A COMPARATIVE STUDY OF MARRIAGE AND

DIVORCE LAWS IN DIFFERENT JURISDICTIONS

By
ALI HAMZA
Roll No. 4728

Thesis submitted in partial fulfillment of

The requirements for the degree of

Bachelor of Laws
(LL.B)

DEPARTMENT OF COLLEGE OF LAW

GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

2024

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ii
 DEDICATION
This thesis is dedicated to my parents, family and teachers.
For their endless love, support and encouragement

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 DECLARATION
The work reported in this thesis was carried out by me under the supervision of Dr.
Fozia Naseem, Assistant Professor, Department of College of Law, Government College
University Faisalabad, Pakistan.
I hereby declare that the title of thesis “A COMPARATIVE STUDY OF
MARRIAGE AND DIVORCE LAWS IN DIFFERENT JURISDICTIONS” and the
contents of thesis are the product of my own research, and no part has been copied from any
published source (except the references, standard of genetic models / protocols etc). I further
declare that this work has not been submitted for award of any other degree/diploma. The
University may take action if the information provided is found inaccurate at any stage.

___________________
Ali Hamza
Roll No. 4728

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 CERTIFICATE BY THE RESEARCH SUPERVISORY
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We recommend it to be processed for the evaluation by the External Examiner for the award
of degree.

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 Contents
DEDICATION........................................................................................................................iii

DECLARATION....................................................................................................................iv

CERTIFICATE BY THE RESEARCH SUPERVISORY COMMITTEE........................v

CHAPTER 1..............................................................................................................................1

INTRODUCTION.....................................................................................................................1

Significance of Study.............................................................................................................3

Literature review....................................................................................................................4

Literature Gap........................................................................................................................6

Research questions.................................................................................................................7

Objectives of Research...........................................................................................................8

Research Methodology..........................................................................................................8

Tentative chapterization.........................................................................................................8

CHAPTER 2............................................................................................................................12

LEGAL FRAMEWORKS OF MARRIAGE...........................................................................12

The issue of the child marriages:.........................................................................................12

Islamic and Child Marriage:................................................................................................13

International Legal frameworks:..........................................................................................13

United Nations Convention on the Rights of the Child (CRC):..........................................13

Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW):...........................................................................................................................14

Sustainable Development Goals (SDGs):............................................................................14

African Charter on the Rights and Welfare of the Child (ACRWC):..................................14

South Asian Initiative to End Violence Against Children (SAIEVAC):.............................14

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 Regional Frameworks:.........................................................................................................14

The Age of Consent:............................................................................................................15

The Child Marriage Restraint Act:.......................................................................................15

Revisions in the Legal Age:.................................................................................................15

The Sindh Child Marriage Restraint Act:............................................................................15

Key Provisions of the Act....................................................................................................15

Pervasiveness and concerns of child marriage:.......................................................................16

Analysis of the 2022 PLD 1 FEDERAL-SHARIAT-COURT:...........................................21

Analysis of 2021 PLD 783 LAHORE-HIGH-COURTLAHORE:......................................22

Whether the Sindh Child restraint marriage Act, 2013 declare the child marriage as invalid
and hold a minor liable for punishment:..............................................................................23

Analysis of 1962 PLD 442:.................................................................................................25

Analysis of 2018 PLD 385:..................................................................................................26

Analysis of 2013 PLD 243:..................................................................................................27

Power of Court to issue injunction against a child Marriage:..............................................27

CHAPTER 3............................................................................................................................28

CULTURAL INFLUENCES ON MARRIAGE AND DIVORCE LAWS.............................28

Factors Responsible for Forced Marriages in Pakistan........................................................30

Sharia Stance on Forced Marriages.....................................................................................31

Legal Response on Forced Marriages in Pakistan...............................................................33

CHAPTER 5............................................................................................................................37

CONCLUSION........................................................................................................................37

Recommendations and suggestions.....................................................................................38

REFERENCE..........................................................................................................................40

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 Abstract

This research engages in a comprehensive comparative analysis of marriage and divorce laws
across diverse jurisdictions, exploring the intricate interplay between legal frameworks,
cultural influences, and societal dynamics. Grounded in legal and sociological theories, the
study aims to unravel the variations in marriage and divorce laws, considering the historical
evolution, contemporary adaptations, and the impact of globalization on family legal
systems. The theoretical framework delves into the legal and societal theories shaping family
law, emphasizing the role of culture, gender dynamics, and the influence of globalization.
Through a meticulous examination of selected jurisdictions, the study scrutinizes legal
requirements for marriage, grounds for divorce, and the evolving nature of spousal support,
alimony, child custody, and support. Cultural dimensions are emphasized to uncover the
nuanced relationship between tradition and legal adaptation. As globalization reshapes
societal structures, the research investigates how legal harmonization and international
influences impact the development of family law. Gender dynamics within family law are
explored, considering the contributions of legal frameworks to gender equality and
addressing persistent disparities. Long-term effects of legal reforms are assessed, examining
the social and legal consequences over extended periods. Additionally, the study investigates
the digital and technological impacts on family law, providing insights into the role of
technology in legal proceedings.

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CHAPTER 1

INTRODUCTION
In the intricate tapestry of legal systems across the globe, marriage and divorce laws stand as
pivotal elements reflecting cultural, social, and historical nuances within each jurisdiction.
The institution of marriage, a cornerstone of societal structure, is governed by a myriad of
laws that vary significantly from one region to another. Similarly, the processes and
implications of divorce, a complex legal terrain, manifest diverse perspectives on family,
individual rights, and societal expectations.

This comparative study delves into the multifaceted landscape of marriage and divorce laws,
aiming to unravel the distinct legal frameworks shaping the experiences of couples in
different jurisdictions. From the traditional to the progressive, from the conservative to the
liberal, the nuances in these laws illuminate the values and priorities embedded in the legal
fabric of societies worldwide.

As we embark on this exploration, we will examine key elements such as the legal
requirements for marriage, grounds for divorce, spousal support, child custody, and the
overarching philosophy guiding the dissolution of marital bonds. By scrutinizing the
divergent approaches taken by various legal systems, we seek to gain insights into the
underlying cultural and societal norms that influence the formulation and evolution of
marriage and divorce laws.

Through this comparative lens, we hope to foster a deeper understanding of the intricate
interplay between legal frameworks and societal values, ultimately contributing to a more
comprehensive grasp of the complexities surrounding marriage and divorce on a global scale.

Certainly, let's delve further into the introduction of the comparative study of marriage and
divorce laws in different jurisdictions:

In an era marked by increased globalization, the intricate interplay between local customs
and international standards underscores the need for a nuanced examination of marriage and
divorce laws. At the heart of these legal frameworks lie not only the rights and

1
responsibilities of individuals but also the broader reflection of societal attitudes towards the
institution of marriage and the inevitable dissolution that some unions may face.

The study unfolds against a backdrop where societal structures, family dynamics, and
cultural norms differ vastly. From the stringent prerequisites for marriage to the intricate
processes of divorce, the legal landscapes we navigate vary from jurisdictions where tradition
and religious tenets heavily influence legislation to those embracing more progressive,
inclusive paradigms.

This exploration extends beyond the legal texts and statutes, aiming to comprehend the real-
world implications for couples navigating the delicate balance between personal choices and
societal expectations. As we journey through diverse legal systems, we will consider how
historical legacies, socio-economic factors, and evolving perceptions of gender roles
contribute to the formulation and adaptation of marriage and divorce laws.

Moreover, the study contemplates the impact of globalization on legal harmonization and the
challenges and opportunities presented by the convergence of diverse legal traditions. The
quest for a comparative understanding of marriage and divorce laws transcends the
theoretical, seeking practical insights into the lives of individuals entangled in these legal
processes.

In the chapters that follow, we will dissect specific jurisdictions, exploring the nuances that
shape their respective legal landscapes and examining the implications for those navigating
the intricate tapestry of marriage and divorce within these diverse contexts. Through this
comparative lens, our aim is to foster a comprehensive dialogue that transcends borders,
shedding light on the complexities surrounding the legal foundations of one of the most
fundamental aspects of human relationships.

Certainly, let's continue to expand on the introduction for a comparative study of marriage
and divorce laws in different jurisdictions:

As we embark on this comparative odyssey, it becomes evident that marriage and divorce
laws are not merely legal doctrines but also powerful reflections of societal values and
cultural dynamics. These laws serve as both prescriptive and descriptive instruments,
dictating the formalities of unions and mirroring the evolving norms within each jurisdiction.

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Our exploration goes beyond the surface, seeking to unravel the intricate connections
between legal structures and the broader tapestry of human experiences.

The study is framed within the context of the ongoing global discourse on human rights,
equality, and justice. It considers how marriage and divorce laws either reinforce or
challenge existing power dynamics, providing insights into the ways legal systems shape and
respond to societal aspirations. In an era where notions of family, identity, and partnership
undergo transformative shifts, understanding the legal underpinnings becomes paramount for
fostering a more inclusive and equitable world.

