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Petitioner: Tahira Bibi VS Respondent: Station House Officer and others
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title: Tahira Bibi vs Station House Officer and others Case No.: Writ Petition No. 15567 of 2019 Date of Judgment:2019-10-29 Reported As: PLD 2020 Lahore 811 Result: Petition allowed
Judgment ORDER ANW AARUL HAQ PANNUN, J.---The petitioner , by means of instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has made the following prayer:- "In the light of above submissions, it is, respectfully played that the instant writ petition may very kindly be accepted by way of directing the respondents Nos.1 to 3 not to harass the petitioner , their family members and also not to interfere within the matrimonial lives of the petitioner at the instance of respondents Nos.4 to 1 1. It is further humbly prayed that any other equitable relief, to which the humble petitioner may be found entitled to, be also granted". 2. As per averments of the petition, the petitioner being major and sui-juris, while exercising her free-will entered into a matrimonial bond with one Muhammad Bashir on 07.08.2019 against the wishes and without the blessing of her parents. After the solemnization of marriage, respondents Nos.1 to 3/SHOs at the behest of private respondents started harassing, intimidatin g and compelling the petitioner to get divorce from her husband and in the wake of this drive, on 15.08.2019, respondents Nos.1 to 3 illegally conducted a raid at her house. Upon raising hue and cry, the people of the locality attracted to the spot and rescued her from the clutches of said respondents. The petitioner has invoked the jurisdiction of this Court being aggrieved of the behaviour and conduct of the official respondents who in the aforementioned circumstances are illegally creating harassment to her . 3. Heard. 4. At the very outset, it is observed that during the judicial dispensation, it has oftenly been noticed that as a result of registration of criminal cases in respect of offences under Chapter XVI-A, P.P.C. while waging a plea of valid marriage having duly been registered under the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as 'the MFLO' ) by one of the parties to the lis, generally contested by the other side or even in absence of registration of criminal cases, the grievance of illegal and undue harassment to the breach of fundamental rights of the
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aggrieved persons claiming valid marriage, at the hands of police at the behest of the parents, guardians or other relatives of the bride, is found to be voiced and by filing such petitions either the relief of quashing of FIR or issuance of a writ in the nature of prohibition is usually prayed for. Even, in certain cases upon a cursory inquiry it divulges that despite clear legal provisio ns specifying the eligibility with regard to age limit of the parties to the marriage, the acclaimed marriage is found as having been contracted by violating the provisions of the Child Marriage Restraint Act, 1929 (hereinafter to be referred as " the Act 1929 "). It has further been noticed that some of the Nikah Khawans/Nikah Registrars instead of requiring any proof of age from the parties to the marriage which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School leaving Certificate, medical certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council etc. out of their petty temptations knowingly that one of the parties to the marriage is minor, proceed to rely upon a self- declaration of the concerned party in respect of his/their age at the time of registration of their marriage. Similarly , it has also come on surface at a number of occasions that despite a clear legal requirement of tilling in each column of the Nikahnama individually , with specific answer of the parties to the marriage, the Nikah Registrar proceeds to place a single long vertical line against all or some of the columns which amounts to an offence liable to be punished under the law. Such criminal lapse/acts of the Nikah Registrar or the parties, as the case may be, despite being a source of breach of rights of the parties to the marriage are randomly ignored. The unscrupulous elements while taking advantage of such omissions or lapses try to exploit the situation and create serious future complications for the others. It has also been observed with concern that the relevant Authorities i.e. Director General Local Government and Community Development, Lahore or any other person authorized in this behalf have not bothered to issue specific S.O.Ps. containing mechanism or guidelines to avoid such violations to the provisions of the Act 1929 and the MFLO. 5. During the hearing of even instant case, while perusing the documents appended with this petition, it has been noticed that the Nikah Registrar has either left some of the columns of the Nikahnama blank or has not accurately filed in the same with requisite/specific reply of bride or the bridegroom, thus, in view of this criminal negligence, a notice was issued to Director , Local Government, Multan vide order dated 15.10.2 019, who when confronted with the above noted criminal negligence and failure on the part of Nikah Registrar , sought time for obtaining instructions from the Director General, LG and CD, Punjab, Lahore. Learned Law Officer was also directed to establish contact with the Secretary , LG and CD, Punjab Lahore and submit his report before this Court in this regard on 29.10.2019. The Director , LG and CD Department, Multan Division, Multan in view of his correspondence with the D.G. LG and CD, Punjab Lahore, under the subject of "Issuance of Standard Operating Procedure (SOP) for taking punitive action against Nikah Registrars violating the basic law" who, vide his letter No.LG and CD/AD(CD)13/19 (CRMS Complaints )/P-II dated Lahore, 23.10.2019 clarifying the legal position and providing guidelines approved by the competent authority on the subject matter to all the Directors in the Punjab, the same has been made part of the record and shall be discussed and commented upon in the later part of the judgment. 