Authored By: Sanan Khan Jadoon
Bahria University Islamabad
Case Title & Citation:
Mst. Mumtaz Bibi Vs. Qasim and Others 2021
PLD 2022 Islamabad 228
Court Name & Bench:
Islamabad High Court, Islamabad
Justice Babar Sattar
Date of Judgment:
09.02.2022
Parties Involved:
Petitioner: Mst. Mumtaz Bibi
Respondent: Qasim and Others
Facts of the Case:
The petitioner was aggrieved by the abduction of her daughter, Swera Falak Sher (“Minor”), who was born on 07.03.2006, and sought her recovery. The FIR was registered at Police Station Golra Sharif, Islamabad against respondents No. 1 and 2 and other unknown accused. According to the Petitioner, the police did not include respondent No. 1 in investigation nor did they produce the daughter of the petitioner. The petition filed under 491 of the Code of Criminal Procedure 1898 was dismissed by the learned Additional Sessions Judge on the basis that the daughter of the petitioner was married to respondent No. 1. When the Minor was produced in the court, she refused to go with the petitioner (her mother). The court ordered that the Minor be lodged in Dar-ul-Aman.
Issues Raised:
The honorable court in that case had to decide whether to release the minor into the custody of the petitioner who is her mother and claimed that she was abducted or into the custody of respondent No. 1 who claimed to have married to her. In relation to this question, following four issues arose:
- Can a Minor execute a valid contract of marriage and can a marriage between an adult and a child, even if with the consent of the child, be deemed to be a valid marriage? 2. What is the age of majority in Pakistan, and does a Minor have the legal competence to enter into a contract of marriage before attaining the age of majority?
- Can the consideration and purpose of contract of marriage be regarded as lawful in view of section 23 of the Contract Act, 1872, read together with sections 375 and 377A of Pakistan Penal Code, 1860?
- Can a contract of marriage, involving an object and purpose that is proscribed, be treated as a valid contract while simultaneously creating criminal liability for the male for carrying out acts conceived by such contract?
Arguments of the Parties:
Following are the key arguments presented by the learned councils for the petitioner and the respondents:
Arguments by the Petitioner:
Council for the petitioner stated that according to Family Registration Certificate the age of the minor is 15 years which is also verified by the National Database and Registration Authority. She relied on the case Muhammad Safeer Vs. Additional Sessions Judge (West) Islamabad and others (2018 PLD Islamabad 385), which declares that when the age is confirmed by the NADRA, there is no need for the medical examination. She further relied on Mst. Alishba Bibi Vs. The State and 7 others (2020 PLD Islamabad 28), where the same court had given the detail directions to the concerned authority to curb the evil of child marriage and also it was declared that the age of a child should be determined by a court of competent jurisdiction after recording of evidence. She further relied on Mst. Bakhshi Vs. Bashir Ahmed (PLD 1970 SC 323), for the proposition that who marries the girl under the age of 16 years is held liable under the Pakistan Penal Code 1860. She submitted that before the abduction the minor was living with her parents and she had also filed the suit before the court of competent jurisdiction for the jactitation of marriage. Minor should be given in the custody of her parents as the decision is pending.
Arguments by the Respondents:
Council for the respondents No. 1 and 2 stated that the minor was married to the respondent No. 1 should be released into the custody of him. She relied on Muhammad Khalid Vs. Magistrate Ist Class and 2 others (PLD 2021 Lahore 21) for the proposition that the minor who reaches the puberty can marry the person of her choice even if she is 14/15 years old and also the consent of the guardian is not required. She further relied on Rashad Nazir Vs. The State and 3 others (2000 SCMR 1179) for the proposition that a sui juris girl could not be directed to live in Dar-ul-Aman. She also relied on Muhammad Bashir Vs. Muhammad Usman (2003 SCMR 1339) where a sui juris girl contracted the marriage contract and FIR of her abduction was registered for her recovery and Supreme Court ordered for the quashing of FIR.
Arguments by the State Council:
Mr. Shazeb Nawaz Khan advocate, the state council stated that the Muslim Family Law Ordinance, 1961, which dealt with the registration of marriage and divorce etc., did not address the issue of the marriage of a minor. He submitted that under section 64 of the Family Court Act, 1964, the court cannot question the validity of marriage which was registered under MFLO. He submitted that due to lack of clarity in MFLO, marriages of Muslims under 18 years were continued as in view of customary understanding of law that marriages are dealt under Muslim Personal Law. He further stated that under Pakistan Muslim Personal Law (Shariat) Application Act, 1962, Muslim Personal Law is applicable to the question of marriage subject to the enactment for the time being in force. Consequently, according to him the Muslim Personal Law can be relied upon as a source of law. He further submitted that under Child Marriage Restraint Act, 1929, the child in case of a female is defined as a person under 16 years of age and section 4 of the act prescribe the punishment of 1 month if a male married a child. And section 2(vii) of Dissolution of Muslim Marriages Act, 1939, a minor girl was entitled to seek dissolution of marriage before she attained the age of 16 years provided that the marriage was not consummated.
