Child Marriage Restraint Act 1929: LHC explains why definition of ‘child’ is discriminatory

LAHORE: The Lahore High Court (LHC) held that the definition of ‘child’ in the Child Marriage Restraint Act 1929 while making a distinction on the basis of age is discriminatory, as it was not based on intelligible criteria and having nexus with the object of the law.

The court said that the difference in ages of male and female in the definition of ‘child’ was left unchanged in the Punjab Child Marriage Restraint (Amendment) Act, 2015, which does not comport with the mandate of Article 25.

The court said Article 25 of the Constitution provides that all citizens are equal before the law and are entitled to equal protection of the law. There shall be no discrimination on the basis of sex, the court added.

The court; however, observed that nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

The court also said the definition is indeed a special provision for the protection of women but in the process, it tends to afford greater protection to males by keeping their age of marriage higher than females.

The court observed that the definition of the child would have had a relation to the age of puberty and not been determined reflexively or randomly. Otherwise, there are no manageable standards for assigning ages of sixteen and eighteen for female and male, respectively, the court added.

The court; therefore, directed the Punjab government to issue the revised version of the 1929 Act (based on this judgment) and upload that version on its website for information within a fortnight.

The court passed this order in a petition of one Azka Wahid challenging section 2 (a) and (b) of the Act as amended and substituted by the Punjab Child Marriage Restraint (Amendment) Act, 2015 and prayed to the court to declare the same as unconstitutional.

The court said there is no prohibition in the Constitution on prescribing a minimum threshold for marriage and to criminalise child marriage and added the theme of the 1929 Act is to “restrain the solemnisation of child marriage.”

That purpose has been muddled by providing different ages for males and females for which there are no intelligible criteria. There may be a myriad of factors considered by the legislature while enacting the law, the court added.

The court said the 1929 Act (and its amendments) is a step towards fulfilment of duty by the State under Article 35. But, for some reason that cannot be discerned, an unmistakable partisan slant has muddled the clear stream of policy objectives animating the 2015 amendments, the court added.

The court said this principle of policy obliges the State to protect marriage, the family, the mother and the child.

The court said it is of crucial importance ‘to protect marriage, the family, the mother and the child’ to put a restraint on child marriage; yet the centre of the family, the mother, has been grossly discriminated which undermines the cogency of the constitutional scheme.

Copyright Business Recorder, 2024