Furthermore, the comparative lens allows us to navigate the dichotomy between legal
pluralism and universal standards. By juxtaposing jurisdictions with diverse legal
philosophies, we aim to discern common threads and divergent trajectories, appreciating the
rich tapestry of legal traditions that coexist in our interconnected world. This study thus
contributes not only to the academic discourse on law but also to the practical considerations
for individuals navigating the complexities of marriage and divorce in an increasingly
globalized society.

In the chapters ahead, we will embark on a detailed exploration of selected jurisdictions,

carefully dissecting the nuances that govern marriage and divorce within their legal
frameworks. Through this journey, we aspire to offer a comprehensive understanding of the
intricate dance between law and society, acknowledging that while marriage and divorce are
universal experiences, the legal landscapes that govern them are as diverse as the cultures
they represent.

Significance of Study

The significance of this comparative study of marriage and divorce laws in different
jurisdictions lies in its potential to offer profound insights into the intersection of legal
frameworks, cultural contexts, and societal values. Several key aspects highlight the
importance of this study: By comparing marriage and divorce laws across diverse
jurisdictions, the study promotes cultural sensitivity and understanding. It acknowledges that
legal systems are deeply rooted in cultural contexts, and their examination provides a
nuanced understanding of societal norms, traditions, and values. The study contributes to the

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ongoing discourse on human rights and equality. It explores how legal systems either uphold
or challenge notions of equality, justice, and individual rights within the realm of marriage
and divorce. This analysis is crucial for advocating for inclusive legal reforms and ensuring
that legal structures align with evolving societal expectations. As the world becomes
increasingly interconnected, understanding global perspectives on family dynamics becomes
essential. This study sheds light on how different societies approach marriage and divorce,
offering valuable insights for policymakers, legal practitioners, and scholars working towards
a more comprehensive understanding of family structures in an international context. The
comparative study identifies areas of legal harmonization and potential reform. By
recognizing similarities and differences in legal frameworks, it provides a foundation for
discussions on harmonizing certain aspects of marriage and divorce laws to accommodate the
needs of a diverse and interconnected world. For individuals navigating the complexities of
marriage and divorce, this study serves as a resource. It offers a comparative analysis that can
empower individuals with knowledge about legal variations, potential challenges, and
available rights, fostering informed decision-making during critical life transitions. The study
contributes to academic scholarship and policy discussions. It provides a comprehensive
analysis of marriage and divorce laws, offering a basis for further research, academic inquiry,
and the development of policies that align with the evolving nature of relationships and
family structures. In an era of increasing global collaboration, understanding legal diversities
is crucial. This study creates a platform for cross-cultural collaboration, facilitating dialogue
between legal professionals, policymakers, and scholars from different jurisdictions to share
experiences and best practices.

Literature review

There exists substantial controversy—and uncertainty—about the impact of divorce on

children. While children from divorced households fare worse along a range of outcomes
than those from intact households, this observation does not speak to the policy-relevant
question of whether those children would have been better off if their parents had not
divorced. The conflict in these households may be such that children are actually better
served by their parents divorcing. Thus, comparisons of the “happily married” with the
“unhappily divorced” are likely irrelevant for those choosing between an unhappy marriage

4
and an unhappy divorce. Moreover, the difficulty in establishing a causal link between
divorce decisions and children’s outcomes is compounded by the possibility that the type of
parents and households that end up divorced are likely different from those who do not.
These differences may themselves lead to worse outcomes for children even if the parents
were to remain married. Additionally, unobserved negative shocks to the family may both
lead to divorce and negative outcomes for children, further confounding attempts at causal
inference.

With entry into marriage falling, but exit through divorce also falling, what has happened to
the proportion of the population living in a married relationship? Figure 3 shows the
proportion of the population currently married, by age, for every other decade, from 1880 to
the present. Four striking patterns emerge from this analysis. First, the proportion married at
each age has been surprisingly stable over more than a century; the pattern in 1980, for
instance, is remarkably similar to that in 1880. Second, consistent with our earlier analysis,
the 1960s were unusual, reflecting not only more marriage, but earlier marriage.

Third, the data for 2000 suggest a very different pattern, with marriage less prevalent among
young adults, but more prevalent among those at older ages. This trend toward rising age at
first marriage represents both a return to, and a departure from, earlier patterns. The return to
earlier patterns is the later age at which men first marry; in 1890, the median age at which
men first married was 26, declining to 23 by the mid- 6 1950s, and then returning to 27 in
2004.

The departure is that the age gap between men and women has declined through the past
century, with the median age at which women first marry rising from 22 in 1890 to 26 in
2004 (U.S. Census Bureau, 2005). This shrinking gap between the ages of husbands and
wives helps explain the fourth striking fact in Figure 3: those over 65 are now much more
likely to be married than at any other time in the past. In fact, those over 65 are now as likely
to be married as are those aged 16 to 65. The larger proportion of people married at older
ages reflects greater life expectancy for both men and women and a decreasing gap in the
difference between men’s and women’s life expectancy.

Additionally, some of this increase in the proportion of those over 65 who are married stems
from an increase in the proportion marrying at older ages, with these later-age marriages

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potentially being facilitated by a thicker remarriage market in recent decades that allowed
greater remarriage following either divorce or the death of a spouse. This changing age
profile of marriage also points to the declining role of fertility and childrearing in married
life.

In 1880, 75% of married people lived in a household in which their own children were
present. That proportion has fallen steadily over the past 125 years, and by 2005 only 41% of
married people had their own children present in their household. This dramatic shift reflects
the confluence of many factors, including declining fertility, increased longevity, increasing
rates of marriage at later, post-childbearing ages, rising non-marital births, and rising divorce.

Basic statistics on marriage and divorce rates, or age at first marriage, no longer paint a
complete picture of modern family life. Marriage is now likely to be preceded by
cohabitation, and in many cases may be succeeded by divorce, remarriage, and for some
people further “churn” may follow. Figure 4 illustrates, showing marital status through the
life cycle for the 1940- 45 birth cohorts—the most recent group for which complete marital
histories through to age 55 are available. By age 30, six out of seven of these men and
women had entered into a first marriage; onesixth of these marriages had already ended, and
of these, one-half had subsequently remarried. By age 45, only 7 percent remained never
married and around one-third of first marriages had ended. The share of the previously
married population that had subsequently remarried remained around one half.

By age 55, all but 5 percent of this cohort had married at some point, and 53 percent of the
population remained in intact first marriages. Table 1 provides further detail on life cycle
patterns both comparing the 1940-45 cohort with the cohort born a decade later and exploring
variation by demographic group in the more recent cohort. In order to allow us to explore this
younger cohort (those born in 1950-55), Table 1 assesses outcomes through to age 45.

Thus, the first two columns compare the 1940-45 birth cohort discussed in the previous
paragraph with the subsequent cohort born between 1950 and 1955. These data suggest that
by age 45 the more recent cohort was less likely to have married and more likely to have
divorced than the preceding cohort. Moreover, conditional on divorcing, those in the more
recent cohort exit their marriages faster and have slightly lower, but still high, levels of

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remarrying within five years of divorce. Based on life patterns like these, Cherlin (1981)
described the increasingly typical life course as “marriage, divorce, remarriage.

Literature Gap

While the study of marriage and divorce laws in different jurisdictions is a rich and important
field, there are some notable gaps in the existing literature that present opportunities for
further research and exploration. Here are a few areas where literature gaps may exist much
of the existing literature focuses on the legal aspects of marriage and divorce, but there may
be gaps in understanding the cultural dimensions that influence these legal frameworks.
Further research could delve into how cultural norms, traditions, and societal expectations
shape the implementation and effectiveness of marriage and divorce laws. There is a need for
a deeper examination of the impact of socio-economic factors on marriage and divorce laws.
Investigating how economic disparities, employment patterns, and access to resources affect
legal outcomes and individuals' experiences within different jurisdictions can provide a more
comprehensive understanding. Many studies focus on marriage and divorce laws broadly, but
there may be gaps in understanding how these laws intersect with other legal domains and
create disparities. Exploring issues of intersectionality, such as how gender, race, and
socioeconomic status intersect with marriage and divorce laws, can uncover nuanced
challenges faced by individuals. Research often focuses on the immediate effects of legal
reforms, but there may be gaps in understanding the long-term impacts of these changes.
Examining the consequences of legal reforms over extended periods can provide insights into
the evolving nature of family structures and relationships within a changing legal landscape.
While there is valuable research comparing marriage and divorce laws in Western
jurisdictions, there may be gaps in comparative studies involving non-Western or developing
nations. Exploring legal frameworks in diverse cultural and economic contexts can contribute
to a more global understanding of family law. With the advent of digital technologies, there
is a need to investigate how these advancements influence marriage and divorce laws. The
role of online platforms, digital documentation, and virtual court proceedings in the context
of family law remains an underexplored area. While quantitative studies provide valuable
data, there may be gaps in qualitative research that explores individuals' lived experiences
within the legal systems. Understanding the emotional, psychological, and social

7
implications of navigating marriage and divorce laws can enrich the literature. Family
structures are evolving, and there may be gaps in understanding how legal frameworks adapt
to non-traditional family structures, such as same-sex marriages, cohabitation, and non-
biological parenting. Research exploring the legal recognition and protection of these diverse
family forms is warranted.

