Is the nikkah of underage spouses valid?

Under the Child Marriage Restraint Act 2013, marriage of children still remains legal

KARACHI: Even though the Child Marriage Restraint Act 2013 has determined the Lawful marriageable age at 18 and treats the violation as a severe criminal offence, the law remains silent about the validity of the nikah of the underage spouses.

Such a marriage can only be dissolved through proper divorce and khula proceedings as under normal circumstances. These issues were discussed at a seminar on the Sindh Child Marriage Act 2013 at Mehran Hotel on Wednesday. Members of civil society, representatives of non-governmental organisations and activists shared their concerns over the lack of implementation of the law and chalked out areas in which the law needs improvement.



Advocate Maliha Lari talked about how the Sindh Marriage Restraint Act 2013 is a step ahead of the Child Marriage Act of 1929 as the recent law has set the minimum age of marriage for both boys and girls at 18. She highlighted the contradictory nature of the law, where on one hand a sexual intercourse with a child below the age of 18 is considered rape while, on the other, the marriage remains legal even when this crime is addressed. Lari said that this issue must be addressed. “The marriage is still considered lawful where divorce and khula have to be obtained under normal proceedings,” she said.

Read: Marital matters: Underage marriage [Nikkah] not un-Islamic: CII

Meanwhile, SSP Faizullah Korejo explained the technicalities that make this law not only comprehensive but also severe in its form. “The court comes under immense pressure but the law itself is very strong,” he said. According to him, the law not only makes the crime a non-bailable offence, but also non-compoundable, meaning that the issue cannot be compromised and solved within concerned parties.

Korejo added that in the case of child marriages, section 365 (b) for kidnapping a girl is also applied. “Issues like these used to be brought to family courts but this law is dealt with by the judicial magistrate of every locality,” he said, adding that the law allows the court to review its own proceedings, offering the perpetrators no means to escape. Talking about the determination of age, Korejo said that anyone can do that with the help of registration number at the time of birth, the B-Form and CNICs.

Health and Nutrition Development Society information general manager Bilquis Rehman said that half of Pakistani women are married by the age of 19, in which the majority is married early in the name of tradition.

She narrated the case of a girl who was married at 14 years of age and had become a mother of two children by the age of 16. “By the time she turned 18, she was divorced because of problems in her marriage,” she said. “When traditions are cited as reasons for early marriages, where do these traditions disappear when it comes to accommodating these young girl when all of it doesn’t turn out well?”

Published in The Express Tribune, August 13^th, 2015.