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Official Citation: Muhammad Riaz VS Learned ASJ, Islamabad (IHC)
Court / Jurisdiction: Islamabad High Court
Parties: Muhammad Riaz vs Learned ASJ, Islamabad (East) etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as Muhammad Riaz VS Learned ASJ, Islamabad (IHC). In this matter between Muhammad Riaz and Learned ASJ, Islamabad (East) etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Muhammad Azam Khan) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 16-JUL-2025 CASE NO: Writ Petition-2494-2025 CITATION: 2025 IHC 225041 PARTIES: Muhammad Riaz VS Learned ASJ, Islamabad (East) etc. LAW / SECTION: - SUBJECT: Hebeas Corpus, REMARKS: Habeas: Petitioner is a husband who entered into choice marriage and is aggrieved that his in laws have forcefully detained his wife. Seeks recovery of his wife. ============================================================ JUDGMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD W.P. NO. 2494 OF 2025 MUHAMMAD RIAZ
VS
LEARNED DISTRICT & SESSIONS JUDGE, (EAST) ISLAMABAD, ETC.
Petitioner by : Ms. Shumaila Rafique Awan, Advocate. Respondents by : Mirza Irfan Ghazanfar Advocate, for Respondent No. 3 and 5. Ms. Ramsha Khalid, State Counsel.
Assisted by : Ms. Amna Danial Khawaja, Judicial Law Clerk. Date of hearing : 11.07.2025
MUHAMMAD AZAM KHAN, J. 1. Through the instant Writ Petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”), Muhammad Riaz (“Petitioner”) has challenged the Order dated 23.06.2025 (“Impugned Order”) passed by the learned District Judge, Islamabad-East (“Respondent No. 1”) whereby petition u/s 491 Cr.P.C for the recovery of detenue namely Mst. Madiha Bibi wife of the Petitioner, has been dismissed. 2. Brief facts of the case as per contents of the petition are that the Petitioner contracted love marriage with Mst. Madiha Bibi (alleged detenue) according to Muslim Family Laws Ordinance on 30.05.2025 at Tehsil Courts Complex Taxila, District Rawalpindi, against the whim and will of the Respondents No. 2 to 8. On 21.06.2025 at about 03:30 PM, Respondents No. 2 to 8 came to the house of the Petitioner by trespassing and forcibly took away the detenue with them. The Petitioner requested the Respondents No. 2 to 8 to hand over the custody of alleged detenue to him but of no avail. Upon refusal, the Petitioner filed a petition under Section 491 Cr.P.C before learned Sessions Judge, Islamabad-East, which has been dismissed vide Impugned Order. Being aggrieved by the Impugned Order, the Petitioner has filed the instant petition. P a g e | 2 W.P. NO. 2494/2025 3. The learned counsel for the Petitioner has argued that the learned Trial Court did not appreciate the documents submitted by the Petitioner while passing the Impugned Order; that the custody of the alleged detenue is illegal, and if the detenue remains in the custody of the Respondents No. 2 to 8, there is great apprehension to the life, honor and dignity of the detenue; that the Petitioner being husband of the detenue is entitled to reunion with his wife/detenue, but the learned Trial Court while passing the Impugned Order overlooked this important aspect of the case; that the Impugned Order is full of surmises and conjectures and is against the principle of law and criminal jurisprudence. Lastly, learned counsel prayed for acceptance of instant petition, setting aside of the Impugned Order and handing over the custody of the alleged detenue to the Petitioner being her husband. 4. On the other hand, learned counsel appearing on behalf of Respondents No. 3 & 5 argued that the Impugned Order is well-reasoned and does not call for any interference; that the alleged detenue is not in the custody of Respondents No. 2 to 8; that the alleged detenue was not sui juris at the time of solemnization of her Nikkah. Lastly, learned counsel prayed for dismissal of instant petition. 5. I have heard learned counsel for the parties and perused the available record with their able assistance. 