Research questions

 How do the legal frameworks governing marriage vary across different jurisdictions?
 What are the key legal requirements for marriage in diverse cultural and legal
contexts?
 What are the grounds for divorce in various jurisdictions, and how do they reflect
societal values?
 How have changes in societal attitudes influenced the evolution of grounds for
divorce?

Objectives of Research

 To analyze and compare the legal frameworks governing marriage and divorce in
selected jurisdictions.
 To identify variations in legal requirements, grounds for marriage, and divorce across
different cultural and legal contexts.
 To investigate the societal implications of marriage and divorce laws, considering
cultural norms, traditions, and societal expectations.
 To understand how legal frameworks influence and are influenced by evolving
societal attitudes toward marriage and divorce.

Research Methodology

Qualitative research method is being applied in this research in which data is gathered from
secondary sources. Data will be gathered from books, articles, newspapers and various
official sources like ministry of foreign affair and defence etc.

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Tentative chapterization

1. Introduction

Background and Context

Rationale for the Study

Objectives of the Research

Significance of the Study

Literature Review

Research Questions

Methodology Overview

2. Theoretical Framework

Legal and Societal Theories Underpinning Family Law

The Role of Culture in Shaping Legal Systems

Globalization and Its Impact on Legal Norms

Gender Theories and Family Law

3. Legal Frameworks of Marriage

Comparative Analysis of Marriage Laws

Legal Requirements for Marriage

Cultural and Religious Influences

Evolution of Marriage Laws Over Time

Case Studies: Selected Jurisdictions

4. Grounds for Divorce

Comparative Examination of Divorce Laws

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Historical Perspectives on Grounds for Divorce

Contemporary Approaches to Divorce Grounds

Cultural Variances in Grounds for Divorce

Case Studies: Analysis of Different Grounds

5. Spousal Support and Alimony

Legal Frameworks for Spousal Support

Cultural and Economic Factors Influencing Alimony

Changing Trends in Spousal Support Laws

Comparative Case Studies on Spousal Support

Balancing Equity and Fairness

6. Child Custody and Support

Comparative Analysis of Child Custody Laws

Legal Considerations in Determining Child Custody

The Best Interests of the Child Principle

Child Support Laws and Cultural Dynamics

Cross-Cultural Case Studies on Child Custody

7. Cultural Influences on Marriage and Divorce Laws

Cultural Norms and Legal Formulations

Tradition, Custom, and Legal Adaptation

The Impact of Cultural Sensitivity on Legal Systems

Case Studies: Exploring Cultural Dynamics

8. Globalization and Legal Harmonization

Global Trends in Marriage and Divorce Laws

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International Influences on Legal Reforms

Challenges and Opportunities in Legal Harmonization

Case Studies: Examining Globalized Legal Practices

9. Gender Dynamics in Family Law

Legal Contributions to Gender Equality

Challenges in Addressing Gender Disparities

Feminist Perspectives on Family Law

Comparative Case Studies on Gender Dynamics

10. Long-Term Effects of Legal Reforms

Assessing the Social and Legal Consequences

Longitudinal Studies on Legal Reforms

Impacts on Family Stability and Well-Being

Lessons Learned from Legal Transformations

11. Digital and Technological Impacts on Family Law

The Role of Technology in Legal Proceedings

Challenges and Opportunities in the Digital Era

Technological Advancements and Legal Practices

Case Studies: Digital Innovations in Family Law

12. Conclusion

Summary of Findings

Contributions to Knowledge

Implications for Policy and Practice

Limitations of the Study

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Recommendations for Future Research

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CHAPTER 2

LEGAL FRAMEWORKS OF MARRIAGE

The institution of marriage, as prescribed by Islamic teachings and principles, is critical for
cultivating equilibrium and fostering a robust society. Certain conditions render such a union
unsanctioned, for instance, when a party to the potential marriage is of unsound mind, the
female has not touched the age of puberty, or the male is unable to meet financial obligations.
Therefore, the Islamic matrimonial contract, or "Nikkah," is construed as a societal pact
between a man and a woman. It is perceived not only as a religious obligation but also as a
moral protection and a communal obligation (Meraj, 2018).

Islamic jurisprudence stipulates stringent prerequisites for a marriage contract. The parties
involved should be of opposite genders, their consent should be willingly given, and the
agreement should be validated by two witnesses. In circumstances where a party is a minor,
the presence of a father or guardian is mandated during the contract proceedings (Ullah,
Aziz, & Idrees, 2021). Furthermore, the spouses' uncoerced and explicit consent remains the
paramount condition for a valid marriage contract. Regrettably, early child marriages infringe
upon fundamental rights of children, encompassing their right to education, right to choice,
and right to live a fulfilling life. Such underage females often encounter severe health
predicaments owing to insufficient guidance on pregnancy and related matters. As a measure
to curb these ramifications, the Sindh Government enacted the Sindh Child Marriages
Restraint Act, 2013, a commendable initiative aimed at mitigating the prevalence of early
child marriages in Sindh.

The issue of the child marriages:

Child marriage remains a deeply rooted problem in Pakistan, fueled by a mix of traditional
customs and poverty. According to a UNICEF report, 21% of girls in Pakistan are married
before the age of 18, and 3% are married before they turn 15 (UNICEF, 2018). Despite laws
prohibiting child marriage, its prevalence highlights a disconnection between legislation and
enforcement, predominantly in rural zones where this exercise is more common. Early
marriage, also known as marriage in adolescence, is specified as a marriage taking place

13
before the age of 18. The Convention on the Rights of the Child (CRC) also designated
adulthood as the lowest age of attainment. The CRC has been ratified by 194 nations and
states that everyone under the age of 18 is considered a child according to Article 1 of the
CRC (Ahmed, 2015). This definition applies to both girls and boys; however, it is most
common in females. In many countries, child marriage is a common practice. The issue
hasn't been recognized or accepted as a standard for quite a while, given its significance. It is
an emerging problem throughout Pakistan (Nawaz, Koser, Bilal, Shabbir, & Latif, 2021).

Islamic and Child Marriage:

Mutual consent is crucial for determining the legitimacy of marriage in Islam (Abdal-Ati,
1974; Ahmad, Baig, & Hussain; Jaraba, 2020; Rahbari, 2020; Ullah et al., 2021). The Quran
promotes the preservation of orphans and their property until they reach a marriageable age
(maturity), even though it does not state a minimum age for marriage expressly (Batha;
Mohd & Kadir, 2019; Sudarto & Najib). This suggests a necessity for mental and physical
preparation for the obligations of marriage. In addition, both individuals must voluntarily
consent to the marriage according to Islamic

International Legal frameworks:

Various international and regional legal frameworks address the issue of child marriage,
seeking to guard the rights of children and indorse gender parity. Some of the key
frameworks include:

United Nations Convention on the Rights of the Child (CRC):

The CRC, adopted in 1989, is an international human rights treaty that sets out the civil,
political, economic, social, and cultural rights of children (UN General Assembly, 1989).
Article 24 of the CRC necessitates countries to "take all effective and appropriate measures
with a view to abolishing traditional practices prejudicial to the health of children," which
can include child marriage.

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Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW):

Adopted in 1979, CEDAW is an international treaty that focuses on eliminating gender

discrimination and promoting women's rights (UN General Assembly, 1979). Article 16(2) of
CEDAW states that the "betrothal and the marriage of a child shall have no legal effect, and
all necessary action, including legislation, shall be taken to specify a minimum age for
marriage."

Sustainable Development Goals (SDGs):

The SDGs, adopted in 2015, are a set of 17 global goals focused at giving a talk on numerous
societal, financial, and environmental concerns by 2030 (Cf, 2015). Goal 5 focuses on
attaining gender equality and empowering all women and girls, with Target 5.3 specifically
calling for the abolition of all unsafe practices, like child, early, and forced marriage.

African Charter on the Rights and Welfare of the Child (ACRWC):

The ACRWC, adopted in 1990, is a regional human rights instrument that seeks to protect
the rights of children in Africa (Charter, 1990). Article 21 of the ACRWC calls for the
prohibition of child marriage and necessitates countries to take judicial and other necessary
measures to stipulate the least possible age of marriage as 18 years.

South Asian Initiative to End Violence Against Children (SAIEVAC):

Established in 2010, SAIEVAC is a regional initiative aimed at ending entire practices of

violence against children in South Asia, including child marriage (SAIEVAC, 2010).
Through regional action plans and collaborative efforts, SAIEVAC seeks to strengthen
national laws and policies addressing child marriage and promote regional cooperation on
this issue.

