Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.
15567 of 2019) Sara Raza
Child Marriages: A Commentary on the Recent Judgment by Justice Anwar
ul Haq Pannun
By: Sara Raza
Introduction
Child marriage, which is considered as violence against children by the United Nations Children’s
Fund (UNICEF), has a disproportionately high rate in South Asia, with an overwhelming majority
of children being girls.1 Pakistan has the sixth highest number of child marriages in the world,
where 21% of the girls are reported to have gotten married before 18 years of age and 3% before
they turned 15, with the former globally known as the age of transition from adolescence to
adulthood.2 Child Marriage in Pakistan, which was earlier a federal subject within the ambit of the
federal legislature, was devolved to the provinces and became a provincial subject by virtue of the
18th Amendment, as a result of which each province in Pakistan was giving the power and mandate
to legislate over the issue and matter of child marriages. In Pakistan, unlike in India, Nepal and
Bangladesh, child marriage is still legal if a girl is above the age of 16,3 with the exception of
Sindh, which has incorporated the universally recognized age of the child within the Sindh Child
Marriage Restraint Act 2013, where a child has been defined as any person below 18 years of age.
In the wake of patriarchal notions of marriage, a recent landmark judgment rendered by the Multan
Bench of the Lahore High Court recommended stringent measures to be observed in ensuring that
no child marriages are given legal effect by the Nikkah Registrars and the local authorities
responsible for registering marriages. The case Tahira Bibi v SHO and others,4 decided in October
2019 and authored by Justice Anwaar ul Haq Pannun, sheds light on some of the most significant
*Sara Raza is a lawyer based in Karachi. She holds a BA-LL.B (Honours) from the Lahore University of
Management Sciences. She is a strong advocate of women empowerment and gender equality. She is interested in
gender justice and women’s rights and is a member of Women in Law Initiative Pakistan. She also serves as the
Research Assistant at the Lahore Education Research Network (LEARN).
1
https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage
2
https://www.girlsnotbrides.org/child-
marriage/pakistan/#:~:text=21%25%20of%20girls%20in%20Pakistan,brides%20in%20the%20world%20%E2%80
%93%201%2C909%2C000.
3
See, for e.g., CEDAW Committee, General Recommendation No. 24: article 12 of the convention (women and
health), (20th Sess., 1999), in Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, at 359, para. 28, U.N. Doc. HRI/GEN/1/ Rev.9 (Vol. II) (2008); ECSR Committee,
General Comment No. 14: The right to the highest attainable standard of health (Art. 12), (22nd Sess., 2000) in
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 84,
para. 21, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).
4
Writ Petition No.15567 of 2019.
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
traits of child marriage and explores the gruesome consequences of marrying young girls to men
from varying age brackets, which is something customarily practiced in Pakistan.
This commentary aims to analyze firstly, the decision by Justice Pannun in the Tahira Bibi case as
he highlights the issue of the age and identity of girls at the time of registering and solemnizing
the marriage and explores the socio-economic context in which a child marriage may take place.
Apart from the reasons why such matrimonial bonds exist and are given effect, the commentary
also discusses the consequences that unleash with forced matrimony and the severity of harm that
a child bride may have to bear the burden of. Hence, as a result of legal analysis from both domestic
and international spheres, the recommendations propose not only prevention against child
marriages, but also the same to be declared invalid, illegal and to be dissolved at the very outset.
Facts of the Case
A brief factual background of the case allows us to understand the context in which the need to
discuss the issue of child marriages was presented before the Court. The petitioner who had
attained majority and was sui juris had entered into a matrimonial bond with Muhammad Bashir
out of her own free-will and against the wishes and without the blessings of her parents. After the
marriage was solemnized, respondents No. 1 to 3, including the SHO, on behalf of the private
respondents started harassing and intimidating the petitioner, forcing her to divorce her husband.
Amidst these threatening circumstances, the respondents illegally conducted a raid at the
petitioner’s house, which led to people from the locality being gathered to the spot to rescue her
from the illegal harassment that the respondents subjected her to. In the wake of the
aforementioned facts, the Lahore High Court’s jurisdiction was invoked where the petitioner
claimed being aggrieved of the behavior and conduct of the official respondents and prayed for an
end to having herself and her family harassed at the hands of those trying to meddle and interfere
with her matrimonial life.
Issues before the Learned Judge and Analysis of the Applicable Law
Justice Pannun, in his judgment, has carefully scrutinized the nature of similar cases, where one of
the parties to a lis may have contentions over the allegedly illegal marriage, while the other may
try to prove the validity of the marriage and pray for the undue influence and harassment at the
hands of family members and relatives to be put to an end.
