Case Summary & Legal Holding

This judicial decision was delivered by the FEDERAL-CONSTITUTIONAL-COURT. The matter involves proceedings between SHAHBAZ MASIH and ADDITIONAL SESSIONS JUDGE, LAHOREHonorable Justice Syed Hasan Azhar RizviAbdul Hameed Rana,Ch. Abdul Khaliq Thind, officially reported as 2026 PLD 138. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

P L D 2026 Federal Constitutional Court 138 Present: Syed Hasan Azhar Rizvi and Muhammad Karim Khan Agha, JJ SHAHBAZ MASIH ---Petitioner Versus ADDITIONAL SESSIONS JUDGE, LAHORE and others ---Respondents F.C.P.L.A. No. 536 of 2025, decided on 3rd February, 2026. (Against the order dated 17.10.2025, passed by the Lahore High Court, Lahore in Writ Petition No. 61396-H of 2025). (a) Muslim Family Laws Ordinance (VIII of 1961)--- ----Ss.1(2) & 12---Child Marriage Restraint Act (XIX of 1929), Preamble---Constitution of Pakistan, Arts.175F(1)(c), 189 [as amended by the Constitution (Twenty-Seventh Amendment) Act (XXXII of 2025)] & 268---Civil Procedure Code (V of 1908), S.11---Interfaith marriage between Muslim male and Christian female---Permissibility---Female claiming conversion to Islam---Essentials and proof---Petitioner sought recovery of his daughter alleging that her marriage with respondent No.6 was void because she was a minor Christian girl and was being kept in illegal custody---The courts below dismissed the matter on the basis of her own statements that she had married of her free will---Issue requiring determination in the present matter was whether such custody could be treated as illegal despite dispute about age and validity of marriage? ---Held: The Christian girl made a formal declaration of embracing Islam---Undoubtedly, the certificate was issued by the authority two days after the solemnization of her marriage, however, it sufficiently verified and confirmed her earlier declaration made at the time of her marriage with respondent No. 6---The aforesaid declarations were adequate to conclude that the Christian girl had fulfilled all the prerequisites for embracing Islam---Any further probe into the matter, or an attempt to ascertain the true nature of her prior disbelief would have amounted to unwarranted intermeddling, unjustifiable on any ground---She was no longer a Christian by faith and, as such, her marriage was validly solemnized under the Ordinance, 1961---Documents advanced by the petitioner could not be relied upon as the sole basis for concluding that her daughter was born on 07.10.2012, particularly when she was physically present in the court and appeared to be of a more advanced age---High Court was fully justified in holding that her custody with her husband could not be termed illegal or unlawful, particularly in the absence of any declaration of invalidity by a competent court of law---Leave was refused and petitions were dismissed, in circumstances. (b) Islamic law--- ----Marriage---Interfaith marriage---A Muslim male may validly contract marriage with a Christian woman (being from the Ahl al-Kitab). Mrs. Marina Jatoi v. Nuruddin K Jatoi and others PLD 1967 SC 580 and Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 ref. (c) Constitution of Pakistan--- ----Art.189 [as amended by the Constitution (Twenty-Seventh Amendment) Act (XXXII of 2025)---Judgments of the Supreme Court---Whether binding upon Federal Constitutional Court?---Upon the establishment of the Federal Constitutional Court and the conferment upon it of final and binding authority in all matters, particularly constitutional matters, the precedential hierarchy stands constitutionally restructured---Accordingly, the binding force contemplated under Article 189 must be understood as operating subject to the overriding authority of the Federal Constitutional Court---The supremacy of constitutional adjudication now vests in the Federal Constitutional Court, and all courts, including the Supreme Court of Pakistan, are bound by its pronouncements---However, the judicial discipline demands that precedent be reconsidered, not ignored and disregarded in silence, and that continuity be preserved except where departure becomes a constitutional necessity---Therefore, the Federal Constitutional Court would ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values---Any departure from earlier Supreme Court precedent would be reasoned, express, and principled. (d) Muslim Family Laws Ordinance (VIII of 1961)--- ----S.1(2)---Marriage between a Muslim male and Christian female---Registration of such under Muslim law---Impermissibility---Such marriage cannot be solemnized and registered under the Muslim Family Laws Ordinance, 1961, as the Ordinance, 1961 only applies to Muslim citizens of Pakistan. (e) Islamic jurisprudence--- ----Religion---Conversion---Inquiry---Proof and sufficiency---Embracing Islam---Essentials---Proof---If a person openly professes belief in or adherence to a particular faith, no further inquiry or evidence is