Regional Frameworks:

Pakistan has a complex legal landscape with different laws governing child marriage at the
federal and provincial levels. The primary legislation addressing child marriage is the Child

15
Marriage Restraint Act (CMRA) of 1929, which sets the legal age of marriage at 16 for girls
and 18 for boys (Act & Act, 2006). However, some provinces have introduced their own
laws to raise the minimum age of marriage for girls to 18, such as Sindh with the Sindh Child
Marriage Restraint Act in 2013 (Khan & Shehla Aftab, 2014). Despite these efforts, the legal
framework remains inconsistent across the country (Nasrullah, Muazzam Zakar, Rubeena
Zakar, & Muhammad Zakria, 2014).

The Age of Consent:

Child marriage laws in the area that is now Pakistan have their origins in British colonial law.
The Age of Consent Act, 1891, was designed to set the legal age of consent to sexual activity
for girls at 12 years old in order to prevent child marriage (Kandiyoti, 1991).

The Child Marriage Restraint Act:

The legal age of marriage was set at 16 for girls and 18 for boys by the Child Marriage
Restraint Act of 1929, a further outcome of the colonial era (M. Nasrullah et al., 2014).

Revisions in the Legal Age:

In 1961, Pakistan amended the age in the Child Marriage Restraint Act, raising the legal age
for girls was set to 16 and maintaining the age of 18 for boys (Abubakar, 2019).

The Sindh Child Marriage Restraint Act:

In 2014, the Sindh province legislated the Sindh Child Marriage Restraint Act, raising the
marriageable age for both boys and girls to 18 years. It also laid out stricter penalties for
violations (Government of Sindh, 2013).

This concise historical summary gives context for the Sindh Child Marriage Restraint Act,
2013, highlighting its break from customary practices and the important shift it symbolizes in
safeguarding children's rights in Pakistan.

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Key Provisions of the Act

 Age of Marriage: A notable development in Pakistan's legal system was the Sindh
Child Marriage Restraint Act, 2013, which was approved. The Act changed the
previous rule, which permitted girls to get married as young as 16, and fixed the legal
age for marriage at 18 for both girls and boys (Government of Sindh, 2013).
 Penalties: The law imposes penalty on those who support, promote, or participate in
child marriages. The penalties may consist of imprisonment, a fine, or both. A fine of
up to PKR 45,000 and/or a sentence of up to three years in prison may now be
imposed on individuals who assist, conduct, or contract such weddings (Government
of Sindh, 2013).
 Obligations of prominent Authorities: The Act probably outlines explicit obligations
for particular authorities to prevent child marriages. These authorities may include
local government representatives, law enforcement, and religious leaders who
customarily officiate marriages (Government of Sindh, 2013).
 Voidability of Marriage: Child marriages that were contracted illegally may be ruled
void or voidable. Those who are forcibly married off at a young age may have legal
redress if this rule is in place (Government of Sindh, 2013).
Protection and Relief for Victims: The law could include provisions for methods for
reporting abuses, pursuing justice, and safeguarding the safety and welfare of victims of child
marriage (Government of Sindh, 2013). The literature highlights various challenges in
implementing child marriage laws in Pakistan, including lack of awareness, weak
enforcement mechanisms, and social and cultural norms that support the practice (Nasrullah
et al., 2014; Sathar, Wazir, & Sadiq, 2013). Additionally, inadequate coordination between
federal and provincial governments, corruption, and limited resources have been cited as
factors that undermine the effectiveness of these laws (Razi, Zahoor, Anwar, & Jamshed,
2021).

Pervasiveness and concerns of child marriage:

Pervasiveness:

17
Child marriage is a widespread concern in Pakistan, with significant variations across
different regions, provinces, and communities. According to the Pakistan Demographic and
Health Survey (PDHS) 2017-18, 16.3% of women aged 20-24 were married before the age of
18, and 3.9% were married before turning 15 (National Institute of Population Studies,
2019). Proportions of child marriage tend to be enormous in rural regions compared to urban
areas, and poverty and lack of education are significant contributing factors (Nasrullah et al.,
2014; National Institute of Population Studies, 2019). Cultural customs and societal norms
significantly contribute to the continuation of child marriage within specific communities
(Sathar et al., 2013).

1. Concerns:
The aftermaths of child marriage can be stern and long-lasting, disturbing the healthiness,
well-being, and development of the children involved. Some of the key consequences
include:

2. Health risks:
Child marriage has been associated with greater chances of maternal and infant death,
particularly due to early and frequent pregnancies, inadequate prenatal care, and
complications during childbirth (Nour & Nawal M, 2009; Raj, Niranjan Balaiah, Donta
Silverman, & Jay G, 2009).

3. Lower educational attainment:

Child brides have a higher propensity to discontinue their education, resulting in lower
educational attainment and limited opportunities for personal and professional growth
(Nasrullah et al., 2014; Sathar et al., 2013).

4. Intimate partner violence:

Research findings indicate that young girls who enter into marriage at an early age face an
elevated likelihood of encountering intimate partner violence. This includes various forms of
abuse such as physical harm, sexual assault, and emotional mistreatment (Nasrullah et al.,
2014).

5. Mental health consequences:

18
Child marriage can lead to enduring psychological effects, comprising but not limited to
depression, anxiety, and post-traumatic stress disorder (PTSD), that can persist over time,
resulting from the loss of autonomy, isolation, and the burden of early marriage and
motherhood (Santhya et al., 2010).

6. Economic impact:
Child marriage can perpetuate the cycle of poverty, as married girls often have limited access
to income-generating opportunities and are more likely to have larger families, further
straining limited resources (Unicef, 2014).

7. Factors leading to child marriages:

Child marriage is a multifarious concern with innumerable cultural, economic, and social
factors contributing to its persistence. Some key factors that drive child marriage across
different contexts include:

8. Cultural and traditional norms:

In many societies, child marriage is intensely engrained in cultural and traditional norms,
where the practice is considered a social norm or an essential part of preserving family honor
(Unicef, 2014). For example, in some communities, marrying girls at a young age is believed
to protect them from premarital sex and preserve their virginity, thereby upholding the
family's reputation (Parsons et al., 2015).

9. Poverty:
Poverty is a significant aspect that leads to child marriage, as poor families may perceive
marriage as a method to reduce their financial burden or secure their daughter's future
through a perceived stable economic arrangement (Unicef, 2014). In some cases, the bride's
family may receive a dowry or bride price, which can serve as an incentive for early marriage
(Nour & Nawal M, 2009).

10. Lack of education and awareness:

Insufficient educational opportunities and a lack of awareness regarding the adverse
implications of child marriage can both contribute to the continued prevalence of this
practice (Unicef, 2014). Educated girls and their families are more likely to recognize the

19
value of delaying marriage and investing in girls' education and development (Parsons et al.,
2015).

11. Gender inequality and social norms:

Gender inequality and discriminatory social norms that view women as inferior to men or as
commodities can perpetuate child marriage (Unicef, 2014). In societies where women's roles
are limited to being wives and mothers, girls may be pressured to marry early to fulfill these
roles and meet societal expectations (Parsons et al., 2015).

12. Insecurity and conflict:

In contexts of insecurity and conflict, families may see child marriage as a means of
protecting their daughters from violence, sexual assault, or abduction (Unicef, 2014). Forced
displacement and economic instability can also exacerbate the risk of child marriage, as
families struggle to cope with new challenges and uncertainties (Schlecht, Rowley, &
Babirye, 2013). Detailed Analysis of prominent Verdicts regarding Child marriages:

Sindh Child Restraint Marriage Act, 2013 and Principles laid down by Federal Shariat
Court:

In the Shariat Petition No.05-I of 2022, the petitioner asked the court to get involved in
accordance with Article 203-D of the Islamic Republic of Pakistan's 1973 Constitution. The
Sindh Child Marriage Restraint Act of 2013 was questioned during the prayers in light of
Islamic edicts and the Constitution. They also asked for the Act's definition of "child" to be
changed to take into account Muslim puberty signs, sought a reassessment of the Family
Appeal No. 18/2021 and Family Suit No. 2117/2020 court files and proceedings, asked the
court to affirm their marriage under Muslim Family Law, and asked for physical custody of
Respondent No. 2. Some of the pleas addressed personal relief, which the court determined
was beyond of its purview. However, it was necessary to look into the issues raised by the
disputed statute. The Sindh Child Marriages Restraint Act of 2013's Section 2(a), which sets
the minimum legal marriage age at 18, was challenged on the grounds that it violated Islamic
edicts.

Following a consideration of the arguments, sources, and teachings from Islam, the court
concluded that the references were more pertinent to the significance of marriage in Islam

20
than they were to the right marriage age. According to the teachings of the Quran and the
Sunnah, which establish the rights and obligations of a spouse and the husband's duty to
protect and provide for his wife, the court emphasized the significance of marriage in human
society. The court took into account other texts from the Quran and hadith that talk about
situations that hinder marriage, even after a person reaches adulthood. The court also
emphasized differing opinions held by Muslim jurists over whether or not a young girl can
get married. The decision emphasized the importance of establishing a legal minimum age
for girls to receive a basic education, as it is crucial for their intellectual development and
women's empowerment, as well as for a successful marriage, personal development, and
societal advancement. The Hadith, which mandates knowledge acquisition for all Muslims,
male and female, was cited by the court to support the idea of protecting and fostering
intelligence.

