This case is classic example of Miscarriage of Police and Judicial System of Pakistan as Child Marriage is not also being accepted by Police as well as Lower judiciary and higher judiciary to some extent but being justified. Though in some instances in Urban Courts, the honourable Judges disallowed/ irregualarised Child Marriages and convicted accused involved in Child Marriages (Malir’s model Trial court convicted two accused in two different cases) but when it comes to rural areas particularly, the norms of justice are seen changed and dominated by patriarchal mindset which not only understand such marriages well and good but supports and legally dig out ways and use loop holes of law for its justification.
The case of Anam Fatima (15 years old girl) is the worst example of patriarchal mindset in our Police system and to some extent in judiciary as Station House Officer-SHO, Deputy Superintendent of Police-DSP and Senior Superintendent of Police-SSP level officials were involved in this case but played negative role in registering the First Information Report-FIR against such crime under Sindh Child Marriages Restraint Act 2013, the Act XV of 2014 and same is the case with Lower Judiciary to High Court’s Division and single Benches at Sukkur Sindh province of Pakistan.
Child Marriages Restraint Act 2013 defines Child as “A male or female who is under 18 years of age is child” and its section 8 says “the offence shall be cognizable, non- compoundable and Non-bailable”; while sections 3 and 4 refer to the conviction which is maxim three years but not less than two years with fine.
According to documents available Ms Anam Fatima went missing on 27th December 2020 from her house and after two days she appeared in Lower court and High court of Sukkur Sindh for protection and claimed that she had married with Hussain Ahmed with her free will. In between the parents of the girl registered FIR of kidnapping under section 365-B of Pakistan Penal Code (PPC). The brother of girl who was complainant told police that his sister aged about 15 years had gone missing from house’s street and they suspect that girl had been kidnapped.
Before Division Bench the parents and their Counsel submitted documents of girl including Metric School Certificate and NADRA Form-B, in which girls’ age was 15 years, three months and 19 days at the time of alleged Nikkah. The age of girl was declared in affidavit as 18 years which was issued in the name of same girl which is technically/legally wrong because it is compulsory to mention the National Identity Card-NIC number of the person whose in the name affidavit is being issued.
However the two orders of Lower court of Sukkur carried two different ages as in one order age was mentioned 19 years and second order carried age 22 years. It is pertinent to mention that affidavit and Nikahnama carried 18 years of age. Shockingly DB of Sindh High Court not only ignored official documents but even did not bother to order medical board for the determination of the age of the girl as clear cut controversy had arisen on the issue of age.
The DB was led by Mr. Justice Aftab Ahmed Gorar and Mr Justice Faheem Ahmed Siddiqui (who had suspended two MPAs in dog biting case, later reversed his own order in review) allowed the protection and directed police to cancel the kidnapping FIR accordingly but that order did not mention the documents submitted by the parents and learned counsel. DB remarked that they were hearing only protection Constitutional Petition-CP, so protection is allowed and they would rely on the girl’s statement only. The girl was sent with her alleged husband as per court directions.
Later parents approached the concerned police station again for registration of FIR under sections of Sindh Child Marriages Restraint Act 2013 but it was declined vehemently and then parents filed application with sessions court Naushahro Feroze which was transferred to Additional Session Judge Mr Qamaruddin Abbasi, who in his remarks not only justified the marriage but also shared the example of the marriage of Bibi Ayesha (RA) and further declared that puberty is required only; however learned counsel referred Sindh Child Marriages Restraint Act 2013 and Arzoo Raja/Fatima case (DB of Sindh High Court Karachi Bench ir-regularised such marriage and sent the girl to Panah Shelter Home) as well but honourable Judge declared the Law as un-Islamic. Surprisingly the said Judge neither mentioned age certificates nor his remarks in written Order but only wrote that affidavit says girl was 18 years of age, so application is dismissed.
Shattered and dejected parents did not stop here and then they filed appeal in the Sukkur High Court Bench which took around three to four months to be heard as benches kept shifting accordingly, the said application visited four honourable Judges during that period and only one Judge issued notice to Investigation Officer for his presence.
Meanwhile parents wrote various applications to Chief Justice of Pakistan, President, Prime Minister, Chief Justice Sindh including MIT (Member Inspection Team) but they never received any positive response yet. Those applications were sent with supporting age documents but they received only answer from MIT that “you may continue with your legal remedy as we were looking into the matter yet”.
“I have sent applications to Army Chief, ISI and MI officials also as proposed accused had been portraying himself as an Intelligence guy; therefore I wrote to them and they have had held two inquiry meetings with me and made commitment that action would be taken” told Munawar Ali, the father of the girl.
Finally the matter was taken in single bench of Sindh High Court Bench on 23rd August, 2021 before newly made Judge Mr Justice Zulfiqar Ali Sangi, who heard the appeal and remarked that the application was not liable to be dismissed as cognizable offence had been made out and questioned Additional Prosecutor General-APG why it happened?, who remained silent for a while and replied that had been done by lower judiciary.
