Criminalising Self-Arranged Child Marriage Would Expose the Girl to Greater Risks
By
Sara Malkani
January 9,
2021
ENDING the
harmful practice of child marriage has been a priority for human rights
advocates in Pakistan for many years. The global Sustainable Development Goals
that aim to eliminate child marriage by 2030 have also led to increased efforts
to address the issue.
Implementation
of child marriage laws, however, remains fraught for many reasons. Some of the
causes behind poor enforcement are widely recognised, including traditional
norms, low rates of birth and marriage registration, weaknesses in the police
and judicial system. A significant challenge that has not been widely
discussed, however, is posed by early marriages that are not forced by parents but
are in fact initiated by the minors themselves. Such cases, which appear to be
coming before courts in increasing numbers, challenge policy approaches that
emphasise criminal regulation of early marriages.
It is not
difficult to see why adolescents could choose to marry in our social contexts.
Sexual activity outside marriage in Pakistan is not only a social taboo but is
also illegal and subject to criminal penalties. This means that adolescents
have no legal means of engaging in consensual sexual activity. And the only
social and culturally acceptable way for them to explore romantic relationships
is through marriage. This poses a real dilemma for child rights activists – and
one that cannot be easily brushed aside in light of prevailing social realities:
in advocating for the enforcement of laws prohibiting child marriage, we are
effectively proscribing legal and culturally acceptable means for adolescents
to explore romantic relationships.
Due to
emerging trends in South Asian countries, child rights advocates and feminists
have stressed that a distinction should be drawn between forced child marriages
and self-arranged early marriages. While forced child marriages involve a clear
element of coercion, self-arranged early marriages are usually the result of
young persons, especially adolescent girls, exercising their agency to pursue
romantic relationships, often in the face of opposition by family and community
members and sometimes to escape a forced marriage. While there are good reasons
for penalising parents or adult males who coerce a girl under 18 into marriage,
criminalising self-arranged marriages would expose the girl to greater risks,
making her more vulnerable to harm by family or community members.
The denial
of a distinction between forced and self-arranged early marriages is based on
the assumption that persons under the age of 18 lack maturity and are therefore
incapable of consenting to relationships. This assumption is not only
inconsistent with child and adolescent psychology, but also with international
human rights principles that recognise the evolving capacities of children as
they grow older, particularly during their adolescent years.
The
Convention on the Rights of the Child, to which Pakistan is a party, requires
state parties to ensure that laws and policies protect the best interests of
the child while keeping in mind that “children progressively acquire
competencies, understanding and increasing levels of agency”. The Committee on
the Rights of the Child, comprising human rights experts with the authority to
interpret the convention and monitor its compliance, has also emphasised that
minimum legal age limits must recognise the rights of any child “below that
minimum age and able to demonstrate sufficient understanding to be entitled to
give or refuse consent”.
While we do
not have clear data regarding the numbers of self-arranged early marriages in
Pakistan, we do see many instances of courts grappling with the dilemmas posed
in these cases. We see courts validating marriages where girls claim to have
chosen their marriage by appealing to Muslim personal law, which is interpreted
to permit marriages where a boy or girl under the age of 18 has reached
puberty. Counter-intuitively for some, it is Muslim personal law that is used
to uphold the free will of the adolescent girl. It is also invoked, however, in
cases of forced child marriages and is therefore used to legitimise coercion.
It is
undoubtedly difficult to establish whether a marriage is forced or not since
there any many forms of overt as well as subtle coercion. Given their young age
and vulnerability, it is important that girls be counselled and provided a safe
space to express their views before the determination of ‘free will’ is made.
However, these options are unavailable and courts often decide these cases
based on limited information.
In dealing
with cases where the consent of the girl or her age is ambiguous, courts often
place a girl in a shelter or in the custody of her parents. Neither option is a
‘solution’ to the problem: a girl should not be placed in her parents’ custody
when there is a likelihood that she will be harmed there, and a shelter
necessarily means constraints on the girl’s freedom of movement.
Policy
measures cannot turn a blind eye to the agencies and capacities of adolescents.
It is clear that the many complex and diverse contexts in which child marriages
take place pose a challenge to the view that criminalisation is an effective
policy response. Much of the policy discourse around child marriage in Pakistan,
however, revolves around the minimum age of marriage and harshness of criminal
penalties, without adequate focus on crucial services, such as shelters,
financial support for young persons, implementation of empowering education
policies as well as sexual and reproductive health services for adolescents.
The
challenges posed by self-arranged marriages highlight the limited options
available in our society for young people, especially girls, to exercise agency
and imagine lives that are free from harmful social and cultural confines. Our
legal and policy responses, as well as our activism, must be much more nuanced
and imaginative if we wish to allow young people to achieve their potentials.
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Sara
Malkani is a lawyer.
Original
Headline: Child marriage complexities
Source: The Dawn, Pakistan
URL: https://newageislam.com/islam-women-feminism/criminalising-self-arranged-child-marriage/d/124023
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