Federal Shariat Court held in the Ali Azhar’s case (PLD 2022 FSC 1) and settled down the
principle that the minimum age may be fixed by the government even this such practice is
not only limited to the Pakistan but the other Muslims Countries has enacted the laws for
providing certain age for marriage; ready reference in this regard is provided as follows:
“There are many Islamic countries where such type of law is present wherein a minimum age
for marriage for male and female is fixed, like in Jordan, Malaysia, Egypt and Tunisia, etc.
However, in such countries according to their laws if in a specific or especial case there is an
unavoidable circumstance or situation to solemnize a marriage before the age as set by the
law then the family of that girl and boy must approach a specific authority

made by the government allowing or disallowing such permission.”

2022 Pld 1 Federal-Shariat-Court

Side Appellant: FAROOQ OMAR BHOJA

Side Opponent: FEDERATION OF PAKISTAN through Ministry of Law and Justice of

Pakistan through Secretary, Islamabad.

The argument presented in this legal proceeding is about sections 4, 5, and 6 of the Child
Marriage Restraint Act of 1929 in the context of the Constitution of Pakistan and its Article
203-D. The dispute centers around a conflict with the Islamic law regarding the prohibition

21
of child marriage. The case argues that the aforementioned sections of the Child Marriage
Restraint Act, also known as 'the impugned provisions', conflict with the teachings of Islam.
This Act established by the State sets the minimum age for a girl to get married at 16 years.

While a majority of Muslim jurists believe that the marriage of a minor girl is acceptable
under Islamic law, there are also some who oppose this view. According to the established
principles of Shariah, if an act that is generally permissible, or 'Mobah', turns out to be
harmful to society or any specific segment of it, the State has the authority to prohibit that
act. This prohibition aims to protect society from greater harm. The State can cautiously set
limits on a 'Mobah' act, so long as these limits don't interfere with any other rule defined by
Shariah. The decision to set a minimum age of 16 for girls to marry is one such limitation. In
Islamic law, there's a well-established principle known as 'Sad-uz-Zaraey', based on the
Quran and the teachings of the Prophet Muhammad (Sunnah). According to this principle,
the State has a duty to regulate or limit any action in society that could lead to harmful
consequences, regardless of how minor the action might seem.

By the principle of 'Sad-uz-Zaraey', the impugned provisions do not contradict the Quran or
the Sunnah. If a rule is being exploited or misused, it can be clarified to prevent further
abuse. The impugned provisions do just that. They clearly outline the Shariah law,
minimizing the potential for misuse. They stipulate that a marriage cannot be consummated
until the girl reaches an age of medical maturity, and setting this age at 16 greatly reduces the
chance of breaching this principle. Moreover, setting a legal minimum age of 16 for marriage
can also generally ensure that girls get at least a basic education. Education is equally vital
for everyone, regardless of gender. Islam makes it obligatory for every Muslim to seek
education.

For an individual, especially for a girl, education falls under the concept of Hifz-ul-Aql,
meaning the protection and promotion of intellect, which is one of the main objectives of
Shariah. For a marriage to be healthy, not only are physical health and economic stability
important, but mental health and intellectual growth are equally crucial, and these are
achievable through education. In accordance with Islamic teachings, providing the best
possible education to a girl or a daughter is one of the greatest deeds a person can do, which
guarantees entry to 'Jannah' (heaven). Therefore, the petition challenging sections 4, 5 & 6 of

22
the Child Marriage Restraint Act of 1929 was found to be misguided and was rejected at the
outset.

Analysis of the 2022 PLD 1 FEDERAL-SHARIAT-COURT:

The case of Farooq Omar Bhoja versus the Federation of Pakistan was decided by the
Federal Shariat Court of Pakistan in its ruling, 2022 PLD 1. Sections 4, 5, and 6 of the Child
Marriage Restraint Act of 1929 were contested by the appellant on the basis that they were
against Islamic law and principles. These provisions establish a minimum marriage age of 16
for girls. A large number of Muslim jurists who were consulted by the court agreed that a
minor girl's Nikah (Islamic marriage contract) was legal. But there were also many who
disagreed. The court referred to the concept of "Mobah," which refers to behaviors that are
legal under Islamic law but may be outlawed by the state if they appear to be damaging to
society as a whole or to a particular group within it.

According to the Court, imposing a minimum age requirement for females to marry is a
protective measure that does not conflict with any other Shariah law tenets. Additionally, it
referred to the well-known Islamic principle of "Sad-uz-Zaraey," which obliges the State to
restrict or thwart any action that could have negative effects on society, regardless of how
small. The court determined that the disputed passages were not in conflict with the Quran
and Sunnah based on this approach. Instead, they ensured that a marriage should not be
performed before a girl has attained the age of medical maturity and protected the law or
principle of Shariah from misuse or abuse. In addition, the Court emphasized the significance
of education, which Islam prescribes for all Muslims, regardless of gender. Girls' access to at
least a fundamental education is facilitated by establishing a minimum marriage age. This
was brought into line with the Islamic notion of "Hifz-ul-Aql," which relates to the
preservation and advancement of knowledge—one of Shariah's main objectives. The Court
held that in addition to physical wellbeing and financial security, a successful marriage also
requires mental wellbeing and intellectual growth, both of which can be acquired through
education. It made reference to Islamic beliefs that promote giving a child or daughter a good
education as one of the best deeds ensuring 'Jannah' (paradise).

23
The Shariat petition contesting Sections 4, 5, and 6 of the Child Marriage Restraint Act, 1929
was thus rejected by the court as being misconceived.

Analysis of 2021 PLD 783 LAHORE-HIGH-COURTLAHORE:

An important interpretation of Pakistan's legislation governing child marriages is provided by

the Lahore High Court's judgement, which is cited in the 2021 PLD 783 Lahore High Court
Lahore. It relates to Section 20 as well as Sections 2(a), 9, and 10 of the Family Courts Act
(XXXV of 1964), which together serve to restrict child marriages. The Child Marriage
Restraint Act of 1929 (the "Act 1929") places restrictions on child weddings, and the court in
this judgement gives a comprehensive interpretation of the parties that can be held guilty or
can be designated as offenders in the execution of child marriages.

The jury divided the perpetrators into three different categories:

 Males aged over eighteen who engage in child marriage: Males over the age of
eighteen who marry a kid are directly responsible in this group since they made the
decision to wed a child. The court emphasizes the importance of individual
accountability in such unlawful activities by designating them as offenders.
 Persons who facilitate, conduct, or direct such marriages: This category includes
anyone who actively participates in setting up, managing, or overseeing a child
marriage. It may include of a variety of people, such as clergymen, wedding
coordinators, or even close friends or family. By including this classification, the
ruling highlights and denounces the larger social institutions and individuals that
support child marriages.
 Those who have custody of the minor who permit the marriage or fail to prevent it:
Any person in responsibility of the minor, such as parents or guardians, falls under
this broad group, regardless of whether they are carrying out their duties legally or
illegally. These people may be held accountable if they support the marriage, allow it
to happen, or do nothing to stop it. This category makes it quite evident that people in
positions of caregiving have a duty to safeguard children from such wrongdoing.

The Lahore High Court improves the legal frameworks to prevent child marriages by
expanding culpability beyond the immediate partners by providing this thorough breakdown

24
of who might be regarded as offenders under the Act 1929. It establishes a precedent for
holding all parties responsible for their part in such an act and strengthens the laws against
underage marriages. The court has shown its determination to respect the rules against child
marriages and its willingness to take action against any type of child exploitation by
acknowledging and allowing the constitutional petition. The decision upholds the court's
position on the matter and provides strong legal support for measures taken to prevent child
marriages.

Whether the Sindh Child restraint marriage Act, 2013 declare the child
marriage as invalid and hold a minor liable for punishment:

Provisions of SINDH ACT NO.XV OF 2014 do not render the marriage invalid though it
makes punishable a marriage made in violation of its provisions. Whereas, Adult husband
contracting such marriage or persons solemnizing same may however be held criminally
liable-Criminal Procedure Code of 1898), S.491. It is pertinent to mention here that the Said
Act, however, did not hold a minor (who had contacted the marriage) liable for punishment.

Citation Name : 1970 PLD 323 SUPREMECOURT

Side Appellant: MST. BAKHSHI

Side Opponent : BASHIR AHMAD

Child marriage restraint Act 1929 ----Fact h girl below age of 16 years marrying in
violation of Act-Does not make marriage itself invalid-Adult husband contracting such
marriage or persons solemnizing same may however be held criminally liable-Criminal
Procedure Code of 1898), S.491.
Analysis of 1970 PLD 323:
The applicability of the Child Marriage Restraint Act of 1929 is the subject of the cited case,
MST. BAKHSHI v. BASHIR AHMAD (1970 PLD 323).

