The age of consent

In April 2014, the Sindh Assembly passed a law which made marriage to a female under the age of 18 punishable by up to three years months in prison. Previously, the bar had been set at 16 by the Child Marriages Restraint Act, 1929.

The new law was greeted with much fanfare by Pakistan’s fast-dwindling band of       jiyalas. And why not? Here was a law which was purportedly modern, feminist and progressive – all in one go. ZAB would have been proud of the law and so would BB. The law even followed in the hallowed steps of the Quaid. In September 1929, he had responded to criticism of his support for the 1929 Act by saying “If my constituency is so backward as to disapprove of a measure like this then I say the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you.”

Soon after the passage of the Sindh Act, I was asked by the Karachi-based parents of a runaway girl to help recover their daughter. According to them, she was 15 and was now living in Lahore with somebody she had supposedly married. And indeed, that was the position taken in response to the habeas petition filed by me.

The first thing I learned after filing that petition was that the Child Marriages Restraint Act, 1929 (not to mention the Sindh version of 2014) is a sham. It does not make child marriages illegal. Instead, Shariah law prescribes that every post-puberty female is competent to marry. Since the personal law of the Muslims of Pakistan is the Shariah (as per the Shariah Act of 1939), the net result is that the marriage of even a ten-year-old girl is valid (so long as she has hit puberty) but her husband is liable to go to jail.

In the first round of litigation, I got nowhere. The judge in question told me bluntly that since an apparently valid    nikah   had been presented and since the girl was admittedly of age as per Islamic law, I had no case. When I persisted with the argument that the girl was from Sindh and that the Sindh Assembly had recently raised the age of consent to 18, he responded by saying, “Mein aap kay qanoon ko manoon ya apni shariat ko?”

On appeal, the bench was more sympathetic. Thanks to assistance and guidance from my learned friend Shan Gul, then (as now) the dishevelled life of the advocate general’s office, we managed to get the bench to order that the girl be produced in court.

On the next date, her parents and I went to court with high expectations. Then the young lady appeared. She was dressed very proudly in her finest clothes, looked as if she was 21 years old, and visibly pregnant. She confidently told the court that she had married of her own consent, that she was happy and that she wanted to be with her husband. Case dismissed again.

This time at least I had no complaints. Given that the young lady was pregnant and clearly exercising her own will, no point would have been served by throwing her husband in jail.

But what about instances where the marriage isn’t quite so ostensibly happy. Does a 15-year-old runaway pregnant girl really have any option except to tell all and sundry that she has found true love? Don’t we have an age of consent limitation on marriage precisely because the sentiments of 15-year-olds are not to be trusted?

That brings me to my next point. It is wrong, repeat wrong, to say that the age of consent in Pakistan is 18 or 16 or whatever. The age of consent for females in Pakistan is puberty (defined as the onset of menstruation). As already noted, the men who marry underage girls are liable to be punished. But the marriages those girls contract are valid. This is true not only of Sindh but of all the other provinces as well (including Punjab, where the penalties for underage marriage were increased in 2015).

In earlier times, the puberty standard set by Shariah was not quite so problematic because the average age of puberty for females fell somewhere around 16 to 18 years. As per one study, the average age of puberty for American girls in 1860 was 16.6 years. Presumably, the average age of puberty for non-Americans in earlier ages was much the same.

The problem now is that due to modern advances in diet and health, the average age of puberty is continuously falling all across the world. Today, the average age of puberty for white girls in the United States is 10 years. For black girls, the average age of puberty is 9 years.

The phrase to note here is ‘average age’. That means significant numbers of young girls are hitting puberty at ages less than the ‘average age’. In other words, an eight-year-old girl who has hit puberty is not a medical freak; she is just slightly ahead of the curve.

In legal terms, Pakistan has two choices. The first is to let the status quo stay as it is and hope that not too many underage girls get destroyed. But as per Unicef, 3 percent of all girls are married by the age of 15 and 21 percent by the age of 18. That’s a lot of destroyed lives to ignore.

The second option is to actually outlaw child marriages. Like Pakistan, India inherited the Child Marriage Restraint Act of 1929. But unlike Pakistan, India has taken the next step. In 2006, India introduced the Prohibition of Child Marriage Act which declares all marriages to underage girls to be invalid. It doesn’t matter now if the girl consents, if her parents’ consent or if she’s pregnant. All marriages in which the girl is under the age of 16 are invalid.

Can Pakistan adopt the same route taken by India? Well, the Council of Islamic Ideology doesn’t think so. In November 2014, the CII gave a series of rulings declaring that any attempt to limit child marriage to an age other than puberty would be invalid and unIslamic. The rulings were met with great derision on social media but nonetheless prompted the PML-N to withdraw a bill in the National Assembly which would have increased the age of marriage to 18 (rather than 16).

But the question remains: if Shariah law is unambiguously to the effect that the age of consent is puberty, then any law which fixes a different age is self-evidently unIslamic. Equally self-evidently, we have laws in Pakistan which penalise underage marriages (but which, as noted above, don’t actually invalidate the marriage itself). What then is the state to do?

The liberal answer to the question is to ignore the CII and to proceed full steam ahead. In an ideal world, that is certainly what I would support. But we don’t live in an ideal world, certainly not from a liberal perspective. What we live in is a world with many different perspectives, all of which demand respect. What we also live in is a world with many competing political considerations. I hope I live to see the day when child marriages are effectively prohibited. But I don’t think it’s going to be     tomorrow.

 

The writer is an advocate of the Supreme Court of Pakistan.

Twitter: @laalshah