6. Under the Muslim Law the competence of a girl to enter into a contract of marriage is dependent on the attainment of puberty . Puberty is presum ed at the age of fifteen years. According to Fatawa Alamgiri' , Page-93 of Vol-V, the lowest age of puberty according to its natural signs, is 12 years in males and 9 years in females and if signs do not appear , both sexes are held to be adult on the completion of their age of 15 years. The principle which after copying out from Fatawa Alamgiri and Hedaya can be deduced is that a girl even having not attained puberty but possessing discretion and sufficient understanding can enter into a contra ct of marriage however for its operation it will be dependent on the cons ent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining of majority and ratifying the contract. According to Paragraph-274 of Mahomedan Law, "when a marriage is contracted for a minor by any guardian other than the father or father's father , the minor has the option to repudiate the marriage on attaining the puberty . This is technically called the "option of puberty" (Khyar-ul-bulugh). The right of repudiation of the marriage is lost, in A the case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate
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without reasonable delay . The Dissolution of Muslim Marriages Act, 1939, however , gives her the right to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated. But in the case of a male the right continues until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation." 7. I feel it expedient to observe that unfortunately due to fissiparous and rival political, social and religious forces, the resultant anarchy besides other factors also paved the way for the colonization of Sub-Continent. Despite scathing criticism, for many valid reaso ns for the systemic loot and plunder , of the resources of Indian Sub- continent, which at the relevant time were comprised over 1/3rd wealth of the world, initially by the barrens running the Company Bahadar and thereafter by the British Government itself. The society at the relevant time was also flowing many sordid traditions including child marriage because of certain socio-economic reasons and their education backwardness. It cannot be denied that the Indians of all colour and creed, had however benefited from the modern education system, innovative scientific research based technical knowledge which was introduced by their Colonial Masters. The modern education system brought a positive change in every sphere of life of the natives. 8. It may be necessary to express that the legislature despite being nicest one was comprised over forward looking men of wisdom. While adopting a progressive approach for relieving the society from the harmful effects of prevalent child marriage, it indeed undertook a commendable legislative business in the form of the Child Marriage Restraint Act, 1929 (Act XIX of 1929). It appears that without directly meddling with above described position discussed in para No.6 of this judgment regarding which age limit of marriage under the Muslim Personal Law, the provisions of Act 1929 have expediently and objectively been framed to hold male adult i.e. marriage contracting party about 18-years of age liable for punishment along with the other persons including the parents and guardians, who perform, arranged, conduct or direct any child marriage. A deterrence of punishment for violation of the provisions has been created. It is quite vivid that the act does not hold the minor responsible for violation of the provision of the Act 1929. It also does not invalidate the marriage itself. It only, as discussed above, holds certain categories of persons liable for the violations of the provisions of the Act 1929. Under Section 2(a) of Act 1929, child has been defined 'a person, if male, under 18 years of age and if female, under 16 years of age. In sum and substance, except the minor , the Act 1929, holds three persons accountable for violating its provisions i.e:- (i). Contracting party; (ii). Promoter of the marriage; (iii). Guardians It is a matter of great concern that despite ninety years of the promulgation of the Act, 1929, its objectives could not have been achieved satisfactorily due to certain lapses or loopholes in the mechanism for its enforcement. The children are still being lured by unscrupulous elements through deceitful means to abuse their innocent souls. It is also relevant to point out that although under The Majority Act, 1875 (Act XX of 1875) (hereinafter known as 'Majority Act') a person is said to attain majority at the age of eighteen years. However, in case of appointment of his guardian by the Court, the age of majority of such a Ward is twenty-one years. The application of the above provisions has however been excluded insofar as the operation of personal law in respect of marriage, divorce and dower is concerned. Every other person, subject to as aforesaid, domiciled in Pakistan shall be deemed to have attained his majority on completion of his age of eighteen years, and not before. A Muslim though under 18 years on attaining puberty , can bring a suit relating to marriage, dower and divorce without next friend. Nothing is more precious in the world than human beings. Human resource is most important and valuable as compared to other sources in the universe. Child is the future asset of a family , a nation and the world at large, respectively . 9. Normally , the marriages in early age are likely to be higher in rural areas due to less development as compared to more developed urban areas. Lesser or fewer educational and economic opportunities reduce the female access to education and restrict their involvement in sales and services as compared to their urban counterparts. Poverty and cultural barriers put constraints on women from having their say regarding their marriage decisions specifically in the traditional and parochial societies. Early age marriages can have severe consequences to the life of a female
