Gender based violence (GBV) has many forms. One of its most prevalent forms in South Asia is child marriage. In most of these cases, underage girls are married to men much above their age, and this act is justified on religious and social grounds. The underage marriage of girls is also a device for forced conversions from other religions. As the matter is justiciable and involves the enforcement of fundamental rights under the Constitution of Pakistan, it inundates the courts in different proceedings. Often, these judicial pronouncements are declaratory in nature and are restricted to the case before the court. However, in the recent Shahid Imran Case (Crl. Misc. No. 33583-B/2023 filed in the Lahore High Court), the Lahore High Court also looked at the implementation aspects pertaining to the law on underage marriage. On 28 February 2024, Justice Anwaarul Haq Pannun directed the Prosecutor General, Punjab (PG) to hold a meeting with the Inspector General of Police (or his representative) along with the Director General of Local Government and Community Development (DG, LG & CD) to evolve a comprehensive mechanism to give full effect to the Muslim Family Law Ordinance, 1961 (MFLO) and all penal laws on the subject of underage marriages (Mst. Ramzana Bibi vs. District Police Officer (WP No. 875-HB/2024 filed in the Multan Bench of the Lahore High Court). In response, the PG Punjab held a meeting on 4 March 2024 and firmed up the roles of the police, prosecution and local government departments through an executive order dated 5 March 2024. The exercise was useful as it synchronised State action on the subject and focused on law enforcement.

Some select themes that were explored during the task merit mention here as these are jurisprudential in their content and affect the justice system; these are:

1. The Age of Consent for Marriage

The age of consent is a fundamental issue in family law as it is the determinant for many rights and duties. There is a difference of opinion about the age of consent for marriage; one school of thought revolves around the religious discourse that has varying views about the age of consent while the other school of thought hinges on the statutory law and the international law. Reflecting this divergence, in Mst. Mumtaz Bibi v Qasim (PLD 2022 Islamabad 228), Justice Babar Sattar of the Islamabad High Court analysed the two schools of thought and declared that irrespective of the branch of law – i.e., criminal, civil, family and administrative – the age of consent to enter into a marriage will be 18 years and the defence of an accused in a criminal proceeding related to rape and sexual abuse, under sections 375 and 377-A of the Pakistan Penal Code, 1860 (PPC) respectively, shall not be entertained. He heavily relied on the United Nations Convention on the Rights of Child, 1989 (UNCRC) in his judgement besides pinpointing the conflicts and discrepancies within different statutory instruments. On the other hand, Justice Ali Zia Bajwa of the Lahore High Court passed a judgement in Nazar Muhammad v DPO, etc. (WP No. 57371/2023 in the Lahore High Court) in which he relied on Yousaf Masih alias Baggah Masih v the State (1994 SCMR 2102) regarding the age of contracting marriage under the Islamic law and the consequences of a underage marriage (in which a girl is less than 18 years of age) to hold that marriage is a defence against application of rape charges under section 375 of thePPC.

In line with existing jurisprudence[1], he declared:

In this regard, suffice to say that the sexual offence mentioned in section 375 PPC cannot be equated with the consensual consummation of marriage with a legally wedded girl, who has attained puberty, though she has not attained the age of marriage provided under the Act of 1929

From the perspective of policing and application of criminal law, these two judgments take divergent positions. This point may be finally settled by the Supreme Court of Pakistan in future litigation. For investigation and trial purposes, the two views will affect the outcomes in the Punjab and the Islamabad Capital Territory (ICT). An Investigation Officer (IO) in the Punjab Police will have to decide as per the judgment of the Lahore High Court whereas the IO in the ICT will be bound by the judgement of the Islamabad High Court. The police organisations in other provinces may choose from one of these views to finalise their investigations. The trial courts will also be bound to follow their own High Courts in deciding whether to treat the marriages as valid, voidable or void, and whether to extend the defence of marriage to an accused in a rape case.

2. Determination of Age

In criminal cases of alleged rape and kidnapping/abduction involving a minor girl, the new mechanism set in place through the executive order, requires the IOs of the Punjab Police to determine the age of a girl. For this, there is no enabling legal provision in the Anti-Rape (Investigation and Trial) Act, 2021. Therefore, to fill in the gap, and on the analogy of section 8 of the Juvenile Justice System Act, 2018, the Shahid Imran case requires the police to determine the age of a girl in every investigation. The judgment has also reversed the earlier practice of affording primacy to medical evidence in cases of age determination. The law now requires that documentary evidence be treated as the primary basis of age determination, and to only resort to medical evidence in the absence of documentary evidence. Obtaining documentary evidence is relatively easy for the police compared to obtaining medical evidence, which is not only time-consuming but also amenable to protracted processes as medical boards constituted in criminal cases often drag on and prolong case proceedings. The practice, if carried out earnestly, will provide an opportunity for the police to finalise the investigation at the earliest and to submit a report under section 173 of the Code of Criminal Procedure, 1898 (CrPC) to the prosecution in due time.

