ISLAMABAD: Islamabad High Court (IHC) today said that a marriage contract involving a child under the age of 18 years is prohibited by the law and will be declared void ab initio [an agreement’s legality nullified so that it is deemed as if it never existed in the first place].
The IHC remarked this in today’s hearing of a case pertaining to the marriage and abduction of 16-year-old Swera Falak Sher. According to her mother, she was kidnapped last year and during investigation, it was revealed that she was kidnapped and later married to a man, namely Qasim.
At the hearing on March 1, Justice Babar Sattar ordered the Golra police to hand the teenager’s custody to her mother and declared her marriage null.
In his 56-page verdict, the judge ruled that a marriage contract could not be attributed to a child, a person under the age of 18 years. “A child is required to be placed in somebody’s care whether a parent or guardian or other caregiver appointed on behalf of the state.”
He observed that a woman under the age of 18 years “cannot be deemed competent to freely grant her consent to enter into a marriage contract merely because she manifests the physical symptoms of having attained puberty”.
The court remarked that even if a marriage is consensual, it would be illegal if one of the parties is underage because the “competence of a female child is her biological age and not her state of physical and biological growth”.
“Such marriage contract can neither be registered under the Muslim Family Laws Ordinance, 1961, nor can be given effect by a court, as that would tantamount to defeating provisions of law that have been promulgated to uphold rights of children guaranteed by Article 9 of the Constitution read together with the provisions of United Nations Convention on the Rights of the Child.”
Justice Sattar clarified that no one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of section 377A [sexual abuse] of the Pakistan Penal Code.
He added that in such a case, sections 375 [rape] and 377A [sexual abuse] of PPC would be attracted even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/her parent or guardian on his/her behest.
