Child marriage: A maze of dialectics
A High Court Division (HCD) bench comprising of Justice Quazi Reza-Ul Hoque and Justice Mohammad Ullah, has issued a suo motu rule after taking notice of a report (eight child marriages prevented in 24 hours)published in the Daily Prothom Alo on 28 October 2017. The rule has asked the concerned authorities (Secretaries to different ministries) to explain in four weeks as to why the union parishad chairpersons and members as well as ward councilors of city corporations and municipalities and the local people's representatives across the country, will not be held responsible for the child marriages taking place in their respective areas of governance. The bench went on to ask the authorities concerned to show cause as to why the aforementioned persons should not be terminated from their posts for not being able to prevent child marriages in their areas.
Even a few years back, an objection could have been raised against the issuance of suo motu rule in the present case for the absence of the condition precedent, namely of an application as it appears as such under Article 102. However, this issue has already been settled by the HCD in 2015. In Tayeeb v Bangladesh 67 DLR (HCD) 57, the HCD reiterated the fact that the majority of the people in Bangladesh cannot afford to come to the court to seek redress of any grievance. If the fundamental right of a citizen is violated, in view of the HCD, mere non-filing of an application cannot be a ground for not exercising its jurisdiction under Article 102. The Court substantiated its point by relying upon an unreported case, Sayeda Rizwana Hasan v Bangladesh 18 BLC 54, in which it was held that whenever an invasion of fundamental right shocks the judiciary, the court should extend its jurisdiction. Therefore, in the court's opinion a proper case where fundamental right of a citizen is infringed, the HCD can issue suo motu rule provided the infringement is amenable to writ jurisdiction and is of great public importance. In this context, newspaper reports, post cards, written materials may be treated as an application to overcome the obstacle of application. But before issuance of suo motu rule the HCD should in clear terms record its satisfaction to exercise such power. Therefore, there should not remain any objection, on the present date, against the issuance of suo motu rule on the present issue in question upon taking notice of a newspaper report.
Any critique of the 2015 judgment is a matter of a different discourse. The main concern here is the existence of the Child Marriage Restraint Act 2017 which allows marrying off girl children below 18 under 'special circumstances'. For a better understanding of the exceptional clause, the Child Marriage Restraint Rules to the corresponding Act have also been drafted. The Rules interpreted the 'special circumstances' to include the girls' pregnancy followed by their involvement in romantic relationships and absence of the girls' close kindred for maintaining them. The blanket clause validates child marriages and now, the 'immensely' pro-bono suo motu rule at hand, speaks as if the Act did not exist.
The idea of holding the local government representatives accountable for the child marriages taking place in their respective areas sounds extremely pro people. But the difference between the stance of the legislature and that of the judiciary on the self-same issue is visibly astonishing. Where an Act of parliament, along with the draft Rules, provides for a clause validating child marriages and indirectly (unintentionally or not is subject to another discourse) makes room for coercive sexual intercourse(s) and/or rapes within the purview of 'special circumstances', the suo motu rule and its role create confusion.Whether the local government representatives will be responsible only if the child marriages are not in compliance with the exception clause and do not take place under the special circumstances as were thought of by the legislature or not, entices a sense of discomfort.
Had it been 2015, given the fact that Bangladesh has been suffering from child bride epidemic for a while now and is ranked among the first 10 in the world in terms of marriages of girls under 18, the rule issued by the HCD could have got the applauds it rightfully deserves. But the Greenwich Mean Time says something different. Both the facts that it's 2017 and the Child Marriage Restraint Act 2017 is a law in place, negate the idea of admiring the judiciary. The fate of the girl children in Bangladesh, swings in a certain direction, the wrongness of which is hard to even begin to contemplate.
THE WRITER IS A STUDENT OF LAW, UNIVERSITY OF DHAKA.