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Petitioner: Nasira VS Respondent: Judicial Magistrate and 5 others
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Nasira vs Judicial Magistrate and 5 others Case No.: Writ Petition No. 45156 of 2019 Date of Judgment:2019-08-02 Reported As: PLD 2020 Lahore 489 Result: Petition accepted
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J.---The Petitioner , Nasira, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), praying that her mino r daughter Pumy Muskan be recovered from the alleged illegal custody of Respondents Nos.5 and 6 and dealt with in accordance with law . 2. Brief facts giving rise to this petition are that the Petitioner is a Christian by faith and her husband is confined in jail serving sentence in a criminal case. She is supporting a large family all by herself working in different houses. Respondents Nos.5 and 6 employed her 14-year-old daughter Pumy Muskan for household chores promising not only to pay for her needs but also provide education. After a few months when the Petitioner went to meet Pumy Muskan Respondents Nos.5 and 6 told her that she was with the sister of Respondent No.5 in another city and having embraced Islam did not want to see her any more. The Petitioner protested but they turned her out of their house. She approached the Respondent SHO but he did not help. The local Christian leader , Ch. Mushtaq Gill, then intervened and informed the Respondent SHO that the incident had hagridden his community and urged him to recover the girl. The police officer was initially reluctant but eventually agreed to produce her before the Judicial Magistrate, Sargodha, on 5.7.2019. Respondents Nos.5 and 6 also entered appearance before the Magistrate that day. During the proceedings the Respondent SHO confirmed that Pumy Muskan had embraced Islam but, in view of her tender age, requested that she should either be handed over to the Petitione r or sent to Dar-ul-Aman (shelter home). The Magistrate recorded Pumy Muskan's statement who expressly stated that she did not want to go with the Petitioner . Accordingly , he lodged her in Dar-ul-Aman. His order dated 5.7.2019 is reproduced hereunder: {{URDU TEXT}} 3. According to the Petitioner , she requested the Superintendent Dar-ul-Aman to allow her to see Pumy Muskan but he refused. On 8.7.2019, she learnt that the Magistrate had ordered her release and the. Superintendent had once
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again handed her over to Respondents Nos.5 and 6. Consequent thereupon she filed the instant petition before this Court. 4. This' Court directed the Respondent SHO to recover Pumy Muskan who has produced her today . 5. The learned counsel for the Petitioner contended that Pumy Muskan was a minor and Respondents Nos.5 and 6 had converted her to Islam through inducement and undue influence. The girl being of tender age could not make an informed decision to change her religion and even if she had consented to it the same was of no legal consequence. He further contended that even if Pumy Muskan's conversion was recognized and declared valid, the Petitioner being her mother could not be deprived of her custody . He argued that in their enthusiasm to support the conversion of a female of tender age Respondents Nos.1 to 4 had not only ignored the Injunctions of Islam but also the law of the land. The learned counsel prayed that the custody of Pumy Muskan with Respondents Nos.5 and 6 be declared illegal and she may be returned to the Petitioner . 6. The learned Assistant Advocate General adopted the arguments of the learned counsel for the Petitioner and supported this petition. 7. On the other hand, the learned couns el for Respondents Nos.5 and 6 vehemently opposed this petition. He contended that Pumy Muskan had converted to Islam with her own choice being impressed with its teachings. This was evident from the fact that she had learnt by heart a number of Surahs from the Holy Qur'an within a short span of time. He further contended that this Court would put her life and security at great risk if it gave her to the Petitioner . He prayed for dismissal of this petition. 8. Mr. Sheraz Zaka, Advocate, the learned amicus curiae, submitted that employment of Pumy Muskan with Respondents Nos.5 and 6 was violative of section 3 of the Punjab Domestic Workers Act, 2019, which prohibited engagement of a child below the age of 15 years for any household work. Although there was no evidence to show that it was a forced conversion, it was doubtful that the girl could make an intellige nt decision about changing her religion at the age of 14. He added that even if it was assumed that she had done so freely and voluntarily , the Petitioner could not be deprived of her right of custody . 9. Arguments heard. Record perused. 10. There is no precise definition of religion. It is a matter of faith and belief in God is not essential to constitute religion. In The Commissioner , Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar qt, Sri Shirur Mutt (AIR 1954 SC 282), the Supreme Court of India observed: "Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral part of religion, and these forms and observances might extend even to matters of food and dress." 