The evil child marriage is

By I. A. Rehman

The plight of two 12-year old girls, one described as Christian and the other as Muslim, has again highlighted the large-scale abuse of women’s rights in Pakistan caused by a single evil practice-child marriage.

When Asiya was recovered from the clutches of her husband in a village near Lahore she bore quite a few marks of brutality including broken bones. She had also been given electric shocks. The husband did not deny beating the girl or subjecting her to other forms of violence. He justified his bestiality on two grounds. First, the girl had run away from her husband’s house more than once and therefore she deserved to be whipped. Secondly, her father had condoned the girl’s thrashing, had washed his hands off her, and had allowed her master to do with her as he pleased.

Countless women, girls and adults both, have undergone the ordeal suffered by Asiya. She is fortunate that the police recognized their duty to rescue her from a house of terror because generally they do not interfere in cases of wife-bashing. There have been instances when the judiciary too has declined relief to a woman battered by her husband. Some time ago a 13-year-old girl, who had been mercilessly beaten by her much older husband, sought relief from the Lahore High Court. The court declined to intervene because it could not proceed against the girl’s legally wedded spouse.

Women who go to the police to complain of violence by their husbands are usually told to make up with their tormenters. Three reasons are given for this advice. First, it is argued that the husband has a right to apply physical force to compel the wife to obey him and that it is always wayward or rebellious women who invite punishment. Secondly, the complainant is warned that litigation takes long to bear fruit and that women generally do not have the resources to wait for justice. And, thirdly, the woman is told to take into consideration the tribulations she will face after losing her husband’s protection, especially when the doors of parental dwelling have already been closed on her.

The police view unfortunately does not conflict with the social attitude towards women that are victims of domestic violence. For several decades, especially since General Zia-ul-Haq decided to reverse women’s march towards freedom and equality with men, the Pakistani male has been allowed the right to use violence not only against his wife but also against any female member of the family. This privilege is now upheld by a larger proportion of the male population than was the case a few decades ago. Religion is used to convince women to accept getting clubbed by their husbands as a duty. Many of them see no wrong in getting roughed up by their husbands or other male members of family.

The part attributed to Asiya’s father in this story is quite common in Pakistan. Most families, especially economically weak ones, try to pack their daughters/wards off in marriage as early as they can. Every now and then the media picks up a story about a little girl being sold for a paltry amount. One has seen a declaratory deed duly written on a stamp paper by a professional petition writer whereby a man sold his daughter in marriage against a small payment. Sale of girls under the pretext of marriage is not confined to any particular faith or sect. People belonging to different religions have been guilty of buying and selling brides. The authorities know it, the politicians know it and so do the media persons. All of them seem to have surrendered to a most evil practice because they think nothing can be done about it. Asiya’s story will also be forgotten within a few weeks and the matter will disappear from the public radar till another Asiya’s story finds its way to the front pages.

In the second case the Lahore High Court ruled that a girl, who was below the marriage age, as prescribed in the Child Marriage Restraint Act, but had attained puberty, had a right to take a husband without the consent of her parents. The issue had arisen when the father of 12 and a half years old Zeenat lodged an FIR under the Zina Ordinance to the effect that she had been abducted by a neighbour and that they had been living together in sin. This story was denied by Zeenat, by now pregnant, and she firmly chose to stay with her husband.

There can be no argument against the court’s decision to save the girl’s marriage and the future of her child, and to frustrate her unreasonable father’s bid to join the crowd that has been abusing the provisions of the Zina Ordinance. However, by virtually striking down the minimum age for girls’ marriage the decision has raised two issues which need to be examined dispassionately.

First, the court followed a strict interpretation of the law which says that a girl can be given away in marriage on attaining the age of 16 or puberty, whichever is earlier. It also dealt a blow to the argument about the wali’s consent being essential for a woman’s marriage by declaring that a girl who is considered fit to marry also has the right to choose her life-partner. In the process the evil that child marriage is apparently got overlooked. The question now is whether courts should have nothing to do with social evils that come to their notice and which somehow enjoy legal sanction.

Countless examples can be given of references by the judiciary both before and after independence to the need for changing laws that conflict with basic rights or principles of natural justice. However, Pakistani courts are generally wary of taking exception to any provision of law that is defended on the grounds of belief. The difficulties the judiciary faces in questioning practices presented as religious injunctions cannot be ignored, but the reluctance to demand satisfaction on the authenticity of the religious argument involved cannot be appreciated. The least the judiciary can do is to call for an authoritative review of the legal formulation.

The second issue is whether Pakistan has decided to abandon the struggle our society has made for decades to abolish child marriage. It is worth recalling that one of the Quaid-e-Azam’s most notable contributions to law-making in the subcontinent was his success in 1929 in extending the scope of the Sarda Bill, whose mover had sought to create restrictions only on marriages of small Hindu girls, to Muslim girls as well. He was opposed by almost the entire body of Muslim clergy, except for Maulana Shibli Nomani. It was as a rejoinder to them that he had declared that he was answerable only to the voters in his constituency and not to clerics, and that if these voters were so backward as to disapprove of restraints on child marriage he would ask them to elect someone else in his place. In the course of his speech on the Bill he said that he did not pretend to be an alim or an authority on theology but that during the 30 years of his fairly active practice he had always understood that “marriage law had nothing to do with religion as such; that marriage was a contract according to Muhammadan Law, pure and simple.” He also asked “whether there is any text which makes it obligatory on Musalmans that they should get their daughters married before the age of 14,” and added, “there is no text.”

The defenders of child marriage often argue that girl-brides have the right to wriggle out of an unwanted marriage when they attain puberty and before the marriage is consummated. This protection had some meaning when small girl-brides stayed at parental homes for long periods after the marriage rites had been performed. There is no protection for a girl who is handed over to her husband at the age of ten or 12 and her husband does not wait for her to reach puberty before consummating a relationship his victim cannot even comprehend.

Quite often girls from poor families are given in marriage to rich old men and the parents rationalize such marriages by asserting that the girls will enjoy better life than they could ever hope for at parental homes. The argument is quite facetious because a well-fed slave is a slave nonetheless and promise of some comfort is no compensation to a minor girl’s sexual exploitation or the denial to her of possibilities of development into a useful member of society.
An important issue in this debate is the assumption that the girl’s attainment of puberty also means her mental maturity. After all, a woman is not merely a vehicle for sex and procreation. A girl who starts performing the functions of a wife at the age of ten or 12 is denied all possibilities of mental growth. She cannot understand the duties and rights of a wife, to say nothing of her responsibilities as a mother and as a member of society. That is why societies that allow child marriages are denounced for planning under-developed generations.

That the Pakistani society should be called upon to discuss in the 21st century the pros and cons of child marriage offers a measure of the social and intellectual regression that the nation has suffered. Nevertheless, the urgency of addressing the issue is manifest. Even if it is difficult to reconstruct religious thought, to borrow an essential phrase from Iqbal, the possibilities of protecting the rights, including the right to development, of girls married off at a tender age under the rule of puberty must be seriously explored.