The learned counsel for applicant contended that cognizable offence had been made out by solemnizing a child marriage which is in violation of sections 2 (a), 3 and 4 of the Sindh Child Marriages Restraint Act 2013 and counsel presented School Certificate and NADRA Form-B (which were already part of the plaint/application). Upon this honourable Judge ordered police to incorporated the version of the applicant (Munawar Ali) in the FIR of Kidnapping by reopening the same but the learned counsel requested for separate order for FIR registration as the crime was different and old FIR was closed but Honourable Judge said “when I am making the order then why you (counsel) are emphasizing on second FIR”, then learned counsel agreed accordingly.
Honourable Judge said original application will stand rejected but your version will be incorporated in the first FIR No. 78/2020. He ordered the police to submit the report with the court after incorporating the applicant’s version.
The parents as well as the learned counsel was shocked to see the written order after two days which was totally against the verbal Order, made by honourable Judge in the open court. The application was dismissed and the girl’s age in old order was shown and relied upon by Judge as 22 years, got validated and Judge wrote it does not come into the ambit of Sindh Child Marriages Restraint Act 2013 but malafidely in this order too the School Certificate and NADRA form B (which were part of the appeal papers mentioned in Index) were not mentioned and even not discussed by the honourable Judge.
More surprising point is that the Counsel for defendant/accused did not appear before the honourable court during the hearing but order carries his presence and discusses his contentions malafidely as well. Order carries extra information that was not brought before the court during the hearing and even was not part of the Plaint and no written response was submitted by defendant’s lawyer. It carries the protection order and two orders of lower court in which two ages were mentioned as 19 and 22 years but Judge relied on 22 years and if that’s the case then how three ages mentioned can be correct?
The parents are completely in the state of shock and they said they don’t have money to approach the Honourable Supreme Court for justice as they knocked all the doors of judicial and police system in the country. They told that since six months they were unable to know about the safety of their daughter and could not meet her as the proposed accused is habitual criminal to deceiving minor girls. They alleged that the group of accused persons deceive girls in the name of marriage and love and then sale them out or kill them but no one is ready to provide justice to us. Father told that girl was too much competent and wanted to be a Doctor but her life had been ruined by trapping her through social media platforms.
According to documents available girl still is under 18 years but parents have no remedy left and when such situation is left in rural areas then mostly people take law into their hands and many couples had been killed or women kidnapped in revenge which is wrong and not justified but when police system and judicial system fails to provide timely justice to the Victims, then which way is left behind for them?
It is a big question for our Police and Judicial system to be answered, ultimately such mindset would bring increase in child marriages/early age and as well as forced marriages. If the puberty is the real instrument for being adult then why honourable courts order to issue such persons NIC, Driving License, right of vote etc. Why selective implementation of Islamic tradition is being applied only on marriage as Islam orders to cut the hands of thieves and stoning to death punishment for rapist, then how many thieves and rapists have faced such punishment through courts? The answer is not a single, but only Zafran Bibi was sentenced with stoning to death which was reversed after the protest of civil society.
I am die hard supporter of civil liberties but Save in accordance with Law as enshrined in the constitution of Pakistan. One cannot support any illegal act but when people did not get justice timely then they took law into their hands and they find only way of SELF JUSTICE which is increasing day by day in our country. Mob launching is the worst example of such mindset of SELF JUSTICE, which should be discouraged by ensuring justice and rule of law.
Being a Human Rights Defender, I feel helpless when our police and judiciary fail to provide speedy, cheaper and justice at their door step to poor’s/ vulnerable, ultimately I am writing against this mindset and injustice. I feel it happened because of deep rooted patriarchal mindset in our society and if it continues as it is then one can only say “Long live Patriarchy” in Pakistan, particularly in Police and Judicial system of rural areas. I am not blaming rural officials but unfortunately they mostly act in such manner which strengthens patriarchal mindset. Mostly they act against women and vulnerable unfortunately.
One can allege me of writing against judiciary/Judges but that’s not the case whatever I have written is against Patriarchal mindset which very much prevails everywhere in our society and being a High Court Lawyer, I am ready to face the consequences as I strongly believe in the promotion and protection of Human Rights, rule of law and abiding the constitution and expect the same spirit from Police and Judges as well because no one should be allowed to take steps or orders/Judgments beyond the law of the land.
Recently the Chief Justice of Sindh High Court was appointed as Adhoc Judge of the Supreme Court in a controversial order followed by his junior who was made permanent Judge which was declined by the CJ. The Bench, Bar and other civil society including media resisted such order because it was not a legal order, so how Judges can go beyond law and law on the Child Marriages is very much clear; therefore now We have to decide whether we want to go by the Book or beyond the Book?
Writer is Human/Women Rights Defender/Media Lawyer
