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Petitioner: Mst. Mumtaz Bibi VS Respondent: Qasim and 4 others
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Mst. Mumtaz Bibi vs Qasim and 4 others Case No.: Writ Petition No.4227 of 2021 Date of Judgment:2022-02-09 Reported As: 2022 PLD Islamabad 228 Result: Petition allowed
JUDGMENT
JUDGMENT BABAR SATTAR, J.---The petitioner is aggrieved by the abduction of her daughter, Swera Falak Sher ("Minor"), who was born on 07.03.2006, and seeks her recovery. 2. Learned counsel for the petitioner stated that an application for registration of FIR was made by the son of the petitioner after the incident of abduction dated 18.05.2021 and FIR No.351/2021 was subsequently registered on 06.06.2021 under section 365-B/34 of Pakistan Penal Code, 1860 ("P.P.C.") at Police Station Golra Sharif, Islamabad against respondents Nos. 1 and 2 and other unknown accused. She submitted that despite persistent efforts the police authorities neither included respondent No.1 in the investigation nor produced the 15-year old daughter of the petitioner who has been missing since 18.05.2021. Learned counsel for the petitioner further submitted that pursuant to application filed under section 491 of the Code of Criminal Procedure ("Cr.P.C. ") a bailiff was appointed who submitted a report before the learned Additional Sessions Judge stating that the wife of respondent No.3 had informed the bailiff that the daughter of the petitioner had been married to respondent No.1. And it was on this basis that the learned Additional Sessions Judge passed order dated 20.10.2021, pursuant to which the petition was dismissed. 3. On 03.12.2021 the SHO, Police Station Golra Sharif, Islamabad appeared in person and assured the court that the Minor would be produced in the Court by 06.12.2021. On the said date, the SHO produced the Minor, who stated in court that she had married respondent No.1 and was unwilling to go along with the petitioner (i.e. her mother) to her family home. This Court then ordered that the Minor be lodged in Dar-ul-Aman and directed the Administrator, Dar-ul-Aman to allow the petitioner to meet with the Minor under the supervision of Administrator Dar-ul-Aman. It was also directed that an analysis of the psychological and mental state of the Minor .be undertaken by the
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psychologist at Dar-ul-Aman and a report be submitted to the Court. The Court had further directed National Database and Registration Authority ("NADRA") to place a report before this Court verifying the details in the Family Registration Certificate ("FRC") of the petitioner's family reflecting the date of birth of the Minor as 07.03.2006. Further the SHO, respondent No.5, was directed to interview the petitioner along with her husband and the brothers of the Minor, and file a report before the Court stating whether the Minor's safety would be in jeopardy in the custody of the petitioner. On 16.12.2021 the psychologist of Dar-ul-Aman appeared before the Court and stated that she had interviewed the Minor who was stable and not a threat to herself. On 23.12.2021 the father of the Minor along with brothers of the Minor appeared in Court along with the petitioner and assured the Court that as a family of the Minor they would be responsible for her security and well- being. On the said date the Court directed that the Minor continue to stay in Dar-ul-Aman and that the father and brothers of the Minor may also be allowed to meet the Minor at Dar-ul-Aman under the supervision of the Administrator. 4. Learned counsel for the petitioner stated that the FRC reflected that the Minor was 15 years of age and the said FRC had been verified by NADRA as well. She relied on Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and others (PLD 2018 Islamabad 385) for the proposition that where a report submitted by NADRA confirmed the date of birth of a party to a marriage there was no reason to order a medical examination of such person. She further relied on Mst. Alishba Bibi v. The State and 7 others (PLD 2020 Islamabad 28), where this Court had given detailed directions to the concerned authorities to curb the evil of child marriages. In the said judgment it had been held that question of age of the Minor should be determined by the court of competent jurisdiction after recording of evidence. She further relied on Mst. Bakhshi v. Bashir Ahmed (PLD 1970 SC 323) for the proposition that any person who married a girl below the age of 16 years was criminally liable under provisions of the Pakistan Penal Code, 1860 ("P.P.C."). She submitted that the petitioner and her husband were the parents and natural guardians of the Minor, who was living with them in her family home before she was abducted by respondent No. 1. That the Minor had now filed a suit for jactitation of marriage before the court vested with jurisdiction, and pending the decision of such suit the. Minor ought to be released in the custody of the petitioner. 5. Learned counsel for respondents Nos.1 and 3 submitted that the Minor had married respondent No.1 and respondent No.1 be allowed to meet the Minor. And further, that the Minor may be released in the custody of respondent No.1, who was the husband of the Minor. She relied on Muhammad Khalid v. Magistrate 1st Class and 2 others (PLD 2021 Lahore 21) for the proposition that a girl who had attained puberty, even if she was 14/15 years of age, could enter into a contract of marriage with a man of her choice and that it was not necessary for such girl to obtain the consent of her guardian/wali. In the said judgment the learned Lahore High Court after relying on Muhammad Iqbal v. The State (PLD 1983 FSC 9) and Mauj Ali v. Safdar Hussain Shah (1970 SCMR 437) held that a minor girl who had attained puberty and married of her own free will was to be released from Dar-ul-Aman and proceed with her husband or with her parents as she pleased. She further relied on Rashad Nazir v. The State and 3 others (2000 SCMR 1179) for the proposition that a sui juris girl could not be directed to live in Dar-ul-Aman. She also relied on Muhammad pashir v. Muhammad Usman (2003 SCMR 1339) where a sui juris girl appeared before the High Court and admitted that she had contracted marriage with the accused against whom an FIR for her abduction had been registered. The august Supreme Court upheld the judgment of the learned Lahore High Court quashing the said FIR. 6. Mr. Shazeb Nawaz Khan Advocate, the learned State Counsel, submitted that while the Muslim Family Laws Ordinance, 1961 ("MFLO") dealt with the registration of marriage, divorce etc., neither the said Ordinance nor the rules framed thereunder addressed the issue of marriage with a minor.