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and pose serious personal and social problems ranging from health issues to social mobility . Women who marry earlier in age are more likely to bear child at younger age and are more exposed to prolong domestic violence. Similarly , women marrying at younger ages tend to have less education, less economic opportunities, lower level of social mobility and poor access to health services. The denial of opportunity for an adequate education would amount to denial of opportunity to succeed in life. Early marriage does not only restrict women from socio-economic opportun ities, but also affects their reproductive health status such as forced sexual relations, early and complicated pregnancies, higher fertility rate and large family size formation. There is almost a consensus that fertility and age at the time of marriage have an inverse relationship, lower the age at marriage, higher will be the fertility rate as lower age at marriage lengthens the reproductive span of a girl. In general, early age marriage of females not only exacerbates the poor socio-economic development by depriving them of education, social freedom, good health, but also their personal development and well- being. While talking about the consequences of early age marriage at broader sense, it not only brings socio-economic underdevelopment at individual level but also hampers the development process of a region or a country . Therefore substantial part of human population, the women, remain uneducated or less educated, unemployed and underprivileged with poor health measures and no decision making power . It also increases the gender inequality and putting higher value on the boys than girls in the society . Early marriage ensues into numerous adverse health consequences. Physically , child bride has small pelvis and are not prepared for childbearing . It results in deliveries that are too early or late. This exposes them to different complications. High mortality rates are due to postpartum hemorrhage, sepsis, obstructed labor and HIV transmission. Besides that, they are also at risk of acquiring Sexually Transmitted Infection and Cervical Cancer . To prove their fertility , they go for high frequency and unsafe intercourse with their old age polygamous spouse. Conjointly , the adolescent mother produces less breast milk or colostrum, which makes their child susceptible to infection. After marriage, girls are brought to their husband's place, where they have to play the role of wife, domestic worker , and ultimately a mother . Their husband may also be polygamo us due to which they end up in burdensome situation and feel isolated, rejected, and depressed. Literature sugge sts that age differences and the poor communication may lead to divorce or separation. Also, their children are more likely to report a stressful life and notably more psychiatric disorders. Socially child brides are unable to look after their families because they have less authority and control over their kids, and have less capability to becom e decisive about their housing management, nutrition and health care. With that most of wives have never gone to school or left school early , making them dependent on their spouses in practical life. After the above discussion, it will be beneficial to examine certain provisions of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution'), which have a close nexus with the subject. According to the preamble of the Constitution which inter alia says that "Wherein shall be guaranteed fundamental rights, including 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 so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity". Now, therefore, we, the people of Pakistan , ---------------------------------------------- ---------------------------------------------- ---------------------------------------------- --------------------------------------------- Do hereby , through our representative in the National Assembly , adopt, enact and give to ourselves, this Constitution . In the case reported as " Ismaeel v . The State" (2010 SCMR 27 ), it has been observed as under:- "It is settled law that preamble and object is always be kept in mind by interpreting the provisions of the Act on the well-known principle that preamble is key to understand the Act. According to the Chief Justice Dyer, preamble is
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the key to open the minds of the makers of the Act, and the mischief of which they intend to redress. See Stowel v. Lord Zouch (1965) I Plowd...... It is settle d principle of law that Act must be read as an organic whole while reading the Act in question as an organic whole then it casts heavy duty upon the Courts to examine the evidence on record and decide the cases keeping in view the object and mandate of the provision of the said Act. ..." It may be proper to refer here Article 9 of the Constitution, which says that 'No person shall be deprived of life or liberty save in accordance with law' it has been interpreted by the Superior Courts in plethora of judgments while enlarging comprehensively the word 'life' with a variety of shades emphasized that the said Article does not merely protect the right to 'exist or 'live' but it also encompasses the idea of leading of a meaningful and dignified life with a minimum standard of living. In Ms. Shehla Zia and others v . WAPDA (PLD 1994 SC 693 ) it has been held that:- "The word 'life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country , is entitled to enjoy with dignity , legally and constitutionally . It is now well established that right to life as envisaged by Article 9 of the Constitution includes all those aspects of life which go to