By Sahar Zareen Bandial
In Pakistan, each year almost 1,000 girls belonging to minority communities are forcibly converted and married to Muslim men according to the Aurat Foundation.
Many of them are often minors. The story of the 13-year old Christian girl named Arzoo Raja, who was allegedly abducted, converted and married to a 44-year old man in Karachi is, sadly, not new.
Quite expectedly, the case has now turned on a determination of Arzoo’s age. Although NADRA documents record her age at 13 years, in an affidavit submitted before the court Arzoo has alleged that she is in fact 18 years old. The Sindh High Court has accordingly ordered an ossification test to determine Arzoo’s age. Her abductor/husband remains in police custody. Arzoo is now in a shelter home.
As the Arzoo case unfolds, a familiar pattern of religious persecution comes to the fore: abduction and (forcible) conversion of a minor girl, which is accorded a degree of permanence and irreversibility through marriage to a “believer.”
Our law makes lofty promises of religious freedom. Article 20 of the Constitution guarantees every citizen the right to profess, practice and propagate his religion. Our superior courts have on occasion stressed upon the State’s obligation to protect minorities while vociferously (and correctly) defending Islam as a religion that does not compel people of other faiths to convert.
Yet the impunity accorded by the State in cases of faith-based violence, the discrimination inherent in the State’s penal laws, and embedded social prejudices against religious minorities, are all well-known and documented. The forcible conversion of underage Hindu and Christian girls and their subsequent marriage to Muslim men has also continued unabated for years.
An effort by the Sindh Assembly in Nov. 2016 to stipulate the minimum age for religious conversion at 18 years, while prescribing a penalty of life imprisonment to those involved in forcible conversions, bore no fruit.
Although the Sindh Assembly unanimously passed the Sindh Criminal Law (Protection of Minorities) Bill, the provincial government thereafter retracted its support of the law. However, in a recent judgment, the Lahore High Court has held that a minor, who is not yet sui juris i.e. has not attained the age of maturity, lacks the legal capacity to change his/her religion on his/her own (PLD 2020 Lah 489).
The ruling is particularly significant in light of the jurisprudence that has evolved in our legal system on the question of underage Muslim marriages. Under the legal regime of the Child Marriage Restraint Act, 1929, the prescribed minimum age for marriage of girls and boys in Pakistan is sixteen and eighteen years, respectively.
The Sindh Child Marriages Restraint Act, 2014 sets a higher minimum age for the marriage of girls – at 18 years – and prescribes stricter penal consequences for those who solemnize or facilitate an underage marriage, and for an adult male who marries a minor girl.
Despite such law, Pakistan figures high in the incidence of child-marriage in the world.
According to UNICEF, 21 percent girls in Pakistan are married before they attain the age of 18 years. The problem lies here: the fact that the party to a marriage is below the minimum age prescribed in the law does not lead to an automatic declaration of invalidity of the marriage contract, unless there is a clear admission of coercion.
Our courts have time and again held that a marriage with an underage Muslim girl cannot be termed invalid, where she has attained puberty and has accorded her consent, even though the marriage would prima facie be an offence under Child Marriage Restraint laws.
Under Islamic law a Muslim girl who has attained puberty, and therefore physical maturity, may be married.
There then exists a disconnect between the statutory prescription of the minimum age for the marriage of girls, and the Shariah-based judicial interpretation regarding a Muslim girls’ capacity to consent to marriage upon reaching puberty.
This disconnect takes on a particular complexity in a case like Arzoo Raja’s. If the Sindh High Court refuses to follow the precedent set by the Lahore High Court and holds Arzoo’s “conversion” to Islam as lawful, the question of validity of her (ostensibly forced) marriage would turn on whether she has attained puberty and provided consent to the union.
In an affidavit presented before the court, Arzoo has asserted that she freely consented to her marriage. Yet it is often difficult to determine whether such declarations of consent are in fact un-coerced, or if they are the consequence of threats, psychological abuse and conditioning, and fear of social stigma and rebuke.
Even otherwise, it is questionable whether a 13-year old girl possesses the intellectual, emotional or social maturity to comprehend and take full responsibility for her decision to marry.
It is hoped the Sindh High Court will keep such questions in mind when passing judgment in Arzoo Raja’s case.
(Sahar Zareen Bandial is an Advocate of the High Courts and a member of the Adjunct Faculty at the Shaikh Ahmad Hassan School of Law, LUMs. She has a keen interest in gender issues and has worked extensively in the area of legislative drafting.)