6. Upon meticulous examination of the record, it appears that Mst. Madiha Bibi/alleged detenue and the Petitioner contracted marriage on 30.05.2025 at the Tehsil Courts Complex, Taxila, District Rawalpindi. The Nikahnama does not specify the precise date of birth of the alleged detenue; instead, it vaguely records her age as 'almost 18 years'. It is further noteworthy that the Birth Certificate of the alleged detenue, produced by the Respondents, was registered with NADRA on 12.06.2025, subsequent to the solemnization of the marriage. The date of birth of the alleged detenue i.e. 15.09.2009, on the said certificate reflects that she is currently15 years old. In view of the conflicting material on record, the age of the alleged detenue emerges as a disputed question of fact, which necessitates recording of evidence and adjudication by a competent forum of plenary jurisdiction. Consequently, this Court while exercising its Constitutional jurisdiction is not empowered to conclusively decide the question of age. P a g e | 3 W.P. NO. 2494/2025 7. During the course of arguments, reliance was placed by the Respondents upon the judgment reported as “Mst. Mumtaz Bibi v. Qasim and others” (PLD 2022 Islamabad 228), to contend that marriages contracted between a minor and an adult are considered void ab initio, as the same constitute a criminal offence under the Child Marriage Restraint Act, 1929 (“CMRA, 1929”). Furthermore, it was brought to the attention of this Court that the Islamabad Child Restraint Marriage Act, 2025 (“ICRMA, 2025”) has amended the statutory definition of a 'child', raising the minimum age for females from sixteen years to eighteen years, thereby bringing it at par with the age prescribed for males. Prior to this amendment, the threshold age was sixteen years for females and eighteen years for males under the said legislation. 8. On the other hand, the Petitioner whilst resisting the above argument has relied upon “Mst. Bakhshi Versus Bashir Ahmad” (PLD 1970 Supreme Court 323), “Mauj Ali Versus Safdar Hussain” (1970 SCMR 437) and “Muhammad Khalid Versus Magistrate 1st Class and others” (PLD 2021 Lahore 21) in order to assert that the marriage contracted is valid under the Muslim Family Laws Ordinance, 1961 (“MFLO, 1961”), therefore, the Petitioner has the right to recover his wife and protect their lawful union. 9. Before delving deeper to examine the merits and legal intricacies of the present case, it is imperative to first consider the definition of child under the previous as well as the newly amended law. The relevant provisions of CMRA, 1929 are reproduced herein below for ready reference: - 2. Definitions. — In this Act:
(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age; (b) “child marriage” means a marriage to which either of the contracting parties is a child; (c) “minor” means person of either sex who is under eighteen years of age. (Emphasis added)
10. Under the ICRMA, 2025, the amended definitions are as follow: 2. Definitions. — In this Act, unless there is anything repugnant in the subject or context. P a g e | 4 W.P. NO. 2494/2025 (a) “child” means a person male or female who is under eighteen years of age; (b) “child abuse” means as defined under the Islamabad Capital Territory Child Protection Act, 2018, and shall also include the marriage of a child or solemnization of marriage of a child with any person over the age of eighteen years or with another child; (e) “child marriage” means an act of solemnizing marriage or Nikah where both or either of the contracting party to the marriage is a child. (Emphasis Added)
11. A child marriage, in our legal context, refers to a matrimonial union where at least one of the contracting parties is under the minimum legal age prescribed by law, which is 18 years for both males and females under the ICRMA, 2025. While Islamic jurisprudence traditionally permits marriage upon attainment of puberty, present statutory law in Pakistan criminalizes child marriage with an aim to prevent exploitation, abuse, and premature burdening of the minors. Keeping in view the above position, following moot questions have emerged for consideration:
1. Whether a marriage valid under Islamic law/Shariah can be considered void under statutory law, particularly in light of the ICRMA, 2025?
2. Whether a marriage contract, wherein both or one party is minor, stands on a distinct footing from contracts governed by the Contract Act, 1872;
3. In presence of ambiguity or legal silence regarding the validity of child marriage under statutory law, can Islamic principles and jurisprudence prevail in determining the legality of such unions?
4. Whether the case of child marriage would fall within the definition of Section 375, P.P.C., thereby constituting "rape"?
