By Naeem Sahoutara
Published in DAWN on July 10, 2022
On July 4, after a long legal battle, a medical board confirmed what Dua Zehra’s parents have been saying all along: that their daughter is a minor.
“Now, because the medical board has declared Dua’s age near 15, it means that her actual age would be considered to be 14 years, as is shown in Nadra’s [National Database and Registration Authority] birth registration record,” Jibran Nasir, Dua’s father’s lawyer, tells Eos. “The medical evidence has proved Nadra’s document to be true,” he adds.
Many celebrated this development on social media and hoped that the family’s ordeal may finally be near its end. The months leading up to this moment have been a nightmare for the young girl and her parents alike.
“Marriage is a noble act,” she says. “There is nothing wrong with getting married [at the right age].”
“At the time of her wedding, I would have given her duas for a better life and future ahead,” she says, wistfully speaking of a future she imagined for herself and Dua. “Instead, I am spending my nights awake, praying for the safety of my daughter who is a minor.”
She says that Dua turned 14 on April 27. A few days before her birthday, on April 16, the girl went missing from her home in Karachi.
The mother recalls the unfortunate day, speaking about events she has recreated hundreds of times for relatives, friends, the police, judges and media.
“It was sehri time, when I asked [Dua] to put the garbage outside the house so that the garbage collectors would take it away,” Dua’s mother says. “She went out of the house, put the garbage bags in the street and returned home. But then, all of a sudden, she disappeared,” she continues, bursting into tears.
The details of the case have been reported at length by now. The media and concerned citizens have followed the case on social media. In fact, it was a video on social media that brought attention to the case in the first place.
The family approached the police, who lodged a case about the alleged abduction and trafficking of Dua at Karachi’s Al-Falah police station. But swift action followed only after a video of the parents, crying and making an emotional appeal to the authorities for Dua’s recovery, went viral online.
Ten days after she went missing, Dua finally appeared in front of the media with a young man, Zaheer Ahmed, by her side. She announced that she had married Zaheer of her own choice. Denying that she was kidnapped, the girl went on to say that she was 18 years old and her parents were lying about her age.
Later, the Lahore police recovered Dua from Okara along with Zaheer. But, instead of handing Dua over to her parents, the police presented her before the Model Town Judicial Magistrate, who accepted Dua’s version of events and gave her the choice to either go along with her husband or parents. Dua recorded a statement under Section 164 of the Criminal Procedure Code and denied having been kidnapped. She opted to go and reside with her husband.
But was Dua old enough to make that call? And what was the legal status of the marriage? The answers to all these questions came down to one factor: Dua’s age.
While Dua’s parents said that their daughter is a minor, Dua maintained that she is 18 years old and married Zaheer of her own choice. On multiple occasions, Dua even refused to speak with her parents.
Lawyer Nasir also points out that, unfortunately, courts take statements given by girls in child marriage cases at face value, instead of digging deeper to unearth that such testimonies could be the result of inducement or enticement.
Despite Dua’s parents presenting her Nadra-attested birth certificate and their own marriage records, a medical test ordered by the Sindh High Court (SHC) determined that Dua was between 16 and 17 years old. This was finally proven wrong by the reconstituted medical board’s new report this week.
Age-determination tests are not always very accurate — at best they can give a rough estimate of the subject’s age. But in cases such as Dua’s, determining the precise age is key.
Lawyer Nasir says that with the latest report supporting Dua’s parents’ stance regarding her age, this case falls under kidnapping. “The law also states that contracting a marriage [with someone who is] under the age of 16 is a crime, and any physical contact with a child under 16 is classified as a sexual offence,” he adds.
THE CASE OF NIMRA KAZMI
Around the time Dua went missing, the case of Nimra Kazi was also reported.
Nimra too went missing from her Saudabad home in Karachi in April. She also emerged from Punjab, in Dera Ghazi Khan, and said that she had married her husband, Shahrukh, of her own choice.
Nimra’s parents claimed that she is a minor. But Nimra confidently told the authorities that she is 18.
“I have one son, who is 17 years old, and Nimra, who is 14 years and three months old,” says Nimra’s father, Syed Muhammad Nadeem Kazmi.
Nagris Kazmi, mother of Nimra, says that the family is seriously concerned about their daughter’s wellbeing. How can a girl, who did not even know the route of Liaquatabad, travel alone to Dera Ghazi Khan in Punjab, she asks.
In June, a judicial magistrate in Karachi, District East, allowed Nimra to live with her husband of her own free will. A medical report put Nimra’s age between 17 and 18. Eventually, Nimra’s parents also begrudgingly accepted her marriage, although they maintain that their daughter is a minor.