He further submitted that most of the case law on the question of marriage relied on the commentary on Muslim Personal Law by Dinshaw F. Mulla, according to which it would be assumed that the child has a capacity to enter into a marriage contract if she had gained the puberty. he contended that the commentary is neither a source of law nor binding on the courts yet it had been treated as a source of law by the courts. He then drew the court’s attention to Muhammad Aslam Vs. State (2012 PCr.LJ 11), wherein the Federal Shariat Court contrary to the notion of puberty, declared that the consenting adult is a person who has come to age responsible enough to understand the consequences of marriage. The state council concluded that the legislative was clear that the female under the age of 16 cannot enter the contract of marriage.
Judgment / Final Decision:
The court allowed the petition and directed to ensure that the minor is released from Dar-ul-Aman into the custody of petitioner i.e., her mother and also directed respondent No. 1 to give the litigation fee of Rs. 20,000 to the petitioner. It was directed to send a copy of this judgment to the Secretary, Cabinet Division, and Secretary, Ministry of Parliamentary Affairs, to bring to the attention of the Cabinet and the Parliament, respectively, (i) the absence of a clear statutory provision in the Muslim Family Laws Ordinance, 1961, stating the permissible age for marriage in Pakistan, (ii) section 21 of the Guardians and Wards Act, 1890, which is in conflict with provisions of Islamabad Capital Territory Child Protection Act, 2018, read together with provisions of the United Nations Convention on the Rights of Child, and capable of creating the false impression that children in Pakistan under the age of 18 are still deemed capable of being guardians in select circumstances, and (iii) provisions of statutory instruments dating back to colonial times, including the Majority Act, 1975, Child Marriage Restraint Act, 1929, and the Dissolution of Muslim Marriages Act, 1939, provisions of which, if read on a stand-alone basis, could be vulnerable to interpretations in conflict with provisions of Sections 375 and 377A of PPC read together with Islamabad Capital Territory Child Protection Act, 2018, and provisions of the United Nations Convention on the Rights of Child.
Legal Reasoning:
The court had to decide regarding the custody of the minor, who was less than 15 years according to official documents, and the validity of marriage was not the question before the court as the court did not have the jurisdiction to hear that issue. This issue arose incidentally as the court in discharge of its duties had to decide about the future of the minor. The court starts its reasoning with mentioning the right of every citizen to be dealt with law which is enshrined in article 4 of the constitution of Pakistan 1973. It further says that the law must be clear so the citizens may ensure that they do not fall foul of the law attracting liability. Afterwards, the court draws the attention towards other rights available to the children under the constitution. It was stated that they have right to life and liberty under article 9 which had been interpreted broadly in Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693), as a meaningful right to enjoy life and not just to exist. Article 25A holds that the children from 5 to 16 years of age shall be entitled to free education and article 35 says that the state shall protect the marriage, family, mother and the child.
Regarding the commentary by Dinshaw Fardunji Mulla, it is stated that he was not Muslim and his commentary cannot be considered as the source of law like the Muslim jurists. The court further states that the suggestion that the marriage and divorce etc. of Muslims are dealt by Muslim Personal Law and not by the statute is the flawed reading of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which gives this status to it subject to provisions enforced in the county. It further mentions Farooq Omar Bhoja vs. Federation (Shariah Petition 1/2020) which observed that there is disagreement among the Muslim jurists over the question whether or not the nikah of a minor girl is permissible. However, it was held that it was not un-Islamic if the state sets the minimum age for the marriage.
The court further states that in British India the colonizers avoided the interference in the personal matters of the subjects as evident in The Majority Act, 1875. The Dissolution of Muslim Marriages Act, 1939, contemplated the possibility of a child under the age of 16 being married off by her father or guardian. It is further stated that due to lack of clarity regarding the age of marriage in The Muslim Family Law Ordinance, 1961, court have to rely on the Muslim Personal Law for validating the marriage of female under 16 while at the same time attracting the criminal liability under sections 4, 5 and 6 of the Child Marriage Restraint Act, 1929.
Pakistan is signatory to the United Nations Convention of the Rights of Child 1989 and also incorporated these principles into the domestic laws. Where the PPC already defined the sextual intercourse with the girl of less than 16 years with or without her consent as rape, the amendment named Criminal Law (Second Amendment) Act, 2016 added 377A and 377B which say that whoever induces the child of less than 18 years with or without consent in any sexual conduct is liable of sextual abuse hence will be punished. The honorable court argues that how can the contract for the act which attracts criminal liability be valid. As under section 23 of the Contract Act 1872, says that the agreement is void if its object is unlawful, the marriage contract of by a minor is hence invalid. As the court has not the jurisdiction to determine the age through evidence and also it cannot give declaration regarding the validity of marriage, the court just directed to release the minor into the custody of her parents for her better care and left the other issues for the court of competent jurisdiction.
Conclusion:
This judgment provides insights regarding the very bitter reality of our society and the issues which are not taken up by the authorities due one reason or another. This judgment tried to highlight the lack of clarity in the enactments and also pointed out the loop holes in the present laws. This is one of the steps towards the protection of the rights of children especially the females. Child marriage is one of the very serious problems of our society which needs to be stopped for better lives and future of the children and also for the protection of their rights and freedom.
