Understanding the Dua case [Part – II]

The Child Marriage Restraint Act, 1929 unequivocally defines a child as someone under the age of 16 while provisions of Pakistan Penal Code, 1860 stipulate that children under the age of 16 cannot consent. Dua’s parents claim they have documentary proof of her age, which is not in line with her medical report. All this needs to be considered.

There are various reasons why the courts held that Child Marriage Restraint Act is not applicable in this case, one of which is that according to her medical reports Dua is 16/17 which is above the requisite threshold to trigger the above-mentioned law into play. But what about documentary proof of her age? Courts are reluctant to consider documents because habeas corpus proceedings under Section 491 of the Code of Criminal Procedure, 1898, as held in Syed Amjad Hussain Shah (PLD 2021 LAH 77), are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention – whether a detenue is to be set at liberty and a consequence thereof be permitted to go with the person of his or her choice or to drop the proceedings when the detention is found legal.

In other words, due to the summary nature of these proceedings, the high court cannot embark on a fact-finding enquiry. In Mst Safia (2014 MLD 1494 KAR) it was held that jurisdiction to decide such questions rests exclusively with family courts and not any high court.

In light of the aforementioned principles, Justice Tariq Saleem Sheikh propounded in Sultan Ahmed v DPO (2021 LHC 5616 LAH) that a sui-juris boy and girl can exercise the right to enter into a contract of marriage which shall be valid and not in contravention of the provision of the Child Marriage Restraint Act, 1929.

Article 9 of the constitution guarantees the right to life and liberty to everyone. Dua Zehra, an apparently major Muslim woman, could not be sent by either court to a Dar-ul-aman since doing so against her wishes would violate the constitutional mandate. Similarly, if Dua had stated that she did not want to go with her husband, nor her parents, because she is sui juris, the courts would not be able to force her. Courts are under duty to respect the wishes of a major, and allow her to move freely as is her constitutional right as was held in Muhammad v Mst Maryam Bibi (1987 SCMR 906).

It is unfathomable to imagine the agony and mental torment any parent goes through in such circumstances. It is also essential to understand why the girl ran away from home in the first instance nor would it be out of place to highlight the pitfalls of the rampant use of social media coupled with online apps which enable children to acquaint themselves with others online with such ease.

There are many examples of runaway marriages which culminate in habeas petitions filed by girls’ parents wishing to recover their daughters who have legally wed of their own accord; Article 35 of our constitution explicitly states that the state is under duty to protect marriage.

Unfortunately, the filing of identical petitions by either side after the girl marries someone of her choice is a widespread phenomenon (Mst Saima Mai (supra)). It’s tragic that such cases are frequently filed either by the parents in a frantic eleventh-hour attempt to end the marriage or by the girl herself against her close blood relatives like her real father, brothers and in some instances, even her mother. Due to the absurd notion of preserving the honour of the family, parents try to pressurize their daughters to return at any cost.

All of this is neither an endorsement of underage marriages nor an attempt to justify it. In fact, this is to emphasize the need to stop the violation of women’s cardinal human rights and to put an end to treating them as property to be given away into forced marriage, or killed for family honour.

Stricto sensu, there are no legal infirmities in the decisions reached by the Sindh High Court or the Lahore High Court. Unless the court decides to form a full bench to decide the controversy of sui juris and eliminate its applicability, things will stay opaque while these legal issues persist and ultimately the matter may ultimately face a similar outcome to previous precedents.

The best option for Dua’s parents, if they have documentary evidence to substantiate their claim about Dua’s age, is to challenge her age before the family court which can hold an enquiry to determine whether Dua was a major at the time of marriage; whether the marriage is valid under law; and what should be the sanction, if any, if the court concludes that Dua was underage and her marriage has no sanctity in the eyes of the law.

Concluded

Khadija Siddiqi is a barrister-at-law who practises human rights law. She tweets @khadijasid751

Amad Tahir is a criminal lawyer. He tweets @klMkLOz_4