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
Before delving into the analysis of the case and the discussion of the issues at hand, it is pertinent
to note that the Child Marriage Restraint Act, 1929 (“1929 Act”) - the act in question - extending
to the whole of Punjab, and applicable to all the citizens of Pakistan, prescribes punishment for
three main parties: (i) a person (not a minor) marrying a child;5 (ii) a person solemnizing a child
marriage i.e. performing, conducting or directing any child marriage;6 and (iii) a parent or guardian
concerned in a child marriage.7 However, nowhere in the Act does the law refer to a child marriage
being invalid and illegal for the purposes of registration and solemnization. The law focuses on
holding those involved in child marriages accountable for their acts by only putting forth deterrents
such as fines and imprisonment periods, rather than nullifying the marriage in and of itself. And
hence, the lack of implementation and violation of the provisions of the Child Marriage Restraint
Act, 1929, kicks in at a time when one of the most significant problems of registering the marriage
arises.
Age and Identity of Girls
The practice of Nikkah Khwans and Registrars registering marriages without requiring any proof
of the age of the parties, especially girls, is highly problematic and leads to many minors falling
prey to family pressure and external influences that govern their forced matrimony. Authentic
identification and documentation such as the National Identity Card issued by NADRA, B-Form,
School leaving certificate, a medical certificate by a competent authority, or a Birth Certificate
issued by the Union Council are examples of the identity documents that authorities can rely on at
the time of registering marriages to avoid aiding in the commission of a crime that is child
marriage. However, the authorization that licenses the Nikkah Registrars to solemnize marriages,
gives them immense power to change the shape and form that a marriage may take by playing tic-
ta-toe on the piece of paper called Nikkah Nama that goes on to govern the rights and obligations
of the husband and wife. The authority assumes within it the power to cross out one of the most
substantive rights provided to the wife in Islam to protect herself from an ill-timed and thoughtless
talaq pronounced by the husband in a sudden outburst of anger – the right of talaq al-tafwid. Talaq
al-tafwid, also known as delegated divorce, as a right, is articulated in column 18 of the Nikkah
Nama, where the husband delegates to the wife the right to divorce him unilaterally. Hence, in
5
The Child Marriage Restraint Act, 1929, s. 4.
6
Ibid, s. 5.
7
Ibid, s. 6.
Lahore Education and Research Network 3
Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
child marriages more than any other, the crossing out of clauses and columns amounts to denial of
rights that have been otherwise promised to wives under Muslim Personal Law and govern the
marriage by allowing them to benefit from the protections laid down to empower them. Even in
the Tahira Bibi case, a notice of criminal negligence was issued to the Director, Local Government,
Multan vide order dated 15th October 2019, wherein it was noticed that he had left some columns
blank and had not filled in others as accurately as the response from the bride and the bridegroom
required. Therefore, in the absence of a regulatory framework and Standard Operating Procedures
(S.O.Ps) that should be put in place to ensure compliance with the provisions of the 1929 Act and
the Muslim Family Law Ordinance, 1961 (MFLO), child marriages warrant an abhorrently unfair
number of violations of the law.
The illegality pertaining to child marriages is evident from the incompetence of the child to enter
into the contract of marriage. In Islam, the concept of a girl becoming competent is dependent
upon the attainment of puberty. However, the age at which a girl is considered to have entered
adulthood varies with differing resources, where the High Court relied upon Fatawa Alamgiri
which indicates that the lowest age of puberty according to its natural signs for girls, is 9, whereas
for boys, it is 12. However, in the instance that signs do not appear naturally, both males and
females are considered an adult on the completion of 15 years of age. This concept of considering
a specific gender as an adult without certainty of attaining puberty is intrinsically complicated to
understand because some children reach puberty at later stages in their teenage. Similarly, the
categorization as an adult at the age of 15 can even be construed to mean that a child can be deemed
an adult by a parent or guardian and hence, be forced to set foot into a matrimonial bond, which
clearly does not comply with the provisions of law against child marriage. On the flip side, it is
also viewed as allowing a girl to enter into a marriage before the attainment of puberty, but at her
own discretion and with sufficient understanding and by seeking the consent of a guardian.