ordinarily required to verify its genuineness---In Islam, no specific rituals are required to be performed by a non-Muslim before he or she is regarded as having renounced a previous faith and embraced Islam---What is required is a declaration to that effect and the recitation of the Kalma, along with belief in the Oneness of Allah, the Finality of the Prophethood of the Holy Prophet Muhammad (peace be upon him), and the Holy Qur an. Mst. Zarina and another v. The State PLD 1988 FSC 105 and Tariq Masih v. The State 2004 PCr.LJ 622 ref. (f) Child Marriage Restraint Act (XIX of 1929)--- ----Preamble---Constitution of Pakistan, Art.268---Muslim Family Laws Ordinance (VIII of 1961), S.12---Child marriages---Restriction---Statutory framework---The Act of 1929 is considered to be the first enactment on the subject, in the sub-continent, to restrain the solemnization of child marriages---The Act of 1929 is one of the few laws on the statute books that were introduced by the founder of Pakistan, Mohammad Ali Jinnah, while he was a member of the British India Legislative Assembly---It was enacted on 01.10.1929, to restrain the solemnization of child marriages and applied to the whole of India, with effect from 01.04.1930---The Act of 1929 remains in force in Pakistan, being protected under Article 224 of the Constitution of 1956, Article 225 of the Constitution of 1962, and Article 268 of the Constitution of 1973---It applies to both Muslim and non-Muslim citizens of Pakistan---The term Child was originally defined in the Act of 1929 to mean a person who, if a male, is under 18 years of age, and if a female, is under 14 years of age ---Subsequently, the Muslim Family Laws Ordinance 1961 (VIII of 1961), S. 12 raised the age of a girl child in the Act from 14 to 16 years to the extent of Muslim citizens. Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 (W.P.) Kar. 442; Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323; Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437; Nasreen Bibi v. Station House Officer and others 2024 PCr.LJ 2058; Muhammad Khalid v. Magistrate 1st Class and others PLD 2021 Lah. 21; Muhammad Azam v. the State and another 2018 PCr.LJ Note 175; Muhammad Safeer v. Additional Sessions Judge (West) Islamabad PLD 2018 Isl. 385; Allah Nawaz v. Station House Officer PLD 2013 Lah. 243; Allah Bakhsh v. Safdar and others 2006 YLR 2936; Ghulam Qadir v. The Judge Family Court, Murree 1988 CLC 113 and Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049 ref. (g) Interpretation of statutes--- ----Where the legislature intends to alter or abrogate a settled personal law, it must do so in clear and unequivocal terms---In absence of any explicit statutory provision invalidating the marriage itself, the legal status of such a marriage remains unaffected. (h) Civil Procedure Code (V of 1908)--- ----S.11---Res judicata---Finality of judgments---Principle---A judgment not challenged before a higher forum would attain finality and as such the determination made would operate as final between the parties on the well-known principle of res judicata. Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 ref. Abdul Hameed Rana, Advocate Supreme Court for Petitioner along with Petitioner. Ch. Abdul Khaliq Thind, Advocate Supreme Court along with Respondent No. 6 and Mst. Maria, daughter of the petitioner Tehseen, SHO/Inspector, Muhammad Arshad and Naveed, Sub-Inspectors for Respondents. Date of hearing: 3rd February, 2026. JUDGMENT SYED HASAN AZHAR RIZVI, J.---The petitioner has filed the present petition under Article 175F(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973 ( Constitution ), to impugn the legality of the order dated 17.10.2025 passed by the Lahore High Court, Lahore ( High Court ), whereby a writ petition filed by the petitioner under Article 199 of the Constitution, challenging the order dated 09.10.2025 passed by the Additional Sessions Judge, Lahore ( ASJ ), was dismissed. By the said order, the ASJ dismissed the petition filed by the petitioner under section 491 of the Code of Criminal Procedure, 1898 ( Cr.P.C. ), seeking the recovery of his daughter, the alleged detenue. 2. The background of the present controversy is that the petitioner lodged F.I.R. No. 5144/2025, dated 30.07.2025, under sections 363/365-B of the Pakistan Penal Code, 1860 ( P.P.C. ), at Police Station Nawab Town, Lahore, regarding the alleged kidnapping of his daughter, namely Maria Bibi, who, according to the contents of the FIR, went out of the home to take breakfast on 29.07.2025 but did not return thereafter. Later on, the Investigating Officer informed him that the said criminal case had been cancelled, as his daughter had recorded her statement under section 164, Cr.P.C. to the effect that she had contracted marriage with one Shaheryar Ahmad, now respondent No. 6. Being aggrieved by the aforesaid situation, he, on 21.08.2025, filed a writ petition No.47873-H of 2025 under Article 199 read with Article 36 of the Constitution before the High Court for the recovery of his daughter from the alleged illegal and unlawful custody of respondent No. 6, on the ground that she is a Christian and her exact date of birth is 07.10.2012, as reflected in her birth certificate and child registration certificate (available on record). Thus, she, at the time of her alleged marriage, was only twelve years, nine months, and twenty days old, and, therefore, she, being a minor, could not have lawfully contracted marriage with anyone. The High Court dismissed this petition vide order dated 25.08.2025. 