5. Whether the Court is obligated to engage Child Protection Officers under the Islamabad Child Protection Act, 2018, to conduct welfare assessment before and/or after determining the custody, care, or the validity of the marital union involving a minor? 1. Whether a marriage valid under the Islamic law/Shariah can be considered void under the statutory law, particularly in light of the Act of 2025? 12. Child marriage is deemed valid under the Shariah/Islamic Jurisprudence on the basis of consent and attainment of puberty, however, the same is criminalized P a g e | 5 W.P. NO. 2494/2025 under the ICRMA, 2025, if the marriage is contracted under the age of eighteen. Therefore, such a marriage contracted inter se both or either of the contracting party under eighteen is not void under the Shariah, it is nonetheless punishable by law and treated as contrary to public policy, especially where it undermines the minor’s physical, emotional, and educational development. By adopting a progressive legislative approach aimed at mitigating the adverse societal impact of child marriages, the legislature had enacted the CMRA, 1929, which represents a laudable step toward child protection. The provisions of the CMRA, 1929 have been carefully and objectively structured, wherein penal consequences have been imposed upon the adult contracting party (i.e. an individual above 18 years of age), as well as upon other individuals including inter alia the parents, guardians, or facilitators who help arrange, solemnize, conduct, or cause a child marriage to take place. The ICMRA, 2025 establishes a punitive deterrent for the contravention of its provisions. It is manifestly clear that the legislation does not attribute any culpability to the minor party to the marriage. It is pertinent to mention herein that the ICMRA, 2025 does not render the marriage itself void; instead, as elaborated above, it confines criminal liability to specific categories of individuals responsible for the commission of a child marriage. As marriage is governed under MFLO, 1961, Dissolution of Muslim Marriages Act, 1939 and the West Pakistan Family Courts Act, 1964 in Pakistan, the provisions of CMRA, 1929 do not override them. The latter being a separate law punishes those who are responsible for an underage marriage, however, the ICMRA, 2025 does not nullify the marriage itself. Reliance in this regard is placed upon judgement titled “Nasreen Bibi Versus Station House Officer and others” (2024 P Cr. LJ 2058), wherein the Lahore High Court, whilst keeping in view the CMRA, 1929, commented on the legality and validity of the marriage contracted by observing that: “21. The Act of 1929 applies to all citizens of Pakistan regardless of religion. Since Respondent No.3 has married a minor, he may be prosecuted under the Child Marriage Restraint Act. The case of Mst. Bakhshi v. Bashir Ahmad (PLD 1970 SC 323) is quite instructive although it pertains to a Muslim marriage. In the said case a 15-year- old girl, whose mother had remarried and whose father had died when she was quite young, had contracted a marriage of her own will. The mother lodged FIR accusing the daughter's husband of kidnapping her. After examining her medically, the doctor estimated the girl's age to be between 16 and 17 years old. The husband moved an application under P a g e | 6 W.P. NO. 2494/2025 section 491 Cr.P.C. before the High Court to obtain his wife's release. The High Court released the young girl and allowed her to choose who she wanted to live with. The Hon'ble Supreme Court upheld the decision noting that the husband or other persons who helped to solemnize the marriage could be charged with the crime but the marriage itself would not be void if a girl under the age of 16 married in violation of the Act of 1929.” (Emphasis added)
13. Furthermore, the contention that this Court should not recognize the marriage between the Petitioner and Mst. Madiha Bibi, as it is in violation of the ICMRA, 2025, has no force. The Verse 6 of Surah Al-Nisa lays down two preconditions when contracting marriage, i.e., Majority or Bulugh; and Mental maturity or Rushd. “And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them.” In “Mauj Ali Versus Syed Safdar Hussain Shah and another” (1970 SCMR 437), the august Supreme Court of Pakistan held: "Mr. A.G. Choudhri, learned counsel for the Petitioner, has contended that the High Court should not have accepted the application filed by the Respondent under Section 491, Cr.P.C. Mst. Musarrat being a minor girl should have been ordered to go with her father. He further contended that as a case was pending against Respondent No. 1 under Sections 363/366, P.P.C., the High Court should not have entertained an application under Section 491, Cr.P.C. The contention of the learned counsel has not impressed us. It is not disputed that Mst. Musarrat has attained the age of puberty and she had married with Respondent No.1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Child Marriage Restraint Act and, therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, Respondent No.1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband." (Emphasis added)
The above view was reiterated in “Mst. Bakhshi Versus Bashir Ahmad and another” (PLD 1970 SC 323) and followed in “Tahira Bibi Versus Station House Officer and others” (PLD 2020 Lahore 811), “Muhammad Safeer Versus Additional Sessions Judge (West) Islamabad and others” (PLD 2018 Islamabad 385), “Mst. Shazia and another Versus S.H.O. Police Station Kumb, P a g e | 7 W.P. NO. 2494/2025 District Khairpur and others” (2011 Y L R 493), “Allah Bakhsh Versus Safdar and others” (2006 YLR 2936), “Ghulam Qadir Versus the Judge Family Court, Murree and another” (1988 CLC 113), “Zafar Khan Versus Muhammad Ashraf Bhatti and another” (PLD 1975 Lahore 234), “Ghulam Hussain Verses Nawaz Ali and another” (1975 P Cr.LJ 1049), and “Mushtaq Ahmad Versus Mirza Muhammad Amin and another” (PLD 1962 (W. P.) Karachi 442).