Nimra’s husband Shahrukh’s counsel had previously said that because the marriage was solemnised in Punjab, where the age of marriage was 16 years, the incorporation of sections of the Sindh Child Marriage Restraint Act, 2013, in the charge sheet was unnecessary.
Both cases have brought to light, once again, the differences of law in different provinces. They are also reminders of how much work still needs to be done to better protect children across the country.
Explaining the legal discrepancies, former Sindh Advocate General Salman Talibuddin tells Eos that Sindh and Punjab have different marriage laws. “Under the Sindh Child Marriage Restraint Act, 2013, the minimum age of marriage has been fixed at 18 years,” he says.
Punjab instead has the Punjab Marriage Restraint (Amendment) Act, 2015.
Zahid Sahotra, a Lahore-based lawyer who specialises in family matters, says that under this Act, “any adult who marries a child, defined as a boy under 18 years and a girl under 16 years of age, can be punished with imprisonment of up to six months and a fine of 50,000 rupees.”
“The same punishment will apply to a Nikah Registrar who solemnises or conducts a marriage between two children, or a marriage of an adult with a child,” he adds.
Following the 18th Amendment in 2010, matters of marriage and divorce were devolved to the provinces. Taking the lead, Sindh fixed the minimum age of marriage for both girls and boys at 18 years in 2013. Two years later, Punjab also repealed the Child Marriage Restraint Act, 1929, a colonial-era law, but fixed the legal age for the marriage of a girl at 16 years.
Khyber Pakhtunkhawa and Balochistan are still following the Child Marriage Restraint Act, 1929. Lawmakers in both the provinces have worked on bills proposing to raise the minimum legal age for the marriage of girls to 18 years, but those bills are still in the doldrums.
In 2019, Pakistan’s senate passed the Child Marriage Restraint (Amendment) Bill, 2018, presented by Senator Sherry Rehman of the Pakistan Peoples Party. But the National Assembly has been unable to pass the legislation (more on that later) to enact the law.
The absence of uniform laws against child marriages leaves legal loopholes that have been exploited in several cases.
The question of age becomes critical when it comes to child marriage cases, especially in instances where the parents are claiming their daughters to be underage, while their daughters are refuting the same. In numerous cases, underage brides have testified before the courts saying that they chose to go along and live with their husbands.
In such cases, the courts rely on the medical community to provide clarity.
Police Surgeon Dr Summaiya Tariq at Karachi’s Jinnah Postgraduate Medical explains the medical procedures to determine the age. There are multiple phases in order to determine the age of anyone, she tells Eos.
Firstly, the legal documentary evidence, including the birth certificate issued by the hospital, the child registration certificate issued by the local authorities or Nadra [the National Database and Registration Authority], school registration records and the nikahnama or marriage certificate (if any) are carefully examined.
Secondly, the person’s teeth are examined, because a human adult’s full 32 teeth emerge between the ages of 22 and 25 years.
Thirdly, the person’s body, including sexual organs, are examined. And fourthly, x-ray tests of the person’s wrists, elbows, shoulders, sternum and pelvis are conducted to determine their strength and maturity.
Dr Tariq says a medical board examines these birth registration, academic and medical documents and then reaches a final conclusion.
“A medical board must include a radiologist, a gynaecologist, and dental, civil and police surgeons,” she says. “If all the physical examinations and tests are conducted properly then there can be [a margin of error] of one year between the actual age. So, the average age can be figured out. For example, if the age is estimated to be between 15 or 16 years, it would be considered close to 15.”
Still, there are discrepancies in results, as was witnessed during the Dua Zehra case. And Nadra records alone also appear to not hold much weight in many such cases.
Asad Iqbal Butt, co-chairperson for the Human Rights Commission Pakistan (HRCP), says that, even though legal documents, including the B-form and passport, showed Dua Zehra’s age to be 14 years, “no notice of such documentary evidence was taken by the courts.”
He questions why the courts would order age-determination tests in such cases. “This means you are denying [the authenticity of] your own institutes, such as the national identity and passport-issuing authorities,” he says. “So this is a very complex situation…”
Butt points out that most countries across the world have set the minimum age for marriage at 18, but Pakistan lags behind. He further adds that, in Pakistan, even in places where the minimum age limit is set at 18 years, the laws are not being implemented in letter and spirit.
Pakistan ratified the United Nation’s Convention on the Rights of the Child (CRC) in 1990, pledging commitment to protect the rights of children.
The Convention clearly states that, “For the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”
The agreement outlaws child marriages. But underage marriage is still a big problem in the country. According to the Pakistan Demographic and Health Survey (PDHS) 2017-18, 3.3 percent of the girls are married off under the age of 15, while 18.3 percent of the girls married off are under the age of 18. About 4.7 percent of the boys across the country are also married off under the age of 18, the survey adds.