11. On the other hand, religious conversion is "the adoption of a set of beliefs identified with one particular religious denomination to the exclusion of others. Thus 'religious conversion' would describe the abandoning of adherence to one denomination and affiliating with another . This might be from one to another denomination within the same religion, for example, from Baptist to Catholic Christianity or from Shi'a to Sunni Islam." 12. Freedom of conscience and the right to profess, practice and propagate religion is reckoned as a fundamental human right. The Universal Declaration of Human Rights (1948) (UDHR), which is a seminal multilateral instrument that provides "a common standard of . achievement of all people and all nations", specifically recognizes it as such. Article 18 thereof states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others in public or private, to manifest his religion or belief in teaching, practice, worship or observance." 13. Article 18 of the International Covenant on Civil and Political Rights, (1966) (ICCPR), articulated the United Nations' aforementioned Declaration regarding religious freedom as follows:1
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Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety , order , health, or morals or the fundamental rights and freedoms of others. . 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. 14. Similar provisions are found in a host of other international instruments. In this context reference may be made to Article 9 of European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Article 12 of the American Convention on Human Rights (1969), Article 8 of the African Charter on Human and Peoples. Rights (1981), Universal Islamic Declaration on Human Rights (1981), and Arab Charter on Human Rights (1994). 15. ICCPR protects not just the internal components of belief, such as choosing one's religion, but also "the freedom to communicate within one's own religion or belief group, share one's conviction with others, broaden one's horizons for communicating with people of different convictions, cherish and develop contacts across State boundaries, receive and disseminate information about religion or belief issues and try to persuade others in a non- coercive manner . The Human Rights Committee, the body charged with monitoring implementation of ICCPR, explained in General Comment No.22 that freedom to "have or to adopt" a religion or belief includes the right to change one's current religion or belief or to adopt atheistic views. Relevant excerpt from General Comment No.22 is reproduced hereunder: "The. Committee observes that the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views, as well as the right to retain one's religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert." 16. Pakistan signed the ICCPR on 17.4.2008 with the following reservation: "The Government of the Islamic Republi c of Pakistan reserves its right to attach appropriate reservations, make declarations and state its understanding in respect of various provisions of the Covenant at the time of ratification." 17. On 23.6.2010 Pakistan ratified the ICCPR subject to certain reservations. However , through a subsequent communication dated 20.9.201 1 the government notified the Secretary-General that it had decided to partially withdraw the reservations, made upon ratification, to Articles 3 and 25 and to Articles 6, 7, 12, 13, 18, 19 and 40. 18. Our Constitution of 1973 envisages "equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality ." Besides, it commits that "adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures." 19. The freedom to religion lies at the heart of our democratic enterprise. Article 20 of the Constitution of 1973 sanctifies it as a fundamental right reading as under: 20. Freedom to profess religion and to manage religious institutions.---Subject to law, public order and morality- (a) every citizen shall have the right to profess, practice and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.2 3 4 5
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20. In Suo Motu Case SMC No.1 of 2014 (PLD 2014 SC 699) the Hon'ble Supreme Court of Pakistan held that the freedom of religion must be construed liberally to include freedom of conscience, thought, expression, belief and faith. Freedom, individual autonomy and rationality characterize liberal democracies and the individual freedoms thus flowing from the freedom of religion must not be curtailed by attributing an interpretation of the right to religious belief and practice exclusively as a community-based freedom. 21. In order to reassure the above-mentioned right, Article 21 prohibits imposition of any special tax the proceeds of which are to be spent on the propagation of any religion other than a person's own. Article 22 inter alia provides safeguards as to educational institutions in respect of religion. 