab Government to end the age-based discrimination for marriage within 15 days.
What does the law say?
Gilgit-Baltistan has no law regarding child marriages in which case the national law applies. Currently, federal law sets the legal marriage age at 16 for girls and 18 for boys, setting different and thereby discriminatory marriageable ages for girls and boys.
After 2010, the prevention of child marriages became a provincial subject. Sindh is the only province so far to have passed a law barring marriage under 18. The Sindh Child Marriages Restraint Act, 2013, makes underage marriage a cognizable and non-compoundable offence. This means that the police can take action on their own to arrest offenders upon any information, and no private conciliatory deals can be made between families, communities or Jirgas to bypass the law.
The Punjab Marriage Restraint (Amendment) Act, 2015, still permits girls to be married at 16 while the age of boys is 18 years. Khyber Pakhtun Khwa and Baluchistan continue to be governed by the 1929 Act, like the federal law.
Furthermore, it is imperative to adhere to international conventions such as the UNCRC and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) where the age for marriage is18 years. Pakistan’s commitment to these treaties necessitates taking proactive measures to combat child marriage and protect women’s rights. Pakistan is obligated to align national laws with the ratified conventions and to implement these laws.
Under the UN Sustainable Development Goals (SDGs), countries around the world, including Pakistan, have pledged to end marriages before age 18 by the year 2030.
Consent is the basic principle for marriage, in which both persons should independently be able to accept or refuse according to their own free will. Does a child’s consent constitute informed consent? Is a child intellectually mature enough to make a wise decision and be able to take care of themselves, let alone a family?
Marriage is a longtime contract, and a child who does not even understand what a contract is cannot be expected to choose her life partner. When a child is not allowed to hold a Computerized National Identity Card (CNIC), does not have her driving licence, cannot vote, cannot enter into contracts, how can she be eligible for marriage?
Contending child marriages
An inclusive set of legal, policy and administrative measures is required to combat child marriages.
To save children from child marriages, legislation in the entire country must enforce restraint, be it any territory. Specifically, in Falak Noor’s case, the representatives of the Gilgit Baltistan must take proactive steps by introducing a resolution to establish a minimum age limit of 18 years for marriage.
State and government personnel (judges, police, medical officers etc.) involved during the reporting, investigation and prosecution of child marriage cases should be sensitized and held accountable on the issue.
There must be empowered local bodies government in place to ensure that legal safeguards are implemented in letter and spirit. For stronger implementation, the provision of CNIC should be made mandatory for registration of marriage.
All Human Rights Institutions and civil society organizations must support the cause and advocate for the enactment of robust child protection laws. The National Commission on the Rights of Child, must take notice of the problem and offer suitable policy recommendations.
Special safeguards are needed for victims. Their protection, privacy, confidentiality, restitution, trauma healing, rehabilitation and fair legal participation is required. There must be pro bono legal facilities and expedited procedures before, during and post-trial.
A nationwide campaign can help raise awareness on the damaging effects of child marriages. The public should be aware of the harms associated with such practices, punitive laws pertaining to child marriages and related crimes. Parents need to be more sensitive regarding child protection so that their children are not victim of pedophilia and child sexual abuse. To combat child marriages, education for every child is a must. This will help enable our future generations to live healthier, better and freer lives in a more thriving Pakistan.
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