make a man's life meaningful, complete and worth living. In the case of Employees of Pakistan Law Commission v. Ministry of Works (1994 SCMR 1584), it has been laid down that Article 9 of the Constitution which guarantees life and liberty according to law, is not to be construed in a restrictive manner . Life has larger concept which include the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights." Article 25-A of the Constitution provides as under:- Right to Education. The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law'. In case of "Bushra Jabeen and 367 others v. Province of Sindh through Chief Secretary and others" (2018 MLD 2007 ), the co-relation between Articles 9 and 25-A of the Constitution has beautifully been maintained in the following words:- It needs no reiteration that right to life includes right to education, therefore, it is one of the Fundamental Rights of every citizen of Pakistan, whereas, in terms of Article 25-A of the Constitution of Islamic Republic of Pakistan, 1973, it has now become the duty of the State, to be performed through Government(s), to provide free and compulsory education to all the children of the age of five to sixteen years in such a manner as may be determined by law ." It will be relevant to mention that in terms of above Article, Punjab Free and Compulsory Education Act, 2014 (Act XXVI of 2014) has been promulgated. Islam is the most progressive religion. It has laid more emphasis on the importance of learning and research than every other religion. Besides individual efforts, the atmospheric support is sine-qua-non for acquiring scholarship. The education enhances the consciousness and sharpens the vision of the humans. Being a substantial portion of population, women cannot be kept out of the main stream of the national life for the progress of any society and development of a country . In case reported as "Liaqat Hussain and others v. Federatio n of Pakistan through Secretary , Plan ning and Development Division, Islamabad and others" (PLD 2012 Supreme Court 224) it has been held as under:- ----Art.25-A---Right to education---Education plays an important role in the successful life of an individual--- Generally , education is considered to be the foundation of society which brings economic wealth, social prosperity , political stability and maintaining healthy population---Further progress of society is stopped in case of deficit of educated people---Educated people enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries---Islam is a scientific religion emphasizing on the need of scientific inquiry---Need, purpose and kinds of educati on and as under the mandate of Quran and Ahadith, elucidated. ----Arts. 270AA(8), (9), 25-A, 29, 7, 37(a) & 184(3)---Constitutional petition---Right to education---Duty of State-- 'State"---Definition---By virtue of Art.270 AA(8)(9) of the Constitution [as substituted by Constitutional (Eighteenth Amendment) Act, 2010] the Concurrent Legislative List was omitted in pursuance whereof projects being run by the Federal Government in the Provinces, including Basic Education Community Schools were decided to be wound
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up---While assailing the proposal of such winding up prayer of the petitioners (fathers of students and employees of the Projects) was that the proposed action on the part the authorities of closing down "Establishment and Operation of Basic Education Community Schools" be declared to be without lawful authority and of no legal effect and be also declared to be in violation of Art.25-A of the Constitution and the proposed act of winding up of the National Commission of Human Resources may be held to be entirely unconstitutional and of no legal effect so as to allow the Commission to continue to perform the positive duty of providing basic human rights to the citizens of Pakistan, under Art.7 of the Constitution, and that the State including the Federal and the Provincial Governments, therefore, under Art.25-A of the Constitution, the Parliament, in view of the definition of the 'State' had not absolved the Federal Government from conferring the Fundamental Rights upon the children---S tate, in terms of Art.37(a) of the Constitution, shall form such policies on the basis of which State shall promote, with special care, the educational and economic interest of backward classes or areas---Held, under Art.29 read with Art.25-A of the Constitution the Fundamental Rights were required to be enforced 'by the State---Especially in view of Art.25-A of the Constitution, it had been made mandatory upon the State to provide the education to the children of the age of 5 to 16 years." No country can make progress without maintaining a nice balance between its population and resources. The august Supreme Court, in a Human Rights Case No. 17599 of 2018, regarding alarming high population growth rate in the country , reported as 2019 SCMR 247 , has held as under:- "As of 2017, Pakistan is ranked as the fifth most populous nation in the world, with a population of over 200 million. While all nations and economies rely on population growth and a creation of future younger generations, such growth must be sustainable and proportionate to the resources available. Approximately 14,000 babies are born in Pakistan which is already struggling to feed, educate and provide employment for its existing population. Pakistan has experienced unchecked population growth since its creation in 1947. From 1998 (the previous comprehensive census) to 2017, Pakistan's population has increased by 57%, with the addition of approximately 76 million people to the population. Projected growth trends from the United Nations suggest that if this population growth rate does not slow considerably , Pakistan can expe ct to have its population increase by 50% resulting in an estimated 306 million people, surpassing the United States, Indonesia, Brazil, and…
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