22. The freedom to religion is guaranteed to "every citizen" in the country irrespective of his age and whether he is a Muslim or non-Muslim. In Suo Motu Case No.1 of 2014 (PLD 2014 SC 699), supra , the Hon'ble Supreme Court of Pakistan explained: "15. Of all the Articles relating to the minorities' rights, Article 20 is of prime significance. A close reading of this provision would indicate that the freedom to practice religion and manage religious institutions under this provision is multifaceted because: (a) The right to religious conscience conferred under this Article does not make any distinction between majority and minority or Muslim and Non-Muslim. It is in the nature of an Equal Religious Protection Clause conferred on every citizen, every religious denomination and every sect thereof. This equal religious protection clause is in the same nature as the equal justice under the law and equal protection under the law clauses conferred under Articles 4 and 25. In other words, every absolute equality and there is no distinction among citizens, religious denominations and sects thereof, as far as the right to religious conscience, is concerned. (b) The right to religious conscience is a fundamental right. It has not been subjected or subordinated to any other provision of the Constitution because it is only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality has been used in non-religious terms as the notion of law or public order or morality is not reducible to the Islamic meanings of these terms. Therefore, Article 20 has a certain preeminence in the Constitution being only subject to the general restrictions of law, public order and morality , which three terms cannot be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre-eminent right to religious conscience. (c) The right to profess and practice is conferred not only on religious communities but also on every citizen. What this means is that every citizen can exerc ise this right to profess, practice and propagate his religious views even against the prevailing or dominant views of its own religious denomination or sect. In other words, neither the majority religious denominations or sect -nor the minority religious denomination or sect can impose its religious will on the citizen. Therefore, not only does it protect religious denominations and sects against each other but protects every citizen against the imposition of religious views by its own fellow co-believers. It needs to be mentioned here that every citizen would necessarily include both males and females (Article 263), which point needs emphasis considering the exclusion or subordination of women in relation to numerous forms of religious practices. (d) As far as every religious denomination is concerned, even sects within these religious denominations have been conferred the additional right to establish , maintain and manage its religious institutions. Therefore, even sects within these religious denominations have been protected against their own co-religious denominations. (e) The right of religious conscience conferred on every citizen is a right conferring three distinct rights, i.e. Right to Profess, Right to Practice and Right to Propagate. What this means is that Article 20 does not merely confer a private right to profess but confers a right to practice both privately and publicly his or her religion. Moreover , it confers the additional right not only to profess and practice his own religion but to have the right to propagate his or her religion to others. It is important to note that this propagation of religion has not been limited to Muslims having the right to propagate their religion but this right is equally conferred on Non-Muslims to propagate their religion to their own community and to other communities. This should not be seen as a right to encourage conversions but more importantly , shoul d be seen as a right against forced conversions or imposing beliefs on others because if all citizens have the right to propagate then no citizen has the right of forced conversion or imposing beliefs on others." (emphasis added)
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23. It is pertinent to note that, as the Supreme Court of Pakistan highlighted in the above-mentioned judgment, Article 20 grants right to the citizens to propagate their faith but this right does not extend so as to allow any one to convert a person to another religion by coercion or inducement. Forced conversion or imposing beliefs on others rather constitutes infringement of the right to freedom of religion. The Supreme Court of India expressed similar view in Rev. Stainislaus v. State of Madhya Pradesh and others (AIR 1977 SC 908) while construing Article 25 of the Indian Constitution which is analogous to Article 20 of our Constitution. It said: "We have no doubt that..[what] the word, 'propagate' in Article 25(1) [of the Constitution of India],...grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees 'freedom of conscience' to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the 'freedom of conscience' guaranteed to all the citizens of the country alike....we find no justification for the view that it grants a fundamental right to convert persons to one's own religion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other , in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion." The Supreme Court of India reaffirmed the above view in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others (AIR 1995 SC 1531) and Lily Thomas and others v. Union of India and others (AIR 2000 SC 1650) . 