3. Alternatively, the petitioner also challenged the legality of the statement dated 31.07.2025 of his daughter, recorded under section 164, Cr.P.C., by a Magistrate, Model Town, Lahore, by filing a criminal revision petition before the Sessions Judge, Lahore. During the course of the hearing of the said revision petition, a Secretary, Union Council, appeared in person and disowned the due execution and registration of the Nikahnama of the petitioner s daughter with respondent No. 6 in his Union Council. On this basis, the revisional court disposed of the matter with a direction to the Investigating Officer to incorporate these facts into the investigation and to proceed strictly in accordance with the law. Based on these observations, the petitioner approached the ASJ, Lahore by filing a petition under section 491, Cr.P.C., seeking the recovery of his daughter from the alleged illegal and unlawful custody of respondent No. 6; however, the same was dismissed by him, vide order dated 09.10.2025. The relevant portion of the said order is reproduced hereunder for ease of reference: 3 ..According to the police record, the alleged detenue Maria Bibi on 31.07.2025 appeared before the learned Area Magistrate Model Town courts Lahore and got recorded her statement under section 164 Cr.P.C that nobody abducted her, nor committed Zina with her and she has contracted marriage with free will with Sheharyar (respondent No. 03 of this petition). Not only this but also Mst. Maria Bibi filed a petition under section 22A/22B Cr.P.C before the learned Ex-officio Justice of peace Lahore by mentioning herself as wife of Shehryar. In that petition also she appeared before the learned Justice of peace and stated that nobody abducted her. In these circumstance two statements of the alleged Maria Bibi made before the courts i.e statement under section 164 Cr.P.C recorded by the learned judicial magistrate and statement made before the learned justice of peace in petition under section 22 A-B are present on the record. In presence of the statements it cannot be inferred that Maria Bibi was in illegal custody of the respondent No.3 Shehryar. Although it has been stated that in a revision petition filed against the recording of statement by the learned judicial magistrate under section 164 Cr.P.C it has been observed by the Revisional Court that Nikka Nama of Maria Bibi with Shehriyar was unregistered and forged. However, in this petition under section 491 Cr.P.C. such question cannot be determined or decided because being a proceedings of interim and summary nature this is within the ambit of section 491 Cr.P.C to determine the validity Nikka Nama. Moreover as mentioned above FIR regarding the incident had already been registered and if Nikka Nama of the Maria Bibi was found forged or she was a minor and the petitioner was unsatisfied with the results of the investigation of that case, he has a remedy of transfer of the investigation of the case Emphasis is supplied. Being aggrieved by the aforesaid order, the petitioner approached the High Court by filing Writ Petition No. 61396/H/2025; however, the same was also dismissed by the High Court through the impugned order. Hence, the present petition. 4. The learned counsel for the petitioner argued that the impugned orders of the High Court and the ASJ are illegal, resulting from misreading and non-reading of the material on record. The alleged marriage of the petitioner s daughter with respondent No. 6 is ex facie void, as she, being a Christian and a minor at the relevant time, could not lawfully contract marriage with the respondent No.6, a Muslim, under law, i.e., the Child Marriage Restraint Act. The purported Nikahnama is forged, a fact corroborated by the Secretary of the Union Council, who disowned its execution and registration. The statement of the minor recorded under section 164, Cr.P.C., cannot override documentary evidence of her age or validate an otherwise void marriage. The custody of a minor girl by a person claiming marriage under a void and unregistered Nikahnama amounts to illegal detention and also violates the fundamental rights guaranteed under Articles 4, 9, 25, and 36 of the Constitution; however, the courts below erred in dismissing the petitions for her recovery without considering this important aspect of the matter. Moreover, the High Court merely relied on its earlier order without addressing subsequent developments, including the revisional court s findings regarding the invalid Nikahnama. It is thus prayed that the impugned orders be set aside and directions be issued for the recovery of the petitioner s minor daughter and her custody to be handed over to the petitioner in accordance with law. The petitioner also placed heavy reliance upon the judgment of the High Court reported as PLD 2025 Lah. 1. 