Lahore High Court Strikes Down the Discriminatory Gender-Based Age Difference in the Definition of ‘Child’ in the Child Marriage Restraint Act 1929

by | May 14, 2024

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About Rida Tahir

Rida Tahir is a UK qualified Barrister-at-law and an Advocate of the High Courts of Pakistan. She is a lecturer for the University of London and University of Hertfordshire law programmes in Pakistan.  Rida specialises in human rights litigation with particular focus on the rights of women and children.  Recently, she was invited by the UN Women to a consultative meeting, which was presented to the office of the Honorable Prime Minister of Pakistan and resulted in the National Gender Policy Framework.

About 18.3% of girls and 4.7% of boys in Pakistan are married before the age of 18. Child marriage is a human rights violation which affects both genders. However, it affects girls disproportionately. In fact, 54% of girls in Pakistan get pregnant before their 18th birthday. Child brides face greater pregnancy-related health risks and their babies are more likely to have health problems. Further, the prevalence of maternal and infant mortality in the country is significantly associated with early marriage practices. Moreover, child brides face 3% more incidence of physical assaults as compared to women who marry after the age of 18 years. It is within this context that, on 09 April 2024, the Lahore High Court (LHC) held in Azka Wahid v Province of Punjab & others that the definition of ‘child’ stated in Section 2(a) of the Child Marriage Restraint Act 1929 (1929 Act) is discriminatory and unconstitutional. On these grounds, the LHC struck down Section 2(a) of the 1929 Act.

The Child Marriage Restraint Act 1929 (1929 Act) is applicable in Punjab (as amended by the Punjab Child Marriage Restraint (Amendment) Act 2015, which increased the penalties for the offenders but the difference in ages in the definition of ‘child’ was left unchanged), Balochistan, Khyber Pakhtunkhwa and Islamabad Capital Territory. The 1929 Act discriminates on the basis of gender, prohibiting the marriage of boys under the age of 18, but girls under the age of 16. Sindh is the only province in Pakistan which sets the uniform minimum age of marriage at 18 for both girls and boys.

Section 2(a) of the 1929 Act provided that: “child” ‘means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age’. The term “child marriage” has been defined in Section 2(b) as ‘a marriage to which either of the contracting parties is a child’.

During the course of proceedings, the data provided by the Advocate General to the LHC revealed that pregnancy and childbirth related complications are the main causes of death for mothers aged 15 to 19 in Pakistan. Therefore, in arriving at its judgment, the LHC referred to Article 35 of the Constitution of Pakistan (Constitution), which states that: ‘the State shall protect the marriage, the family, the mother and the child’. In accordance with this constitutional provision, the court stated that: ‘it is essential for the protection of family (with the mother and the child as its more important elements) to protect a female from being subjected to child marriage’ [8].

Moreover, the LHC referred to Article 25 of the Constitution which states that:

‘(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.’

The LHC was of the opinion that the definition of ‘child’ as provided in Section 2(a) of the 1929 Act was discriminatory as it provides greater protection to males by keeping their age of marriage higher than females. The LHC directed the government of Punjab to issue a revised version of 1929 Act based on its judgement. The court stated that:

‘I have no doubt in my mind that the definition of child, in its present form, in 1929 Act is discriminatory. In sum, the words in section 2(a) viz. “if a male ….and if a female is under sixteen years of age” being unconstitutional are held to be without lawful authority and of no legal effect. They are struck down.’ [10 -11]

This progressive judgment by the LHC is being celebrated across Pakistan. However, it remains applicable only to the Province of Punjab. The judgment only has persuasive value across other provinces and cannot serve as binding precedent. The federal and provincial governments should collaborate effectively and formulate tailored strategies to eradicate child marriage by setting the minimum age of both genders at 18 years of age. Furthermore, in Sindh Province, the Sindh Human Rights Commission, a sub-national human rights institution, is focusing on continuous gender sensitization and capacity-building training of the judiciary and law enforcement while also providing free legal aid to the victims of child marriages. Other provinces in Pakistan should adopt similar strategies to increase access to justice for victims of child marriages. 

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