24. Heiner Bielefeldt, the United Nations Special Rapporteur on freedom of religion or belief from 2010 to 2016, reported that owing to violations of the right to convert the issue of conversion has "become a human rights problem of great concern. According to him, there are dif ferent perpetrators of, and motives for , such violations: "For instance, abuses are perpetrated in the name of religious or ideological truth claims, in the interest of promoting national identity or protecting societal homogeneity , or under other prete xts such as maintaining political and national security . While some undue restrictions on the rights of converts or those trying non-coercively to convert others are undertaken by State agencies, other abuses, including acts of violence, stem from widespread societal prejudices. Violations in this sensitive area also include forced conversions or reconversions, again perpetrated either by the State or by non-State actors. In addition, the rights of converts or those trying non- coercively to convert others are sometimes questioned in principle." 25. Some countries, including India, Nepal, Myanmar and Bhutan, have enacted anti-conversion laws. The legislatures in Pakistan and Sri Lanka considered anti-conversion bills but did not pass them. In Pakistan Hindu Council v. Pakistan through Ministry of Law (PLD 2012 SC 679) the Hon'ble Supreme Court of Pakistan observed that in Pakistan it was probably not required because Article 20 of the Constitution guarantees sufficient protection to the minorities against all accesses. 26. Children have rights and liberties like adults but they are sometimes restricted because of their vulnerability . The human rights law also focuses, on them, particularly in respect of religious freedom. For this reference may usefully be made to the Declaration on the Elimination of All Forms of Intoleranc e and Discrimination Based on Religion or Belief (1981) and the Convention on the Rights of the Child (1989). So far as religious freedom is concerned, Article 5 of the said Declaration of 1981 recognizes (a) the right of the parents or legal guardians to bring up the child in their religion or belief; and (b) right of the child to education in religion or belief, in accordance with the wishes of the parents and the right not to be compelled to receive education against their wishes. On the other hand, the Convention of 1989 provides: Article 26
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1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour , sex, language, religion, political or other opinion, national, ethnic or social origin, property , disability , birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applic able, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety , order , health or morals, or-the fundamental rights and freedoms of others. Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language. 27. Having discussed the law on the subject, I turn to the case before me. It involves the following moot points: I. Whether Pumy Muskan, who is admittedly a 14-year-old minor , could change her religion without the consent of her parents? II. Whether her conversion is tainted and forced? III. Whether the Petitioner is entitled to her custody notwithstanding the fact that she has embraced Islam? I take up these issues seriatim. Moot Point I 28. Prophet Muhammad (peace be upon him) said: {{URDU TEXT}} [No babe is born but upon Fitra. It is his parents who make him a Jew or a Christian or a Polytheist .] 29. Islam teaches that everyone is Muslim at birth but the parents or society cause one to deviate from the straight path. Therefore, when someone accepts Islam he is considered to revert to his original condition. Nevertheless, Islam prohibits use of force against anybody to get him converted. The following verses of the Holy Qur.an are very instructive: Surah 2 V erse 256 : {{URDU TEXT}} [There is no compulsion in religion. The right direction is henceforth distinct from error. And he who rejecteth false deities and believeth in Allah hath grasped a firm handhold which will never break. Allah is Hearer , Knower .] Surah 10 V erse 99 : [And if thy Lord willed, all who are in the earth would have believed together . Wouldst thou (Muhammad) compel men until they are believers ?] 30. Hafiz Ismail Ibn Kathir (1300-1373), a great historian, exegete and scholar , has explained the above-mentioned Divine Command in his famous commentary Tafseer Ibn Kathir as under: "Do not force anyone to become Muslim, for Islam is plain and clear , and its proofs and evidence are plain and clear . Therefore, there is no need to force anyone to embrace Islam. Muslims have a collective responsibility to share the…
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