LOVANIA PERTAB

We have recently heard of the tragic death of a married girl of thirteen whose parents accepted that she be married at an early age on the alleged basis that she had threatened to commit suicide if she was not married to her beloved…

Child marriage finds its source in our history and culture. It was in the past a tradition in India that children were married at an early age. In France, in the eighteenth century, Marie Antoinette was married to Louis Auguste at the age of fifteen. In Bangladesh, child marriage is still being practised.

It is worth mentioning that when we speak of child marriage, in most cases, only the wife is a minor. In the past, many religions have considered that the girl child could marry once she reached puberty. The benchmark of puberty was, of course, the appearance of the first menses for a girl child.

The general definition of a child in Mauritius is any minor under the age of 18. The Civil Law in Mauritius is clear on Child Marriage. Children, whether boys or girls, under the age of 16 cannot marry civilly. This civil law provision has its criminal counterpart as it is a criminal offence to have sexual intercourse with a minor under the age of 16. However, our legislators in their wisdom have made provision that parents (BOTH mother and father) of a child between the age of 16 to 18 may consent to the marriage of their minor child. In the absence of the mother or the father or whoever exercises parental authority, authorisation may be sought from the Judge in Chambers of the Supreme Court for the minor to marry.

We therefore see that in Mauritius, the law generally prohibits child marriage.
HOWEVER, there is a specific mention in our Civil Code which provides for religious marriage. There is a Chapter which is exclusively reserved for Religious Marriages. In fact, Article 228-2 of the Civil Code clearly mentions inter alia, that “le mariage religieux n’est pas régi par la loi civile”: which clearly means that in the case of this poor girl, provided she was married by a competent person, her marriage would not be illegal.

Of course, we do not know whether the marriage was indeed celebrated by a competent person. With regards to Muslim marriages, according to the Civil Status Act, when a person applies to the Registrar of Civil Status to have the authority to celebrate a Muslim religious marriage, he must get the approval of the Muslim Family Council, which said Council is indeed functioning.

It would be interesting to know whether the Muslim Family Council has indeed established rules for the celebration of Muslim marriages as per section 30 (c) of the Civil Status Act. We note that the Council has also the duty to keep proper registers of religious marriages and religious divorces. Does the Registrar of Civil Status check whether these Registers are correctly kept?

It is indeed unfortunate that we do not have clear statistics about child marriages in Mauritius. Such occurrences are well hidden, and we hope, a rare incidence in our country.
There are so many reasons why parents marry their girl child: religion, poverty, shifting parental responsibility. In our present case, the girl child was a sick child….
The death of this girl child has shocked the country and we consider that the State has a duty to protect the girl child:

– We strongly believe that all children should be treated equally and therefore the application of the law should be the same for all children: Marriage must be forbidden below the age of 16 or 18, as the case may be.

– It is clear that the system is not working properly, if the provisions of our criminal law are indeed to be applied to all of our countrymen. Why did the Doctor, who examined the child (as she was pregnant), not report the matter to the police as it was clearly an offence of “sexual intercourse with child under 16”?

– It is imperative that parents are educated about their responsibilities towards their girl child.

– There must be a reasoned and honest dialogue between the Government and the Muslim community about the future of the girl child…

– If Rules have been established by the Muslim Family Council, such rules must be available to the public so that all are aware and have knowledge of them.
In 2016, the Gambian President Yahya Jammeh, announced during the holy month of Ramadan that child marriage was being banned. What a beautiful gesture…
Can we expect such pronouncement from our Prime Minister and other persons in authority?