Zahida Detho, a Mirpukhas-based rights activist, says poverty and the lack of implementation are the driving forces for early marriage. “Even if you report [cases] to the police, they say it is a cultural issue not related to the police,” she says.
Detho, who has largely covered the issue of child marriages in Sindh, says that, beyond Pakistan, the situation at the regional level is no different. “India’s situation is even worse due to abject poverty, and the same [can be observed] in Bangladesh, Nepal, Afghanistan and Iran.”
Still, encouragingly, the United Nations International Children’s Emergency Fund’s (Unicef) data shows that South Asia showed the largest decline in the prevalence of child marriages. Child marriages in the region fell from 49 percent to 30 percent between 2010 and 2020.
The bigger conversation about child marriages moves beyond cases such as Dua’s and Nimra’s. Across the country, the vast majority of child marriages happen with the support and presence of the parents and families.
“Understanding the complex factors that perpetuate child marriage is key to ending it,” observes the United Nations Population Fund (UNFPA) in a brief about their work on the issue of child marriages in Pakistan,. “Girls who live in rural or remote areas, have little to no education, or fall in the lowest wealth quintile, are most at risk. Many parents or guardians will place their daughters in marriage because of their economic hardship or to protect family honour. Social and gender inequality exacerbate the issue.”
Providing legal protection is one aspect. But education and changing mindsets is another tall task required to address this mammoth issue.
In March this year, the Islamabad High Court (IHC) ruled that any marriage under the age of 18 years was unlawful. “…[G]uided by principles of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child and the family), the test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth,” wrote Justice Babar Sattar in a judgment.
The decision also observed that a girl under the age of 18 “cannot be deemed competent to freely grant her consent to enter into a marriage contract…”
The ruling was lauded by many. A Dawn editorial recommended, “While the IHC judgement is only applicable to the ICT [Islamabad Capital Territory], provincial legislators should take a cue from it to amend their own laws.”
But, the Council of Islamic Ideology (CII) took issue with the ruling and sent a letter to the registrar of the court. Talking to Eos, Dr Qibla Ayaz, chairman of the CII, says that declaring the already executed marriage of boys or girls who are under the age of 18 years as illegal would create “serious religious and social problems.”
Dr Ayaz says that the council has written a letter to the IHC’s registrar drawing attention to the delicate issue. “We suggested that you might declare such marriages illegal by imposing punishments or fines,” he says, but declaring these marriages as “forcible rape” has “no place in Pakistani law or Shariah.”
In the letter, he says, the CII also suggested that the issue of underage marriages cannot be resolved through legislation alone. There is a need to launch a massive awareness campaign in the country to highlight such issues, with ulema [religious scholars] highlighting this issue in their sermons.
Getting ulema on board to raise awareness about the issue would be a welcome step. UNFPA also urges governmnets and leaders to, “educate and sensitise communities on the harmful impact child marriage has on girls.” But there needs to be agreement on what the message should be. And, of course, legal protections also need to be in place.
The Child Marriage Restraint (Amendment) Bill, 2018, also faced similar opposition. The amendment defined that a child is a person under 18 years of age and sought to criminalise marriages of anyone under the age of 18.
When the bill faced opposition from members of the Jamiat Ulema-i-Islam (JUI-F) and the Jamaat-i-Islami (JI), Pakistan Peoples Party Senator Sherry Rehman, who had moved the bill with MNA Ramesh Kumar Vankwani, had said, “We are not promoting Western values, but are trying to save innocent lives.” The bill was passed with an overwhelming majority.
Expectedly, the bill faced opposition from clerics in the National Assembly’s Standing Committee on Law and Justice. The proposed legislation was rejected by a majority of 72 to 50 in August 2019.
MAKING MEANINGFUL CHANGES
HRCP’s Ahsan Butt points out that the law is silent on what comes after an underage marriage has been dissolved. Where would the boy go? And where should the girl go?
Butt believes that non-government organisations (NGOs) alone cannot resolve this issue. The country’s political parties must play a constructive and positive role in this regard. “Until the political parties don’t make it a part of their agenda, the problem won’t be resolved,” he says. “They have a better following, compared to the non-government organisations that have limited following.”
“Eliminating child marriage requires everyone to work together to ensure girls have access to education, health information, services and life-skills education,” UNFPA observes.
UNFPA further calls on governments and leaders to improve girls’ access to education and enhance economic opportunities for girls and their families through employment options. But, above all, it asks them to end child marriages by advocating politically for policies that raise the legal age of marriage from 16 to 18 years for both girls and boys, “without exceptions”.
Laws need to protect children across the country and the implementation of these laws must be ensured. Indeed, a lot of work needs to be put in to make sure that no family faces ordeals similar to the ones detailed in this story.