In this particular case, a girl under the age of 16 was married against the law. Whether such a
marriage is declared null under the Act is the key topic addressed in this ruling. The Act,

25
according to the court, does not render the marriage null and void. Even if the Act was
broken, the marriage is nonetheless regarded as valid. However, any person who solemnized
the marriage or the adult husband who entered into such a marriage may be held legally
accountable for their actions. Those accountable for arranging or executing the marriage may
face criminal charges, even though the marriage is not void.

The Criminal Procedure Code of 1898's Section 491 was cited by the court as outlining
maintenance and custody obligations for a wife who is a minor. In such situations, the
preservation of the rights and interests of underage wives is emphasized in this section.

Citation Name : 1962 PLD 442 KARACHIHIGH-COURT-SINDH

Side Appellant : MUSHTAQ AHMAD

Side Opponent : MIRZA MUHAMMAD AMIN AND ANOTHER

Child marriage restraint Act 1929 --

Makes marriage with Child punishable-Act, however, does not render such marriage
invalid.

Analysis of 1962 PLD 442:

The Child Marriage Restraint Act of 1929 was the subject of the argument in Mushtaq
Ahmad v. Mirza Muhammad Amin and Another (1962 PLD 442 Karachi High Court Sindh).
Mushtaq Ahmad, the appellant, contested the Act on the argument that it imposed fines for
marrying a child but does not invalidate such marriages. The court determined that while the
Child Marriage Restraint Act imposes penalties for marrying a child, it does not invalidate
such marriages after taking into account the arguments presented. In a nutshell, even while
the Act forbids them and makes them illegal, it does not immediately void child marriages.

This decision implies that while the law imposes sanctions to deter child marriages because
of the harm and social repercussions they have, it does not cancel or declare such marriages

26
void. This interpretation emphasizes the distinction between the criminal and civil
repercussions of child marriages, highlighting the fact that the Act is primarily concerned
with punishing offenders rather than invalidating the marital connection itself.

Citation Name : 2018 PLD 385 ISLAMABAD

Side Appellant : MUHAMMAD SAFEER

Side Opponent : ADDITIONAL SESSIONS JUDGE (WEST) ISLAMABAD

Ss. 4, 5 & 6---Child marriage ---Minor bride/bridegroom---Child marriage restraint Act,

1929 provided punishment for three categories i.e. the contracting party, promoter of the
(Child ) marriage and guardians/parents of the Child ---Said Act, however , did not hold a
minor (who had contacted the marriage ) liable for punishment.

Analysis of 2018 PLD 385:

The case revolves around the interpretation of Sections 4, 5, and 6 of the Child Marriage
Restraint Act, 1929, specifically in relation to minor brides or bridegrooms. It has been
determined that three categories of offenders are under the purview of the Child Marriage
Restraint Act, 1929, and are subject to penalty. The contractual party, or those who enter into
a child marriage, is included in the first category. The second category consists of those who
enable or support child marriages, including those who do both. The child's parents or
guardians, who may also be held responsible for their role in the child marriage, make up the
third category. It is crucial to remember that the Act does not penalize minors who have
entered into marriage. In other words, the Act does not hold the young bride or groom
responsible for any penalties imposed by its rules.

Whether the Sindh Child restraint marriage Act, 2013 declare the performance of
conjugal rights during such child marriage as illegal and unlawful:

Provisions of SINDH ACT NO.XV OF 2014 do not render the performance of conjugal
rights of the spouses are unlawful and illegal during solemnization of the Child marriage.

27
Therefore, such sexual intercourse could be treated as unlawful and did not attract the
provisions of the Section 375 PPC for initiating the proceedings against the perpetrator.

Citation Name : 2013 PLD 243 LAHORE-HIGH-

COURT-LAHORE

Side Appellant : ALLAH NAWAZ

Side Opponent : STATION HOUSE OFFICER,

POLICE STATION MAHMOOD KOT DISTRICT,

MUZAFFARGARH

S. 375---Child marriage restraint Act (XIX of

1929), Ss.2(a) & (b)---Rape---Scope---marriage of Muslim girl below sixteen years of age,
who had otherwise attained puberty and consented to the marriage --Legality---
Performance of conjugal rights by the spouses under such a marriage could not be termed
as "unlawful sexual intercourse" so as to attract S.375, P.P.C. in order to initiate proceedings
against them.

Analysis of 2013 PLD 243:

A Muslim girl under the age of sixteen who had reached puberty and given her agreement to
the marriage is the subject of the case, which concerns a challenge to the implementation of
Section 375 of the PPC. The court assessed whether engaging in "unlawful sexual
intercourse" in violation of Section 375 could be justified as exercising the couples' conjugal
rights in such a marriage.

The Child Marriage Restraint Act (XIX of 1929), notably Sections 2(a) and (b), which define
a "child" and make child marriages illegal, was examined by the court. In connection to the
crime of rape under Section 375 of the PPC, the court assessed the reach of the Act. The
court came to the conclusion that the performance of conjugal rights by the spouses cannot
be classified as "unlawful sexual intercourse" under Section 375 of the PPC when a Muslim
girl under the age of sixteen who has reached puberty and voluntarily consented to the
marriage enters into a marital relationship. The court argued that because the marriage was

28
recognized as legal under the relevant personal law, sexual interactions between the spouses
could not be classified as a rape offence.

Power of Court to issue injunction against a child Marriage:

The Court under Section 7 of SINDH ACT NO.XV OF 2014 has power to issue injunction
on information in the form of application that a child marriage prohibiting child marriage is
going to be happen or about to be solemnized contravention of this Act, on this Court issue
an injunction prohibiting such child marriage.

29
CHAPTER 3.

CULTURAL INFLUENCES ON MARRIAGE AND DIVORCE

LAWS
Islam is a state religion of the Islamic Republic of Pakistan, and no law is made inconsistent
with the rules of Sharia. In Pakistan, people have limited sovereign power and can delegate
authorities within the limits of Quran and Sunnah. Hence, Pakistan can be considered as a
religious state. The guiding principles and exercising powers under the constitution and the
laws by the state functionaries while interpreting the Constitution and laws of the country are
needed to be in line with the clear injunctions of Sharia. The Constitution of the Islamic
Republic of Pakistan guarantees that all existing laws in Pakistan must be brought in
conformity with the injunctions of Sharia and any law, that is repugnant to the clear
injunctions of Sharia, shall be made in future. It sets the pattern of the framing of Muslim
family laws in Pakistan. The family laws in Pakistan are driven from the sources of Sharia,
mainly from the Holy Quran and Sunnah. Marriage is a social contract between a husband
and wife. It must necessarily be done with mutual consent of both the husband and wife and
preferably be an open declaration, rather a secret relation. The Holy Quran declares those
marriages void which solemnised without free will and free consent:

“O you who have believed, it is not lawful for you to inherit women by compulsion. And do
not make difficulties for them in order to take [back] part of what you gave them unless they
commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps
you dislike a thing and Allah makes therein much good.”4
The practices of Sunnah show that the Prophet Muhammad (peace be upon him) never liked
force marriages during his life. It was reported to him by one of his companions, Ibn Abbas,
that a woman was forcibly married by her father without her consent. The Prophet (peace be
upon him) gave that woman choice between accepting or invalidating that marriage. Actually
that woman accepted that marriage but wanted to learn the rights of women in situation of
forced marriages. Pakistan has been criminalized forced marriages in 2011and whoever
violates of penal sections will face rigorous punishment and heavy amount of fine. The

30
Muslim marriage in Pakistan is mandatory to be solemnized under Muslim Law and
registered under Muslim Family Laws Ordinance, 1961:

“Every marriage solemnized under Muslim Law shall be registered in accordance with the
provisions of this Ordinance. For the purpose of registration of marriages under this
Ordinance, the Union Council shall grant licenses to one or more persons, to be called
Nikah Registrars. Every marriage not solemnized by the Nikah Registrar shall, for the
purpose of registration under this Ordinance, be reported to him by the person who has
solemnized such marriage.”
The legal structure of Pakistan and Sharia both discourage forced marriage. However, forced
marriages are practiced in Pakistan and it amounts to the most widespread crime against
women in Pakistan. According to the Forced Marriage Unit (FMU), Pakistan is among top
five countries of the world that practice forced marriages. Forced marriages have replaced
rape at the top of the most common crimes against women. The data published on Crime
Stop Community’s website reveals that a high number of complaints against forced
marriages are received from all areas of Pakistan. Many of the complaints regarding forced
marriage never gat registered due to social and cultural norms i.e. family honor and respect
and if a girl seeks remedy against forced marriage the whole family condemns her and she
gets punished in the form of social isolation and murder as well. There are chances that girl
could be murdered by male member of the family because they never let girls go against the
social and cultural norms of the family and society.

The Muslim Personal Law discourages child marriages and it is illegal to marry a girl being
under the age of sixteen years. There is a punishment for contracting and solemnizing such
type of marriages and such persons are held criminally liable. It is fact that the child marriage
as well as forced marriages is distressingly common in Pakistan. There are cases, reported in
Pakistan, in the form of Watta Satta marriages, where minor girls are married to older men as
a form of return to each other. There are various reported cases from Mirpur (Azad Jammu
Kashmir) about forced marriages with British nationals registered with the forced marriage
Unit of British Home Office in London.