Historically, parents, guardians and other family members have used this side of the argument to
justify getting their young daughters married to men of significantly older ages. Girls have been
disproportionately impacted by the age difference intertwined in child marriages due to the ‘option
of puberty’ also known as Khyar-ul-bulugh, which has been remarkably explained by Justice
Pannun. He has also quoted Mohammaden Law in the following words:
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
“When a marriage is contracted for a minor by any guardian other than the father or
father’s father, the minor has the option to repudiate the marriage on attaining the
puberty.”8
While Islam allows the girl to repudiate marriage on attainment of majority and understanding the
marriage, this right ceases to exist for the girl if she fails to repudiate the marriage without
reasonable delay. In addition to this, even though the Dissolution of Muslim Marriages Act, 1939,
does give the right to repudiate marriage before the girl turns 18, the pre-condition for a girl to opt
for such repudiation is that the marriage should not have been consummated. However, the same
right continues for the male till such time that he expressly or impliedly ratifies the marriage by
payment of dower or cohabitation. The controversy that surrounds the option of puberty is attached
to the stigma that a girl’s right to repudiate marriage is linked to the sexual status within the
marriage, however, the same is not true for a man whose right is neither affected nor has any
linkage or connection with the consummation of marriage.
Socio-Economic Concerns
Moreover, to prevent child marriages from taking place, it is pertinent to understand the reasons
why such marriages are entered into and what consequences they prevail, which need particular
redressal. The socio-economic background at play is what assists the initiation of many early age
matrimonial bonds. In rural and poverty-stricken areas, where people, especially girls do not have
access to decision making processes and much of a say in household matters, let alone access to
education, girls are more likely to get married at early ages. In addition to financial depravity, the
essence of patriarchal practices and misogynistic attitudes hardly leave daughters and sisters with
a choice to marry of their own will or at an age of their choice. Therefore, with haste in marriage
and little to no understanding or compatibility between partners, girls at young ages end up being
subjected to harsh consequences such as pregnancy-related issues and other medical and health-
related complications that are furthered by domestic violence and abuse at the hands of their
husbands. Early marriages are also a severe consequence of lesser economic opportunities and
lower social mobility, with girls not having enough power to express refusal to marry a man at a
young age let alone the one of their choice. The influence that the more powerful sex (male)
exercises over disempowered, suppressed and oppressed females is what relegates women to
8
Mohammedan Law, para 274. Also, see para 6 of the judgment.
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
dependence on men and simultaneously, a denial of opportunity to better life for themselves. And
hence, in many households this ‘circle of life’ passes on from one generation of girls to the next,
with mothers not having enough say to decide differently for their daughters, and consequently
helplessly watching them go through the same. It is also proven to be correct that the wider the
length of the reproductive span of a girl, the greater the reproductive burden. As a result, maternal
health complications lead to higher mortality rates, miscarriages, postpartum hemorrhage, and
even other sexually transmitted diseases, especially when their husbands, on the other hand, are
involved in polygamous relations.
Jurisprudential analysis, Legislative Developments and Global Trends
The judgment by Justice Pannun also went a step further in determining the impact of lack of
education on females by discussing the importance of the constitutional provisions encircling the
right to life9 vis-à-vis child marriages. The Court relied upon Bushra Jabeen and 367 others v
Province of Sindh through Chief Secretary and others10 wherein it was held that the right to life
includes the right to education as stated under Article 25-A of the Constitution of the Islamic
Republic of Pakistan, 1973. Therefore, it becomes the primary responsibility of the State to provide
free and compulsory education to all children of five to sixteen years of age, which will
subsequently create awareness about the law, children’s rights, and empower them through
channels that promise deterrence for violation of the law. The judgment also linked the rate of
literacy of a nation to its population growth and the sustainable use of resources available. In a
human rights case, 2019 SCMR 247,11 the Supreme Court observed as follows:
“The steadily increasing population rate in Pakistan is a ticking bomb which will
certainly not wait till it is convenient for us to take note of it. What will follow this
population explosion is starvation, famine and poverty, the likes of which are already
visible in areas like Thar. Other indicators of overstretched resources and infrastructure
are apparent in Pakistan's unemployment rate, maternal and child mortality rate, literacy
and educational enrolment figures, and access to clean water and adequate food.”
9
The Constitution of Islamic Republic of Pakistan, 1973, art. 9.
10
2018 MLD 2007.
11
Human Rights Case No. 17599 of 2018.
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
Hence, Justice Pannun remarkably pointed out one of the most noteworthy aspects of population
control by making reference to the International Conference on Human Rights in Tehran in 1968,
wherein the need for ‘family planning’ was recognized, both as a right and as a means of enabling
other human rights. And hence, it was emphasized that parents should have the basic fundamental
right and freedom to determine the number of children, and plan and space out births as they wish.