5. The learned counsel for respondent No. 6 contends that the present petition is misconceived, frivolous, and an abuse of the process of law. The alleged detenue is not in unlawful custody, as she voluntarily married respondent No. 6 and recorded her statement under section 164, Cr.P.C., affirming her free will and consent. Such a statement carries significant evidentiary value, which cannot be lightly disregarded. The exact age of the girl is a disputed question of fact, which cannot be conclusively determined in summary proceedings under section 491, Cr.P.C., or constitutional jurisdiction. The petitioner s reliance on the birth certificate and Form-B is misplaced, as their genuineness can only be examined through a proper trial. Allegations regarding the execution or registration of the Nikahnama relate to investigation and do not justify habeas corpus relief. The revisional court only directed the Investigating Officer to record certain facts and made no finding of forgery or illegality against respondent No. 6. The proceedings under section 491, Cr.P.C., are not intended to decide matrimonial disputes or complex questions of fact. The petitioner has an adequate alternate remedy before the family court or other competent forum. The High Court rightly dismissed the writ petition by referring to its earlier order, and no jurisdictional defect, illegality, or perversity is shown in the impugned orders. It is, therefore, prayed that the present petition may be dismissed. 6. We have heard the submissions of the learned counsel for the parties and have perused the material on record, including the police file, with their assistance. 7. The gravamen of the petitioner s case is that the alleged marriage of his daughter with the respondent No. 6 is ex facie void and without lawful effect. According to him, she is a Christian and was, at the relevant time, a minor child; as such, she was legally incompetent to contract a valid marriage under the Child Marriage Restraint Act, 1929 ( Act of 1929 ). Consequently, her custody with the respondent No.6 is asserted to be illegal and unlawful. Undisputedly, the petitioner and his daughter profess the Christian faith. However, the contention of the petitioner that a Christian woman cannot lawfully marry a Muslim male is misconceived and devoid of substance, as it runs contrary to the settled principles of Islamic law, under which a Muslim male may validly contract marriage with a Christian woman (being from the Ahl al-Kitab). This position finds authoritative support in paragraph 259(1) of D.F. Mulla, Principles of Islamic Law (10th edn, Al-Qanoon Publishers) 746, wherein it is stated that a Muslim male may lawfully marry a Christian woman. For the sake of further clarity, reference may usefully be made to earlier pronouncements of the Supreme Court of Pakistan, wherein the above-noted principle was reiterated and elaborately expounded with due reference to the relevant Qur anic verses as well as the Hadiths. Firstly, reference may be made to case of Mrs. Marina Jatoi v. Nuruddin K Jatoi and others (PLD 1967 SC 580), wherein the Supreme Court made the following important observations regarding a marriage between a Muslim male and a Christian female: The above examination of the relevant provisions of the British Marriage Act, 1849, the Pakistan Divorce Act, 1869 and the Pakistan Christian Marriage Act brings out that a marriage between a Muslim male and a Christian female though permitted by Islam can be performed in Pakistan under Act XV of 1872 [the Christian Marriage Act, 1872] and to that extent the application of personal law stands excluded by statute. Reference may be made to section 5 of the Punjab Laws Act and other similar enactments and Regulations prevailing in other parts of undivided India. It is for this reason that a Christian female is usually converted to Islam before being married to a Muslim male. Consequently a marriage between a Muslim male and a Christian female can be dissolved only under the Divorce Act and not by pronouncement of talaq under the personal law of the husband . Emphasis supplied. Secondly, the Supreme Court of Pakistan in Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others (PLD 1981 SC 56), on the subject of dissolution of marriage between a Muslim male and a Christian female, observed as follows: We regret our inability to understand how this Sura can lead to the inference that Mr. Ihsanul Haq's submission is