14. The validity of the marriage, contracted with the minor, has not been targeted in the ICMRA, 2025; rather the latter has been enacted merely to punish the party contracting, arranging and/or solemnizing a marriage with a child. Reliance in this regard is further placed upon “Allah Nawaz Versus Station House Officer, Police Station Mahmood Kot District, Muzaffargarh” (PLD 2013 Lahore 243) in order to reiterate a settled principle. The relevant portion in the judgement is reproduced hereunder: “In this respect reference may be made to the case "MST. HAJRA KHATOON and another v. STATION HOUSE OFFICER, POLICE STATION FATEH JANG, DISTRICT ATTOCK and 2 others" (PLD 2005 Lahore 316), wherein it has been held that "Nikah/Marriage contracted by a woman, not having attained the age of majority, as defined in law, but having attained puberty as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void." Furthermore, even the Child Marriage Restraint Act (XIX of 1929), does not declare marriage of a girl who is pubert but under the age of sixteen years to be invalid or void. Had the legislators any intent to declare the marriage of a girl below the age of majority invalid, a specific clause could be inserted in the Child Marriage Restraint Act (XIX of 1929). In the absence of any such specific provision in the Act, ibid, it would be highly unjust to import a negative intent which was not considered by the legislators at the time when said law being formulated.” (Emphasis added)
Thus, the ICMRA, 2025 (or previously the CMRA, 1929) does not lay down that the marriage so performed will be invalid, nor has it ever been held that such a marriage will be void ab initio. 15. This Court, keeping in view the dictum laid down by the apex Courts of Pakistan, is unable to agree with the findings in Mst. Mumtaz Bibi (PLD 2022 Islamabad 228), wherein the marriage contracted in violation of CMRA, 1929 is to be considered void ab initio. The concept of “attainment of puberty” is not confined solely to the domain of Muslim Personal Law in Pakistan; rather, it finds express recognition within the statutory framework, thereby blurring the lines P a g e | 8 W.P. NO. 2494/2025 between personal and codified law. For instance, Section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 defines an “adult” as a male who has attained the age of eighteen years or a female who has attained sixteen years, or in either case, has attained puberty. This statutory reference to puberty, as a determinant of legal majority in certain contexts, gives rise to an interpretive overlap between personal law and general legislative principles. Similarly, Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 explicitly acknowledges the right of a female to repudiate a marriage on attaining the age of sixteen years, provided the marriage was not consummated, thereby linking legal agency with both age and the status of puberty. 16. This statutory incorporation of the concept is further affirmed by judicial interpretation. In “Tahira Bibi v. SHO and others” (PLD 2020 Lahore 811), the Lahore High Court reaffirmed the doctrinal basis of khiyar-ul-bulugh (option of puberty), noting that a female who has attained puberty may repudiate a marriage contracted on her behalf during minority, provided the repudiation occurs before the age of eighteen and the marriage remains unconsummated. Thus, while the notion of puberty originates in Muslim Personal Law, its integration into statutory provisions like the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the Dissolution of Muslim Marriages Act, 1939 demonstrates that it has become embedded within Pakistan’s broader legal framework, making it a legally significant criterion beyond personal law alone. 17. It has been overserved that the legal framework surrounding child marriages in Pakistan reveals a deep-rooted contradiction between personal law (incorporated into certain laws as mentioned above) and statutory enactments. On one hand, under Islamic jurisprudence, a marriage contracted with a minor who has attained puberty and consents to the union is deemed valid. On the other hand, the ICMRA, 2025, while stopping short of rendering the marriage void, imposes penal consequences on the adult party and facilitators of a child marriage. This bifurcation, where the marriage is considered valid under one body of law but criminal under another, creates a legal paradox that risks frustrating the very objective of the statute, which is to act as a deterrent against child marriages and protect minors from premature unions that could harm their physical, emotional, and educational well-being.