When parents will focus on planned reproduction and promise a better future to their children,
international community standards will be fulfilled for the progeny to have a secure life ahead and
an economically viable generation to thrive in.
The requirement of a minimum age for marriage is a condition most needed to discourage parents
and guardians from marrying off their daughters at early ages. According to the International
Covenant on the Rights of Child, a child is defined as a male or female below the age of eighteen.
Even though internationally and legally, all over the globe, a child is any person below eighteen,
Pakistan has set different standards for considering if a person is a child, while also differentiating
between a male and female child. Sindh is the only province that has the same legal age for both
male and female, with a child being anyone below the age of 18. However, in Punjab the legal age
for marriage remains 18 for boys and 16 for girls, with the latter still standing in contravention
with the globally recognized standards for marriage. While Balochistan is still governed by the
Child Marriage Restraint Act 1929, there is currently a bill on prevention of child marriages being
tabled in the KPK Assembly.12
The issue with the law is the absence of a clause that requires the dissolution of a child marriage.
In 2015, a bill was proposed on federal and provincial levels where it, inter alia, stated that once
the court takes notice of a child marriage, it will stand dissolved. However, no such amendment
has been introduced in any of the provincial legislations. One of the contentions raised by the
Council for Islamic Ideology was that Islam prescribes no age for marriage hence, the law must
remain silent on setting the age of the person eligible to marry.13 Perhaps the most discouraging
attitudes of our government stemmed from the Council of Ideology’s perspective on this bill that
they considered to be anti-Islamic, especially after it had already been opposed and termed as un-
Islamic by the Religious Affairs Minister and the Minister of State for Parliamentary Affairs.
12
https://www.geo.tv/latest/232082-child-marriage-is-illegal-in-sindh-but-not-in-other-provinces
13
https://voiceofbalochistan.pk/opinions-and-articles/social-development/balochistan-awaits-legislation-on-child-
marriages/#:~:text=It%20discourages%20the%20solemnization%20of,law%20has%20a%20few%20shortcomings.
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
However, among many women who supported the bill in the National Assembly, Dr. Shireen
Mazari speaking in favour of the bill presented arguments similar to those proposed by PPP’s
Sherry Rehman who had upheld the same rationale during discussions on her bill in the Senate.
Dr. Mazari added that a “number of Islamic countries, including the UAE, Turkey, Egypt and
Bangladesh, had already enforced similar laws restraining the marriages before the age of 18”14
which is a clear and helpful example for Pakistan.
Even though child marriages have a number of complications and issues associated with the
relationship dynamics it ensues, the way it affects a girl’s personal space, health, and bodily
autonomy has been widely criticized and advocated against by international experts and human
rights organizations. In a joint statement by the executive directors of the UNICEF, United Nations
Population Fund and the U.N. Women on the International Day of the Girl Child 2012, it was
stated:
“Married] girls are not only at risk of early and unwanted pregnancies, but the
complications associated with pregnancy and child-birth are among the leading causes
of death for girls aged 15-19 worldwide. Child brides are also more likely to experience
discrimination and violence. Too often, they have little or no ability to leave abusive
partners and secure the social and legal support they need to improve their situation.”15
Serious reproductive health concerns have also been highlighted and studied by international
organizations such as the Center for Reproductive Rights, where in its child marriage fact sheet, it
pointed out the key issues associated with child marriages in South Asia and how only a few
countries were involved in resolving the problem.16 Unfortunately, there was no mention of steps
that Pakistan was taking in order to address the heinous crime that is being committed in every
part of the country. With regards to access to adolescent-friendly sexual and reproductive health
information, the Committee on the Rights of the Child (CRC Committee) expressed grave
concerns regarding the people in Pakistan who are yet to openly accept the concept and
understanding of adolescent reproductive health in order to work towards it and implement
measures for the same. The Committee emphasized that there is a clear “lack of access to sexual
14
https://www.dawn.com/news/1479444
15
http://www.unwomen.org/
en/news/stories/2012/10/joint-statement-international-dayof-the-girl-child-2012/#sthash.IplX3Gnj.dpuf
16
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/ChildMarriage_FactSheet_Web.pdf
Lahore Education and Research Network 8
Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
and reproductive health counselling and services, especially within rural areas of Pakistan”17 which
does not make the Pakistani society very open to the idea that awareness and education about
sexual or reproductive health should be disseminated widely. The CRC Committee encouraged
Pakistan to “establish more programmes and confidential services in the area of adolescent
health”18 and “elaborate clear policies and, when applicable, legislation addressing adolescent
health-related issues, in particular early marriage and pregnancies.”19
Moreover, in order to address violence against women and girls within the context of marriage,
international bodies and experts have once again expressed grave concerns regarding child and
forced marriages in South Asia. With the CEDAW Committee voicing their concerns regarding
marital rape and the absence of clear legislation criminalizing the said act,20 there is a dire need
for the legislature to delve into making laws that address not just the illegality of child marriages,
but the acts that follow through, such as forced sexual intercourse (rape) under the grab of
marriage, which should be criminalized regardless of the marriage being valid or invalid.
