Age of consent.


Byline: Sulema Jahangir

EARLIER this year, 13-year-old Maria, a Christian by faith, eloped with Ali, aided and abetted by various others. Both the magistrate and the Lahore High Court dismissed Maria's parents' petition to restore her custody to them. They felt that under Islamic rules minors could be married after they reach puberty, and there are several decisions of the superior courts to this effect. Yet, the Child Marriage Restraint Act makes it an offence to marry a girl below the age of 16 and a boy below the age of 18. In Sindh, it is 18 years for both sexes.

The Majority Act 1875 holds that every person domiciled in Pakistan would attain the age of majority at 18 but it excludes marriage, dower, divorce, adoption and religion or religious rites and usages from this provision. In effect, a person below 18 is not be able to vote or enter into a commercial agreement but could enter into a marriage, convert from his or her religion or even divorce.

Pakistan is a party to several international conventions protecting the right of religious minorities to raise their children in their own belief. A legitimate question then is should the Muslim rule of puberty as the age of consent to marriage also apply to non-Muslims? There is growing international consensus that child marriages need to be eradicated but international conventions have been unable to concede a minimum marriageable age and have largely left this for member states to specify.

More importantly, where a child under 16 years is concerned, sex is statutory rape. In 2006, through an amendment the offence of rape was redefined. Marital rape, although not explicitly included in the definition of rape, is now part of the offence of rape. Previously, rape was defined as an offence by a man committed against a woman who was not his wife. The proviso relating to the wife has been removed. Further intercourse with a female below the age of 16 is rape with or without her consent. The law provides an explanation for this: 'This accords both with the need to protect the weak, which the Quran repeatedly emphasises, and the norms of international legal obligations.'

The Child Marriage Restraint Act has been toothless for decades.

It is high time our legislature mustered the courage to outlaw child marriages in absolute terms for both Muslims and non-Muslim citizens - the Child Marriage Restraint Act has been toothless for decades now. If the only consideration for a court is the onset of...

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