31
Factors Responsible for Forced Marriages in Pakistan

Forced marriage is a tool, often used to control female sexuality and put a restriction on the
autonomy of women in male dominated and patriarchal societies. Statistics reveals that
majority of the forced marriage cases prevail in Muslim communities and among Muslims. it
means that the problem exists with this mind set although Islam categorically condemn and
declared forced marriages ab initio void. A few stances of forced marriages are being
presented from Pakistani society. Primarily, preserving family honor creates a strong family
bonds within family. The other reason is Poverty people do not have money to bear
matrimonial expenditures as well as bridal’s dowry so to escape from financial liabilities
some parents or bride’s guardian compromise female’s life with money. The other reason is
lack of education and awareness, parents and family members fail to realize the importance
of marriage normally unable to rationalize that marriage is a matter of choice and mutual
compatibility between spouses are more important than any other materialistic notion.
Parents or other guardian still struck with the old perspective that like an animal the only
purpose of marriage is to produce children and increase the population all other important
factors they do not take into consideration.

Family customs and tradition play very important role in forced marriages. A caste or creed
tries to solemnize marriage in the same caste in Pakistan. If they marry her daughter or sister
out of the family the other members of the family criticized this practice and some-time
socially boycott the family who marry her daughter or sister out of the family. This is a
matter of honor for the families. Some families indulged in superiority complex and they
think the other family is not appropriate to their social status or position. Keeping family
property (Land) in the same family is another factor. Islam provides woman right to inherit
property from his father so in feudal families they prefer to cousin marriages or marriage in
the close family member, in this way the property will remain in the family custody and will
not alienate out of the family, here a piece of land is more important than a human’s life.
They sacrificed girl’s wishes and dreams just for to retain the property. The most common
reason of forced marriage in rural or tribal areas of Pakistan is revenge they take revenge in
the form of getting the female of the opponent family, according to them in this way the
opponent will never raise his head in front of them. Marriage between opponent families

32
minimizes rivalries between two opponent families. Vini and Swara are the examples of this
type of marriages in Pakistan.

There is a common misconception among parents in Pakistan about marrying children

without their consent is permissible under Sharia, mainly using the parental authority as
guardians and custodians. Various narratives exist among different sections of Pakistani
society that which defend forced marriages based on their own interpretations of the rules
from the Holy Quran and Sunnah. are deducted by those made among rigid and conservative
section of the Pakistani religious. This kind of beliefs arise due to intermingling the social
and cultural practices with Sharia values. This confusion results in favouring the conducting
of forced marriages of their children and building a public opinion, considering forced
marriages as purely Islamic concept and allowing children marrying with their own choice as
Western concept. There are practices of another form of forced marriage by marrying
females Quran. Such type of practices prevailsamong landlords, although this practice is used
as a tactic by male members of families to grab the share of female members of family.

Moreover, the Human Rights Organizations consider family laws of Pakistan as

discriminatory against women. The narrow and conservative interpretations of both Sharia
and national laws of Pakistan relating women add more sufferings to women. The various
interpretation of both the laws limit remedies available to women relating divorce and
annulment in cases of forced marriage. Furthermore, women in Pakistan are largely lacking
the awareness and have a very limited capacity to their rights, and often compromise their
rights for the sake of their life, and social and cultural norms.

Sharia Stance on Forced Marriages

Sharia is a divine religion which is comprised of teachings and injunctions of Allah

Almighty. It has the peculiar characteristic of dealing with all the spheres of life of a human
being. It left no stone unturned. In Sharia marriage is a social as well as a legal contract
between a man and a woman. Marriage is a recognized union of a man and a woman. Muslim
man and a woman cannot live together without contract of marriage due to social pressure
and the stigma to illegitimacy attached with it. In Sharia the word of Nikah is representing
the English word marriage. In Sharia Nikah is a tool or method of legalizing the cohabitation

33
between a man and a woman and legalizing the children. It permits the sexual relationship
between a groom and a bride. Sharia has a clear stance on the crime or offence of zina or
adultery or fornication. Therefore, Sharia protects the progeny of Muslims through
establishing the method of Nikah or marriage. Marriage becomes obligatory (wajib) for those
who can be involved in unlawful or illegal sexual relationships. Nikah is Sunnah
Mua’kkadah, therefore it an act of ibadah for Muslims.

The primary objects of contract of marriage in Sharia are legalization of sexual relationship
between spouses, legitimation of children, protection and preservation of human race,
regulation of social norms, keeping society intact. Essentials of a valid contract of marriage
in Sharia are: offer (Ijab), Acceptance (Qabool), offer and acceptance must be in the same
sitting, freedom of persons entering into a contract of marriage or wedlock, consideration
(dower or Mahar), capacity of parties entering into a contract of marriage, persons of
opposite sex, presence of witnesses and free consent. Free consent means the consent which
is not influenced by coercion, undue influence, fraud, misrepresentation or mistake. If
consent of the contracting party is obtained by coercion, undue influence, fraud,
misrepresentation or mistake the contract would be invalid or void having no legal
consequences. Sharia advocates that marriage must take place with the free consent of both
the persons and the presence of the elders of both the families is required though not
obligatory. Verses of the Holy Quran and sayings of the Holy Prophet (PBUH) made it clear
that not only the consent but free consent of both the persons is pre-requisite in order to make
the contract of marriage valid. Allah says in Holy Quran:

"O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat
them with harshness, that ye may take away part of the dower [money given by the husband
to the wife for the marriage contract] ye have given them, except where they have been guilty
of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye
take a dislike to them it may be that ye dislike a thing, and God brings about through it a
great deal of good”.
Narrated Abdullah ibn Abbas comments on the above verse of the Holy Quran:
“It is not lawful for you forcibly to inherit the woman (of your deceased kinsmen), nor (that)
ye should put constraint upon them. When a man died, his relatives had more right to his

34
wife then her own guardian. If any one of them wanted to marry her, he did so; or they
married her (to some other person), and if they did not want to marry her, they did so. So,
this verse was revealed about the matter”.
Sharia prohibits the marriage by force. The free consent of both groom and bride is essential
and of vital importance. On the account of this prohibition if the marriage of a minor takes
place with the consent of his guardian or legal representative the minor has the right of
puberty (haq e balooghat). Similarly, the girl cannot be forced to get marry against her will
or consent. It is reported in Sahee Bukhari that the Holy Prophet (PBUH) said:

“The widow and the divorced woman shall not be married until her order is obtained, and
the virgin girl shall not be married until her permission is obtained. When a man gives his
daughter in marriage and she dislikes it, the marriage shall be repudiated”.
It is reported in Sunnan Abu Dawood on the authority of Abu Hurayrah and Abdullah ibn
Umer that the Prophet (PBUH) said that:

“An orphan virgin girl should be consulted about herself; if she says nothing that indicates
her permission, but if she refuses, the authority of the guardian cannot be exercised against
her will”
It can be concluded from above discussion that a forced marriage has not been permitted by
Sharia. It cannot be attributed to Sharia. It is a cultural practice which clear cut violates the
right of a woman. Such an act is against the injunctions of Sharia.

Legal Response on Forced Marriages in Pakistan

The legal structure of Pakistan as well as the courts in Pakistan protect the rights of marriage
and protects its citizens from forced marriages. The constitution of Pakistan provides its
citizens protection of the right of marriage. Forced marriage is a clear violation of the
fundamental rights of the citizens of Pakistan protected by the Constitution of the Islamic
Republic of Pakistan. The Prevention of Anti-Women

Practices Bill and the Criminal Law Bill, passed by the National Assembly of Pakistan in
2011, has made much required changes in the Pakistan Penal Code and the Code of Criminal
Procedure. It has become illegal to “compel or arrange or facilitate” forced marriage of a
woman and is punishable under Penal Law. Section 310A of the Pakistan Penal Code

35
provides protection from forced marriage and violating the rights of marriage of women.
According to this section:

“Punishment for giving a female in marriage or otherwise in badla-e-sulh, wanni or

sawara.- Whoever gives a female in marriage or otherwise compels her to enter into
marriage, as badal-e-sulh, wanni, or sawara or any other custom or practice under any
name, in consideration of settling a civil dispute or a criminal liability shall be punished with
imprisonment of description for a term which may be no less than three years and shall also
be liable to fine of 500,000 Rupees”.
It is strictly prohibited under Pakistan Penal Code to compel a woman for entering forced
marriage. According to section 498B:

“Whoever coerces or in any manner whatsoever compels a woman to enter into marriage
shall be punished with imprisonment of description for a term, which may not be less than
three years and shall also be liable to fine of 500,000 Rupees.”
The legal framework of Pakistan has previously been dealing the matters relating marriage
under Muslim family laws with lesser punishments on violating the rules relating family
matters. Forced marriages are now being treated as criminal act under the Pakistan Penal
Code with higher punishments that provide better protection to women from forced
marriages. Moreover, the Sections 498B and 310A are not of restrictive nature, so any person
involved in facilitating or arranging forced marriages is considered as criminally liable and
punishable under criminal law. These two sections of the Pakistan Penal Code have vast
applicability to all forms of marriages amounting to forced marriages including child
marriages, marriages for purposes of land, for settlement of disputes, for purposes of forced
conversion etc. However, Pakistan Penal Code remains silent on the validity of such type of
forced marriage, as it provides punishment only for those involved in conducting and
facilitating forced marriages. It does not declare the marriage of such nature as void or
voidable. It also lacks protection of such woman forcibly married in terms of monetary
compensation and maintenance depending on the period of marriage. However, Sharia plays
its role in such situation and provides option to women to go for 'khula' to invalidate such
type of marriages. The criminal justice system of Pakistan strictly prohibits abduction for the
purpose of conducting marriage, the courts are also empowered to issue search warrants to

36
save women from abduction for the purpose of forced marriages, and this act is explicitly
criminalized in Pakistan:

“Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing
it to be likely that she will be compelled, to marry any person against her will, or in order
that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life,
and shall also be liable to fine.”
The judicial system of Pakistan is very keen to discourage forced marriages. It considers the
practicing of forced marriages as a harmful traditional practice that is not justifiable in the
name of social, cultural or religious norms. A full bench of Lahore High Court, in Hafiz
Abdul Waheed v Ms Asma Jahangir case, acknowledged the right of marriage of a Sui Juris
girl at her own choice where her own father was complainant. The court, instead of sending
her to her father, allowed her to go and live with her husband whom she got married at her
own choice. It is observed inHumaira Mehmood vs SHO North Cant Lahore case:

“In matters of marriage a woman was given equal right [by Islam] to choose her life
partner …Unfortunately, in our practical lives, we are influenced by a host of other
prejudices bequeathed by history, tradition and feudalism … It is that culture that needs to
be tamed by law and an objective understanding of the Islamic values … Male chauvinism,
and feudal bias and compulsions of a conceited ego should not be confused with Islamic
values. An enlightened approach is called for.”
The court system of Pakistan provides a legal remedy in the form of the writ of habeas
corpus. This type of petition is filed either by a husband who is already married a woman
against parents of that woman confining her in their custody, and vice versa by parents
against the husband. A The international press has reported another famous case from
Pakistan in this regard:

“Shehnaz, 25, did not want to marry cousin Tajammul, a man she knew and did not like, but
she was forced to marry her cousin. She decided to seek help from the court and finally
wrote a letter to the Lahore High Court. [S]he wrote: “I have been sold to a man I never
wanted to live with. I am a very unlucky woman who has been thrown to the wolves. My
marriage was cruel and arbitrary. Judge Khawaja Sharif agreed, and ordered armed police

37
to take Shehnaz from her family home and place her in a refuge for women. “Marriage
cannot be imposed on an adult woman against her free will” he said.”
The Federal Shariat Court considers a marriage as valid that has been conducted in the
absence or without permission of the father or Guardian (Wali). The court held in another
case:

“where Abductee happens to be Sui Juris no doubt it is a case of further inquiry to see
whether she was forced to marriage, yet it is the duty of the court the circumstances under
which marriage is performed.”
Pakistan is among top five countries in the world where women are forced to get married
against their consent due to various social, cultural and religious factors. Pakistan being a
Muslim country adopts Sharia as a role model for the strengthening the family system and
framing family laws in Pakistan. Although, legal structure of Pakistan as well as Sharia gives
full rights to women to marry as per their own choice, yet various social and cultural norms
and of a typical Eastern society put restrictions on both parents and children. Consequently,
forced marriages take place under various social and cultural pressures. Moreover, various
false interpretations of Sharia and mixing religion with social values urge parents decide
against the will of their parents and they tend to arrange forced marriages of their children.
Sharia never encourages forced marriages, rather provides option to the victims of such
forced marriages in the form of validating or invalidating such marriages and seek remedy in
the form of Khula. The Holy Quran and Sunnah clearly dislike this practice and limit the role
of guardian by providing children the right of choice and free consent in matters relating their
own marriages. The court system of Pakistan also discourages forced marriages and criminal
responsibilities are imposed, on those conducting or facilitating forced marriages, in the form
of punishments and fines under Pakistan Penal Code. The legislative and judicial structure of
Pakistan provide rights to women in terms of protecting them from forced marriage.
However, these laws lack proper implementation and non-willingness of the male dominated
society makes it hard for women to seek protection from forced marriage. The lack of
awareness to their rights, procedural limitations, social pressure and cultural norms restrict
women from seeking remedies for being victims of forced marriages.

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CHAPTER 5

CONCLUSION
Even while these studies seek to separate correlation from causation, they do not provide
directly welfare-relevant metrics. For instance, even if we isolate factors that create more or
less divorce, these insights would only yield insight to maximizing social welfare if coupled
with an understanding of whether we currently have an efficient number of divorces, too
many, or too few. To understand this point, consider an analogy to the labor market. The U.S.
labor market, like its marriage markets, differs from Europe in having substantially greater
“churn”; in any given month in the U.S., workers are more likely to be fired, and those
without a match are more likely to be hired, than are their European counterparts. There is an
emerging consensus that restrictions on churning in European labor markets yields inefficient
labor markets, with “too few” job separations. We do not mean to infer by analogy that
Europe is afflicted with too few divorces. Rather, we highlight this parallel because it makes
the case that a combination of empirical work, attention to causal inference, and general
equilibrium theorizing are required to assess implications for aggregate well-being changes
in marriage markets. With the economics of the family now celebrating the 25th birthday of
its foundational text (Becker, 1981) we are confident that the next 25 years will provide
progress toward this goal.

The theory of the family also suggests that marriage is most likely to occur when the
potential gains from marriage are large. Individuals with high earning potential have more to
gain from domestic arrangements that allow them to specialize in market production; those
with a “love of fun” have more to gain from shared leisure and consumption; and those with
good health have more to gain due to the greater potential longevity of their marriage.

Despite legislative restrictions, child marriage in Pakistan is still a major concern due to its
high incidence. The 2013 Sindh Child Restraint Marriage Act is a significant step towards
resolving this issue and defending the rights of children in the province of Sindh. The
minimum age for marriage was raised to 18 for both boys and girls as part of this Act's
important anti-child marriage provisions. Understanding the circumstances of child marriage
is crucially influenced by Islamic values. Islam does not specify a minimum age for
39
marriage, but it does stress the significance of mutual agreement and maturity for doing so.
Islamic teachings advocate safeguarding people's wellbeing and intellectual growth,
especially during the delicate adolescent years.

After reviewing the most notable rulings on child marriages, it is clear that Pakistani courts
have struggled with the complicated problems of child marriage and its conformity to Islamic
law and constitutional laws. With a focus on the rights and responsibilities of spouses as well
as the relevance of preserving and advancing the welfare of those involved in marriages, the
courts have acknowledged the significance of marriage in Islam and its function in society. A
minimum age restriction has also been accepted as being necessary to protect minors from
harm, guarantee females' access to education, and provide them with possibilities for growth.

The Sindh Child Marriage Restraint Act of 2013 has been the subject of legal scrutiny
regarding the constitutionality of the minimum marriage age imposed by the Act and its
adherence to Islamic tenets. Despite legal challenges to the Act, the courts have upheld the
minimum age requirement, highlighting the State's power to control certain behaviors in
order to protect the public and promote social welfare. The concept of "Sad-uz-Zaraey,"
which enables the State to impose restrictions on actions that can have unfavorable effects
even though they are legal under Islamic law, has been underlined by the Federal Shariat
Court in particular. The Court has acknowledged that establishing a minimum marriage age
is a protective measure that is consistent with Shariah's goals, particularly the encouragement
of education and intellectual growth.

Recommendations and suggestions

Thus, we should expect that the wealthy, healthy, and happy are more likely to marry.
Indeed, even as surveys show that married people are happier than those who are not
married, our analysis of self-reported happiness and marital histories in the British
Household Panel Survey reveals that singles who are the happiest are also the most likely to
marry in the future. If we follow those who were single in 1996 through time, we find that
those who married by 2004 experienced gains in happiness similar to gains experienced by
those who didn’t marry. Similarly, Gardner and Oswald (2006) find that while people are less
happy the year that they separate, a year after the divorce they are happier than they were

40
while married. Ultimately, purely observational studies cannot convincingly establish
whether people are better or worse off as a result of marriage or divorce. The problem is that
a number of factors linking wellbeing and marital status are unobservable to the researcher.
One response is to seek natural experiments that may lead to a sort of random variation
across marital status. A small number of quite promising studies have taken this tack and
found quite surprising results. For instance, an earlier literature had shown that the economic
status of divorced women was lower than that for married women, a fact that had led to
concern that divorce impoverishes women (rather than a concern that low income drives
divorce).

41
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