Recommendations and Conclusion
Union Councils, in instances of child marriages, are required to play a proactive role, which the
Court has called loco Parentis i.e. ‘in place of a parent’. The obligation is on the Union Council to
lodge complaints effectively and immediately on the receipt of Nikkahnama forms, columns of
which have not been accurately filled. Furthermore, a quarterly report needs to be prepared in order
to document and record all complaints lodged during a quarter and furnish the same to the Director
General Office for information. And most importantly, an authority and entity that fails to fulfil its
duty and function amounting to negligence, shall render himself liable for imitation of disciplinary
proceedings against him under the relevant law. While there are some conditions that are stipulated
within the judgment and shall be abided by before a marriage is solemnized and contracted, every
solemnized marriage under the Muslim Family Law is mandatory to be registered. And according
to the MFLO and West Pakistan Rules under MFLO, the Union Council is authorized to issue a
license to one or more persons who are fit and proper to solemnize the Nikkah and are known as
Nikkah Khwans or Nikkah Registrars as has been mentioned above. It is with issuance of such a
17
CRC Committee, Concluding Observations: Pakistan, para. 64, U.N. Doc. CRC/C/PAK/CO/3-4 (2009).
18
Ibid.
19
Ibid.
20
CEDAW Committee, Concluding Observations: Pakistan, para. 21, U.N. Doc. CEDAW/C/PAK/CO/4 (2013).
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
license that the so-called registrars attain the status of a licensee, wherein if they violate the
provisions of law and fail to register the marriage according to specified S.O.Ps (such as requiring
proper identity documentation), their license can be revoked and cancelled by the Union Council.
Hence, if an invalid and illegal marriage comes into the knowledge of the Union Council, the
complaint filed by them can result in the contracting party, promoters of the marriage and the
guardians being held liable for arranging and contracting the marriage against the Child Marriage
Restraint Act, 1929. Additionally, when such a marriage is brought to the notice of the Court, it
becomes the responsibility of the judiciary to dissolve the child marriage on the pretext of being
illegal and invalid. However, the hands of the judiciary are tied unless the legislature passes a law
on the dissolution of child marriages to dissuade parents, guardians and others directing,
conducting and performing a child marriage from getting involved or aiding in an act that should
not even be recognized under the law in the first place, let alone be registered.
As is stated in our constitutional jurisprudence, the State shall protect the institution of ‘marriage,
the family, the mother and the child’, and similarly, it is important for us to navigate our roles
within the larger framework, rather than solely depend on the State to take action. With each child
marriage that is contracted, a child’s fundamental guarantees under the Constitution and basic
freedoms embedded in the international human rights framework are violated. Adolescents and
even younger children are the children of the State, of their guardians, of their family members.
They are the responsibility of each party involved in making decisions for them. For every other
child that gets married, a heinous crime of an insensitive and cruel nature is committed, which is
unkind to the life a child can most likely spend, away from the horrific torture inflicted upon them
of tying the knot at an age where they are lacking basic understanding of themselves, their bodies,
their habits, and growing into a person that they are becoming familiar with.
At an age when children are known as minors under the law, pushing them to have married lives
of their own, is abhorrently unfair to them as they neither understand the concept of a matrimony
nor are they mentally or physically ready to accept the intrusion it brings to their life. Hence, child
marriages should be strictly monitored to penalize the people actively involved in contracting the
marriage (except children) and those abetting and aiding in the same. For bringing an end to child
marriages, an end to illiteracy is what is needed, and should be struggled for; with literacy, not
being limited to textbook curriculum, but extending further to actively understanding the
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Child Marriages: A Commentary on Tahira Bibi v SHO and Others (Writ Petition No.15567 of 2019) Sara Raza
obligations of parents and guardians, and the rights and protections afforded to children under the
law.
***
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