LAHORE - The Child Marriage Restraint Act 2013, passed by the Sindh Assembly declaring marriage below the age of 18 a cognizable offence punishable by up to three years of jail, fine up to Rs 45,000 and arrest of the parents of bridegroom and groom, is likely to spark a controversy.

The provinces have the power to make legislation on the issue of marriage following abolition of the concurrent list under the 18th Constitutional Amendment. Previously, the federal government was regulating the matters regarding age, dower, maintenance, divorce and other allied things. It had somehow maintained uniformity in the areas where law of the land and constitutional provisions were respected, but the situation in the tribal areas under the control of political agents was different.

Child Marriage Restraint Act, subordinate to the Muslim Family Laws of 1965, ruled the roost in the country, which determined marriageable age of a female and a male at 16 and 18, respectively. But a section, mainly in the tribal area, determines the marriageable age of a girl by the time she attains puberty which varies from region to region, depending on the climate and condition of food stuff etc.

When Ziaul Haq, during the martial law, was overwhelmed by the spirit to ‘Islamise’ the country, the idea of marriage on attaining puberty was strongly backed by a class which believed it as per Islamic shariah. Then the issue was agitated before the Federal Shariat Court which also favoured the view of the clerics. The minimum age of for the marriage of a girl was, later, fixed at 16 to address various complications relating to her social life as well as her health on becoming a mother at a tender age.

In terms of the Constitution, no law repugnant to Islam can be made in the country. And the Council of Islamic Ideology, a supreme body set up to see whether or not legislation is carried out strictly in accordance with Islamic injunctions, has recently again expressed the view over the marriage of a girl on attaining puberty. The chairman of the council propounded this view which came under fire by the NGOs and other civil society organisations.

Over the years the practice of child marriage in various parts of the country has been continuing. In addition, underage girls are being given in vani while the media has been highlighting gross violation of their fundamental rights.

The latest legislation which aims at making things for such elements more difficult and stricter carries a big question as to how this harsher law will be applicable to the cases which remain unabated despite widespread condemnation. Another vital point relates to harmonising this marriage legislation with the law in the other provinces. The question arises what law will prevail if either of the two going to be married belongs to different provinces having different laws.

When contacted, Federal Minister for Information and Broadcasting and Law Senator Pervaiz Rashid said he wanted time to look into the matter before commenting on the issue. Many attempts were made to contact Punjab Law Minister Rana Sanaullah Khan, but he did not receive the call despite the fact that a request to him was also sent through a text message.

When contacted, Parliamentary Secretary for Law Ch Nazar Hussain Gondal told this scribe that the Punjab was still governed by the old law. He, however, added a committee, headed by the law minister, was working on amendments to the family laws and Child Marriage Restraint Law. The committee would invite suggestions from the representatives of the civil society, lawyers and others, he further said. As to the validity of the Sindh law on the touchstone of shariah, he said it was the Federal Shariat Court to comment on it. As to the Punjab, he said, any complexity about the marriage of a person to a resident of another province could be addressed through an ordinance. “The law of that province where the marriage is going to be held should be applicable to such a case,” Gondal opined.

Ulema Council Chairman Allama Hafiz Tahir Ashrafi did not support the Sindh Assembly legislation and termed the move an attempt to gain cheap popularity. He raised the query why the assembly did not legislate against the vederas who married their daughters and sisters to the holy Quran and trees to deprive them of their share in their inheritance. He said some legislators were watching their own interests in the name of women’s rights.

Former judge of the LHC and a human rights activist, Nasira Iqbal, while siding with the Sindh PA law, said it was necessary to remove the gender disparity which was not permissible under the Constitution of Pakistan. She had serious reservations on what Ziaul Haq did to ‘Islamise’ the country and said the situation was exploited by those who twisted the Islamic facts of marriage to their own interests and were still exploiting the things. Justice Nasira Iqbal disclosed PML-N leader Marvi Memon had moved the FSC against the recent recommendation of the Council of Islamic Ideology on the age of marriage, to seek uniform age of 18 for males and females. She hoped the court would take an objective view of the matter in true Islamic perspective.