- Reforms are needed to stop the scourge of child marriage
By Ramsha Shahid
On 21 August 2019; the Senate Standing Committee on Law and Justice rejected a bill amending the Child Marriage Restraint Act 1929 labelling the determination of marriageable age for girls un-Islamic. The relevant provision currently defines a female child as “a person under the age of 16”. Post the Eighteenth Amendment, regulation of marriage and development of women are provincial subjects and the federal rejection of this bill may be regressive at least, since Sindh has already passed this amendment and is therefore in compliance with expected national and international obligations of protection of women. However, a bill in Punjab is yet to be tabled.
The prevalent scourge of child marriage relates to archaic tradition, customary practice and socio-economic pressures. Though the root causes were identified several years ago, the needed changes, in the worst hit countries, have been incremental at best and apathetic at worst.
Over here, the continued practice of child marriage is linked to both desperate poverty and misogyny. Early marriages are also connected with the cycle of poverty and health complications and rob the child of another fundamental right: education.
The grundnorm of our domestic law is The Holy Qur’an, which is silent on the issue of marriageable age, albeit for one verse which states: “And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement (rushd), release their property to them. …” (Nisa: 6)
The simple translation of the Arabic word ‘nikah’ is sexual intercourse, hence some translators interpret it as one ‘reaching sexual maturity’ and the Arabic word rushd means and includes; be well guided or directed, true direction, correct rule of action, straightforwardness, maturity of a child or intellect and the capacity to manage one’s affairs. Hence, according to this verse, there seems to be an affinity between being of marriageable age and the age of mature intellect. Extrapolating from this, Muhammad Iqbal Siddiqi, the author of The Family Laws of Islam (2004), claims a constitutive element of a mature intellect is the ability to understand that one has choices, and the ability to choose the option in one’s best interest. Hence, the age of majority, a term Siddiqi equates with marriageable age and the age of mature reason, only occurs after puberty. There is a continuous lack of sectorial religious consensus on the age of puberty due to which the concept of rushd is not given enough attention.
Uzoamaka Okoye[1] notes that many Muslim feminists “have argued that the Qur’an advances the rights of women and that Prophet Muhammad surrounded himself with independent, self-sufficient women. The Muslim feminists argue that fatwas of the jurists are in many ways diametrically opposed to Islamic teachings, the Qur’an and the Sahih Hadith of the Prophet Muhammad.” Okoye avers that one obstacle to understanding that women have guaranteed rights under Shari’ah, is the failure to differentiate Islamic laws from Islamic culture.
Punjab being the most populous province will have more victims of child marriage. Keeping the Child Marriage Restraint Act 1929 as it is, is unlikely to bring an end to this medieval practice, so an amendment targeted at increasing the minimum marriageable age is needed
Islamic texts set very strong standards of protection of women and girls, and the evidence of the harm caused by early marriage contravenes the Islamic obligation to protect human life and health. Marriage in Islam is contractual in nature and that, among other purposes, should help protect the five objectives of Islamic law (Maqasid al-Shari’ah): faith, life, intellect, progeny and wealth. This means all human beings should have the opportunity to develop their physical, mental, spiritual, intellectual and other human capacities, and be protected from all forms of physical, economic, psychological and sexual violence.
Technically speaking, an individual is considered an adult at 18, which allows one to enter into legal relations; this view is gender neutral and also supported in The Majority Act 1875. Syed Amir Ali in Muhammadan Law, while dealing with the capacity to contract a valid marriage, enumerates the following conditions; “(1) in the first place the parties must be able to understand the nature of their act, if either of them is non-compos mentis or is incapable of understanding the nature of the contract in its void. (2) in the second place, they must be adults (in cases where the marriage is not contracted for them by their guardians), (3) in the third place they must be acting of their free will and not under compulsion” A marriage contracted by a minor who has not arrived at the age of discretion or who does not possess understanding or who cannot comprehend consequences of the act is a mere nullity. The same conditions apply to a girl as to a boy.
Interestingly, this implies that one could reach marriageable age or sexual maturity but still not have sound judgement, which is universally true and gives a possible reason why a specific age for marriage is not stated in The Quran. Based on this, it can be deduced that these two conditions can also be used as a guideline for marriage. The reason being, if we suppose after having reached marriageable age / sexual maturity an orphan is allowed to get married but their wealth is not given to them, this means they have been determined not to have sound judgement, yet they are being allowed to get married, which is logically inconsistent.
As law is a social tool, it must evolve to be relevant and applicable to address the issues of the present. Yet it is very unfortunate that even today we are trapped in the debate within the opposing views of different Islamic schools of thought on the age of puberty and place no significance on rushd.
In essence this single proposed amendment in the Child Marriage Restraint Act 1929, will in effect, harmonise all applicable laws concerned with the age of a female child such as the Majority Act 1987, The Punjab Commission on the Status Of Women Act 2014 and the Sindh Child Marriage Restraint Act 2015.
Studies by Isobel Coleman[2] suggest that reform may be easier if feminists adopt an Islamic rather than a secular viewpoint, “In many Islamic countries, reformers have largely abandoned attempts to replace sharia with secular law, a route that has proved mostly futile. Instead, they are trying to promote women’s rights within an Islamic framework. This approach seems more likely to succeed, since it fights theology with theology.” Intuitively this makes sense; sometimes one must use the tools of the oppressor to no longer be oppressed and by dwelling on the various viewpoints of different sects we miss the crux, which is regulation of the minimum age for marriage for girls consistently with accepted social standards.
How is an individual to exercise her fundamental rights, if her ability to do so is taken away from her? Keeping an individual in a state of ignorance, fear or confinement, which the culture of early female marriage and its ancillary evils promote, are the primary methods by which the vulnerable child bride is made more pliable and submissive. As long as she lacks the will and/knowledge to pursue her rights, she will never utilise them. An ignorant, submissive child bride will never question the world beyond the “char diwari” (four walls) of her abode. She will never ask what was written in her nikahnama, never ask for her haq mehr, never voice her opinion, and is unlikely to further her education or seek meaningful employment. When her own daughter is to be married off she will instruct her to never question.
It is a vicious cycle which has no place in a modern society. The legal marriageable age for girls in other Muslim countries such as Turkey, Egypt, Bangladesh and UAE has been enhanced to 18. The outright rejection of the bill was wrong, and not only rejected local and international precedents; but fails to address the existing anomalies in the Act’s defining a ‘female child’ and ‘minors’.
Punjab being the most populous province will have more victims of child marriage. Keeping the Child Marriage Restraint Act 1929 as it is, is unlikely to bring an end to this medieval practice, so an amendment targeted at increasing the minimum marriageable age is needed.
[1] Okoye, Uzoamaka N. “Women’s Rights Under Shari’a: A Flawed Application of the Doctrine of ‘Separate but Equal.” In Women’s Rights Law Reporter, Vol. 103 (Spring 2006). New Jersey: Rutgers University Press, 2006.
[2] Coleman, Isobel. “Women, Islam, and the New Iraq”. In Foreign Affairs, January/February (2006).