Report by globalnan.com
Introduction
Child marriage, defined as a formal union involving at least one person below the legal age of adulthood, has historically been a serious social issue, especially in South Asia. Recognising the deep-rooted implications of such practices on individuals and society, particularly on girls, the Government of British India introduced the Child Marriage Restraint Act in 1929. Commonly referred to as the “Sarda Act” after its proponent Har Bilas Sarda, the law was a significant early attempt to legislate against the social evil of underage marriages. The Act aimed to discourage and eventually eliminate child marriage through legal penalties and preventive provisions.
The version reviewed here reflects the statute as it stands applicable in Pakistan, including amendments made over the years through various ordinances and legal reforms. This detailed summary explores the key definitions, penalties, procedural aspects, and the broader social and legal objectives of the Act.
Structure and Scope of the Act
1. Title, Extent, and Commencement
- The official name of the legislation is The Child Marriage Restraint Act, 1929.
- It extends across the entire territory of Pakistan and applies to all Pakistani citizens regardless of their location.
- The Act came into force on April 1, 1930.
2. Key Definitions
Understanding the Act requires clarity on the terminology used:
- Child: A male under the age of 18 years or a female under the age of 16 years.
- Child Marriage: A marriage where one or both of the contracting parties is a child.
- Contracting Party: Either of the individuals whose marriage is or is about to be solemnised.
- Minor: A person under the age of 18, irrespective of gender.
- Union Council: The body designated under local government law to oversee administrative matters at the grassroots level.
3. Penal Provisions and Legal Liabilities
A central feature of the Act is the imposition of punishments on those involved in conducting or facilitating child marriages.
Section 4: Penalty for Male Adults Marrying a Child
- Any male adult (18 years or older) who marries a female underage (i.e., under 16) can be punished with:
- Up to one month of simple imprisonment, or
- A fine up to 1,000 rupees, or both.
Section 5: Punishment for Performing a Child Marriage
- Individuals performing, conducting, or directing such marriages are also liable for:
- One-month imprisonment,
- A fine up to 1,000 rupees, or both.
- However, they may escape liability if they can convincingly demonstrate they believed, with reason, that the individuals involved were of legal age.
Section 6: Penalties for Guardians or Parents
- Parents, guardians, or anyone else in charge of the minor who:
- Actively promotes,
- Permits, or
- Negligently fails to prevent a child marriage
- are liable for one month’s imprisonment or a fine, or both.
- Notably, women are exempt from imprisonment under this section.
- There’s a presumption of negligence against guardians unless proven otherwise when a child marriage occurs.
4. Legal Exceptions and Procedural Safeguards
Section 7: No Imprisonment in Default of Fine
- If a person is fined under the Act and fails to pay, they cannot be jailed as a consequence of non-payment—this serves as a safeguard against disproportionate punishment.
Section 8: Jurisdiction
- Only a Magistrate of the First Class is empowered to try offences under this Act, ensuring that relatively senior judicial officers handle these sensitive cases.
Section 9: Conditions for Court Proceedings
- Courts can only take up cases under this Act if:
- A complaint is made by the Union Council or another authority specified by the provincial government (if no Union Council exists in the area).
- Such complaints must be filed within one year of the alleged offence.
Section 10: Preliminary Inquiries
- The Magistrate must undertake or order a preliminary inquiry under Section 202 of the Code of Criminal Procedure before proceeding with a case.
- If the complaint appears unfounded, it may be dismissed under Section 203 of the same Code.
5. Preventive and Injunctive Powers
Section 12: Injunctions Against Child Marriage
This provision empowers the court to proactively stop impending child marriages:
- A court, on its own or upon receiving information (including complaints), may issue an injunction against persons involved in arranging a child marriage.
- The injunction targets individuals mentioned in Sections 4, 5, and 6.
- Before issuing such an injunction:
- The court must notify the person(s) involved.
- An opportunity must be provided for them to present their side.
Additional provisions include:
- Courts can rescind or modify injunctions based on new evidence or applications by aggrieved persons.
- Applications for altering or cancelling injunctions are to be dealt with promptly.
- Disobeying a legal injunction is a serious offence, punishable by:
- Up to three months’ imprisonment, or
- A fine up to 1,000 rupees, or both.
- Again, women are not subject to imprisonment under this provision.
6. Historical and Legal Context
The Child Marriage Restraint Act was the first law passed in the Indian subcontinent specifically addressing child marriage. While the original Act set minimum ages for marriage (14 for girls, 18 for boys), these thresholds have since been revised. In the context of Pakistan, although amendments have been made to extend applicability and increase clarity, the law still faces criticism for its relatively lenient punishments and enforcement gaps.
The age definitions, for example, are not aligned with international conventions like the Convention on the Rights of the Child, which recognises 18 as the minimum age for both genders. Moreover, the Act is often supplemented or overridden by personal laws in Pakistan, such as Islamic family laws, leading to legal ambiguity.
7. Criticisms and Contemporary Relevance
Although progressive for its time, the Act now faces scrutiny on several grounds:
- Inadequate Age Thresholds: A female is considered a child only if under 16, whereas many child rights advocates argue for a uniform age of 18 for both genders.
- Mild Penalties: The maximum imprisonment term is only one month for most violations, which does not serve as a strong deterrent.
- Gender Bias: Women cannot be imprisoned under this law, even if complicit, which, while protective in intention, might allow certain facilitators of child marriage to evade justice.
- Delayed Justice: The requirement that complaints be made within one year may obstruct justice in cases where victims come forward later due to fear, social stigma, or coercion.
- Limited Jurisdiction: Only the Union Council or designated authorities can file complaints, making it difficult for individuals (especially victims) to initiate legal action independently.
Despite these limitations, the Act plays a crucial role in offering a legal framework to combat child marriage. It serves as the foundation upon which more robust laws can be developed.
Conclusion
The Child Marriage Restraint Act, 1929, represents a foundational legal effort to combat the social evil of child marriage in the subcontinent. While the law was revolutionary at the time of its inception, its current form, though amended, still shows signs of needing modernisation. Stronger penalties, gender-neutral application of justice, and harmonisation with international child protection standards are necessary to enhance its effectiveness.
In the broader context, legal frameworks like this one must be accompanied by community engagement, education reforms, and social awareness campaigns to challenge the cultural norms that perpetuate child marriage. While legislation is a powerful tool, it alone cannot dismantle centuries of social conditioning. However, as a starting point, the Child Marriage Restraint Act provides essential legal protection and embodies the state’s acknowledgement of children’s rights and the need for their protection.