contrary to the express tent of the Holy Qur'an, and on the other hand, Mr. Ihsanul Haq did not challenge the principle that a Muslim can marry a Christian lady, but he challenged the inference which Mr. Ghias Mohammad attempted to draw from the fact that a Muslim male could marry a Christian, and the real controversy between the learned counsel was about the inference to be drawn from the principle that a Muslim male can marry a Christian. Because a Muslim male can marry a Christian, a possible and reasonable view is that a wife's renunciation of Islam for Christianity should not automatically dissolve her marriage, because her husband is free in any event to marry a Christian. But, on the other hand, although a Muslim male can marry a Christian, apostasy from Islam to any religion, including Christianity, was a crime . Emphasis supplied. 8. Before proceeding to determine the above controversy in the light of the afore-referred judgments of the Supreme Court of Pakistan, it is imperative to first clarify the precedential authority and binding force of its earlier decisions upon this Court within the framework of the prevailing constitutional dispensation. The frequent references to the judgments of the Supreme Court of Pakistan in our decisions may otherwise create the misimpression that this Court is unreservedly bound by those pronouncements in all circumstances, whereas that is not necessarily the position under the prevailing constitutional framework. Article 189 of the Constitution, which formerly accorded binding force to the judgments of the Supreme Court of Pakistan upon all courts subordinate thereto, must now be read in light of the altered constitutional architecture. Upon the establishment of this Court and the conferment upon it of final and binding authority in all matters, particularly constitutional matters, the precedential hierarchy stands constitutionally restructured. Accordingly, the binding force contemplated under Article 189 must be understood as operating subject to the overriding authority of this Court. The supremacy of constitutional adjudication now vests in this Court, and all courts, including the Supreme Court of Pakistan, are bound by its pronouncements. 9. It is further clarified that the binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself. Where the Constitution expressly vests final interpretative authority in a particular court, its pronouncements necessarily prevail over all others, including those of courts which formerly exercised such jurisdiction. Consequently, judgments of the Supreme Court of Pakistan rendered prior to the establishment of this Court do not operate as binding precedents upon this Court. They nonetheless continue to command great persuasive value, particularly when grounded in sound reasoning, reflect a consistent line of authority, and are in harmony with the text, structure, and underlying values of the Constitution. Needless to mention, the doctrine of stare decisis has not been abrogated; rather, it has been recalibrated to accord primacy to constitutional supremacy. The judicial discipline demands that precedent be reconsidered, not ignored and disregarded in silence, and that continuity be preserved except where departure becomes a constitutional necessity. Therefore, this Court would ordinarily respect and follow our earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values. Any departure from earlier Supreme Court precedent would be reasoned, express, and principled. The ultimate touchstone, however, remains the Constitution itself, whose meaning this Court is duty-bound to expound with finality. To sum up, the departure from earlier Supreme Court precedent may be justified only where this Court finds that such precedent: (i) is manifestly inconsistent with the text or structure of the Constitution; (ii) undermines or dilutes fundamental rights; (iii) reflects judicial overreach into legislative or executive domains; or (iv) has become incompatible with evolved constitutional values and democratic norms. (v) Any other compelling reason which tends to advance the cause of justice. 10. From the above discussion, there remains no iota of doubt that a Muslim male can lawfully marry a Christian female. The question that now arises is whether such a marriage can be solemnized and registered under the Muslim Family Laws Ordinance, 1961 (the Ordinance ). The answer to this question is clearly in the negative, as the Ordinance applies only to Muslim citizens of Pakistan (see sec. 1(2) of the Ordinance). However, with respect to this question, the learned counsel for respondent No.6, in the presence of Mst. Maria Bibi, argued that she is no longer a Christian as she had converted to Islam even before the solemnization of the marriage. The marriage, as such, was legally solemnized between two Muslims under the Ordinance. To support this contention, he…

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