3. Charging in Registration of a Criminal Case

The police register a criminal case in Pakistan by registering a First Information Report (FIR) under section 154 of the CrPC. While registering an FIR, the police apply criminal charges often in a discretionary manner. These charges are either upgraded or downgraded by the police choosing to apply different laws. The charging by the police affects the whole criminal justice system as the applicable law defines the rights of an accused pertaining to his bail and the relevant court for the trial. The language of the application for registration of FIR manipulates the charging in GBV cases. If the language spells out a heinous offence, the charging is done on the higher side. Usually, the drafting of an application is affected by the officer in charge of a police station, the Station House Officer (SHO). After the establishment of the prosecution departments in all four provinces and at the federal level, there is good cause to restrict the police only to the recording of information and to allow the prosecution departments to manage the executive charging of criminal offences in GBV cases. This will streamline the process significantly. Likewise, the final report under section 173 of the CrPC should be submitted by the prosecutor instead of the SHO, in a manner that enables the interaction of the court and prosecution only.

4. Effect of Eighteenth Constitutional Amendment on Criminal Laws

After the Eighteenth Constitutional Amendment in 2010, the concurrent legislative list enabling the Federation and the Provinces to jointly legislate on specified matters was abolished. The implication was an increase provincial legislative power subject to the caveats of Articles 142 and 143 of the Constitution that deal with criminal law, criminal procedure, evidence law and the prevalence of the federal law over the provincial law.

Resultantly, the provinces enacted many laws that they deemed to belong to the provinces. In the context of the criminal law regarding the age of marriage, the Child Marriage Restraint Act, 1929, which criminalised underage marriages with specific age limits, was also provincialised. Soon after, a new law was introduced by Sindh, the Sindh Child Marriage Restraint Act, 2014, and amendments to the federal Act were introduced to apply at the provincial level in Punjab.

The writ of the State depends on the enforcement of the criminal law. This new provincialisation of criminal law intersecting with family law must be addressed to ensure the certainty of law and to maintain a uniform system throughout the country. Justice Ali Zia Bajwa noted the Sindh Child Marriages Restraint Act, 2014 in his judgment in Nazar Muhammad v DPO, etc., and noted that the law did not declare underage marriages void, but rather criminalised them. While the Constitution does not bar the provinces from creating criminal legislation, it does, however, require that concurrent legislative competence be exercised as per Articles 142 and 143 of the Constitution. If the tendency to enact criminal laws is not harmonised with Articles 142 and 143 of the Constitution, it may lead to the provincialisation of the MFLO as well, which is a penal law and is considered essential for the protection of women’s rights in Pakistan.

5. International Law

The impact of international law on municipal laws in Pakistan has increased significantly. This impact is not intrusive, but is rather consent-based. For example, after the Government of Pakistan ratified the UNCRC, it consented to import the age of a child (i.e., everyone under the age of 18 years) into its legal system as per the Convention’s provisions. Thus, Justice Babar Sattar of the Islamabad High Court opted to reason his judgment in Mst. Mumtaz Bibi v Qasim on international law rather than municipal law.

Way Forward

Most problems faced by Pakistan’s citizens are addressed by litigation triggered by delegated law-making by the executive. The gaps addressed by the executive order issued in compliance with the order of the Lahore High Court in Mst. Ramzana Bibi v District Police Officer are likely to bring in qualitative changes in the investigation, prosecution and adjudication in cases of underage  marriage. This propensity is gaining traction, and is therefore noteworthy.

A comparable example is the use of information technology in the justice sector. A Data Protection Standing Order by the Punjab Police (Standing Order No. 2, 7 March 2024) was issued to deal with litigation that challenged police powers to maintain record of criminals in databases, such as Ghazi Ihsan v Government of the Punjab (WP No. 42287/2023 in the Lahore High Court). Justice Ali Zia Bajwa of the Lahore High Court, instead of striking down the whole system of record-keeping, for want of a dedicated legislation on the subject, disposed of the case as the police provided a transparent mechanism for data protection, rectifications and erasures – modelled on the EU General Data Protection Regulation, 2016 (EU GDPR 2016/679) – under Articles 163 and 166 of the Police Order, 2002. It is hoped that further issues emanating from litigation will emulate the process to protect the citizens and provide better protection against GBV in the country.

[1] Yousaf Masih alias Baggah Masih vs. The State (1994 SCMR 2102), Mst. Bakhshi vs. Bashir Ahmad and another (PLD 1970 Supreme Court 323), Mauj Ali vs. Syed Safdar Hussain Shah and another (1970 SCMR 437), Muhammad Khalid (PLD 2021 Lahore 21), Farooq Omar Bhoja vs. Federation of Pakistan (PLD 2022 FSC 1) and Ameer Umar vs. The State (2002 P. Cr. L. J 41)

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