P a g e | 9 W.P. NO. 2494/2025 18. If child marriages were to be rendered void ab initio, complex issues of legitimacy of children born out of such unions in certain cases and recognition of spousal rights would arise, leading to significant social, legal, and procedural complications. However, by validating such a marriage even though the statute criminalizes the act, it would inadvertently weaken the deterrent effect of the ICMRA, 2025. This duality creates legal uncertainty and provides room for parties to circumvent protective legislation under the guise of religious permissibility, thereby undermining the legislative intent and weakening enforcement mechanisms aimed at eradicating child marriage. In light of these contradictions, it is recommended that the Federal Government undertake a harmonization exercise to reconcile personal law with child protection legislative framework.
2. Whether a marriage contract, wherein both or one party is minor, stands on a distinct footing from contracts governed by the Contract Act, 1872:
19. Moreover, Section 11 of the Contract Act, 1872 stipulates that a person is competent to contract if he/she has attained the age of majority as prescribed by the law applicable. This necessitates reference to Section 3 of the Majority Act, 1875, which provides that every person domiciled in Pakistan shall be deemed to have attained majority upon reaching the age of eighteen years. However, in instances where a guardian has been appointed by a Court for the person or property of a minor, or where the Court of Wards has assumed superintendence over the minor's property, majority is deemed to be attained upon completion of twenty-one years of age. These provisions are subject to Section 2 of the Majority Act, 1875 which reads as under:-
2. Savings: - Nothing herein contained shall affect: (a) the capacity of any person to act in the following matters namely, marriage, dower, divorce and adoption; (b) the religion, religious rites and wages of any class of Her Majesty's subjects in Pakistan; or (c) the capacity of any person who before this Act comes into force has attained majority under the law applicable to him.
Notably, Section 2 of the Majority Act, 1875 expressly excludes from its ambit family matters pertaining to marriage, divorce and dower. A harmonious reading of Section 11 of the Contract Act, 1872 and the relevant provisions of the Majority Act, 1875 reveals that these enactments do not govern a person’s legal capacity P a g e | 10 W.P. NO. 2494/2025 in matters such as marriage, which continue to be regulated by MFLO, 1961, Dissolution of Muslim Marriages Act, 1939 and Family Courts Act, 1964. Reliance in this regard is placed on judgement cited supra (2024 P Cr. LJ 2058), wherein the Lahore High Court observed the following: “25. Section 2 of the Majority Act expressly excludes marriage and divorce from its application. A combined reading of this provision and section 11 of the Contract Act would show that they have no bearing on the capacity of a person to act in some matters, including marriage, which are left to be governed by the individual's personal law - unless the Parliament has enacted a special law in that regard. As a result, the CMA and the Divorce Act of 1869 govern Christian marriage and divorce in Pakistan. The Child Marriage Restraint Act, 1929, does not override them. It is a separate law that punishes those who are responsible for an under-age marriage but does not nullify the marriage itself.” (Emphasis added) 20. Furthermore, the question of what amounts to consent for purpose of entering into a marriage contract was addressed by the learned Federal Shariat Court in “Muhammad Aslam Versus The State” (2012 PCr.LJ 11) wherein it was held that a consenting adult is a person who has come of age responsible enough to understand the consequence of marriage and the responsibilities that it entails. There relevant portion is reproduced as under: “10. Marriage involves a consent which is quite distinct in definition and in differentiation from all types of other consent, e.g., common consent, mutual consent, or implied or express consent. Consent for marriage is eloquent and declaratory, being more specific and expressive. Consent for marriage has deeper and wider implications for criminal, civil, and family laws, e.g., inheritance, etc. Therefore, free consent, for marriage, does not mean just acceding to or saying 'yes' to the circumstantial or situational dictate. While analyzing quality, value or worth and features of such a free consent, following need to be considered: Ability of exercising free choice; capacity (legal capacity: not only sane, but mature mind, i.e., not only puberty, mere majority but age of responsive and conscious consent); capability to use that capacity; depending upon capacity, impediments to or assistance available for application of mind e.g., availability of…
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