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He submitted that section 23 of 'the Family Courts Act, 1964, prohibited the court from questioning the validity of a marriage which was registered under the MFLO. He submitted that in view of the lack of clarity within the MFLO, marriages of the minors under the age of 18 years have continued as a matter of practice in view of the customary understanding of law that marriages of Muslim citizens are regulated by the Muslim Personal Law. He further stated that under the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, Muslim Personal Law on the question of marriage was applicable subject to provisions of any enactment for the time being in force. Consequently, Muslim Personal Law could be relied on as a source of law with regard to a question relating to a marriage that arose before the court. He submitted that Child Marriage Restraint Act, 1929 defined "child" in case of a female as a person under 16 years of age and section 4 provided that a male married a female under the age of 16 years of age was punishable with simple imprisonment which may extend to one month. He further stated that pursuant to section 2(vii) of Dissolution of Muslim Marriages Act, 1939, a minor girl was entitled to seek dissolution of marriage before she attained the age of 16 years provided that the marriage was not consummated. He submitted that most of the case law on the question of 'marriage had relied on commentary on Muslim Personal Law by Dinshaw F. Mulla wherein under para 251 of the commentary it has been stated that it would be assumed that a female had capacity to enter into a marriage contract if she had attained puberty. He contended that while the said commentary was not a source of law or binding on the court, a perusal of case law reflected that it had been treated as a source of law and relied on by the courts to determine the question of legal capacity of a minor to engage in a marriage. He then drew the court's attention to Muhammad Aslam v. State (2012 PCr.LJ 11), wherein the learned Federal Shariat Court, contrary to the suggestion that puberty alone determined a girl's capacity to marry, had dwelled on the meaning of consenting adults for purposes of marriage, and had held that such consenting adult is a person who has come of age responsible enough to understand the consequence of marriage and the responsibilities that it entails. He relied on Mst. Shahida and another v, Province of Sindh through Home Secretary, Sindh and others (2016 PCr.LJ Note 61) for the proposition that no minor was capable of giving consent. He then relied on Tariq Mahmood and another v. The State (2000 PCr.LJ 226) wherein the learned Federal Shariat Court while adjudicating the question of marriage of a 13-year-old girl had held that where the female was not 16 years of age on the date of Nikah and her attaining puberty could not be proved from the record she was not sui juris and was not capable of granting consent for marriage. He relied on Ghulam Qadir v. The Judge Family Court, Muree and another (1988 CLC 113) for the proposition that a minor was not competent to contract marriage. In the said judgment, the learned Lahore High Court had held that the marriage of a child was not invalid but could be annulled. It further held that a guardian could contract the marriage of child. He relied on certain cases where the alleged abductee was found to be sui juris and admitted to have contracted marriage with the accused against whom an FIR had been registered, and the courts found that there was no basis for registration of an FIR and quashed the same. The learned State Counsel concluded by saying that in view of the provisions of the Child Marriage Restraint Act, 1929, read together with the Dissolution of Muslim Marriages Act, 1939, the legislative intent was clear that a girl under the age of 16 years could not enter into a contract for marriage. But notwithstanding statutory provisions prohibiting such marriage contracts, marriages of minors had continued as the MFLO had not clearly declared that marriages of minors would be invalid. 7. In view of the FRC, as verified by NADRA, the date of birth of the Minor is 07.03.2006. She was 14 years and 02 months old at the time (i.e. 18.05.2021) when she was allured by respondent No.1 to come along with him for purposes of entering into a relationship and executing a marriage contract. The question of validity of such marriage is not the main question before this Court, but arises incidentally in discharge of its duty of treating the Minor in accordance with law and
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determining who ought to be handed over the custody of the Minor till such time that a court of competent jurisdiction rules on the existence and legality of any relationship between the Minor and respondent No. 1. This Court can therefore not pass a declaration whether or not the purported marriage contract between the parties is valid or not as doing so would require definitively determining the age of the Minor, which could require recording of evidence, and this Court in its constitutional jurisdiction cannot undertake such exercise. This Court must however decide whether the Minor who has been produced before the Court and is presently lodged in Dar-ul- Aman is to be released in the custody of the petitioner, who is her mother, or is to be released in the custody of respondent No.1, who claims to have solemnized a contract of marriage with the minor. The issues that arise in relation to such question include the following: 1. Can a Minor execute a valid contract of marriage and can a marriage between an adult and a child, even if with, the consent of the child, be deemed to be a valid marriage? 2. What is the age of majority in Pakistan, and does a Minor have the legal competence to enter into a contract of marriage before attaining the age of majority? 3. Can the consideration and purpose of contract of marriage be regarded as lawful in view of section 23 of the Contract Act, 1872, read together with sections 375 and 377A of Pakistan Penal Code, 1860? 4. Can a contract of marriage, involving an object and purpose that is proscribed, be treated as a valid contract while simultaneously creating criminal liability for the male for carrying out acts conceived by such contract? 8. The foundational purpose of rule of law is to enable citizens to order their lives in accordance with provisions of law and to be able to understand which actions are permissible that the citizens are free to engage in for not having been prohibited, and which actions are proscribed by law and consequently not to be undertaken. Article 4 of the Constitution guarantees a right to every individual to be dealt in accordance with law and states the following:-- 4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan. (2) In particular- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. 9. In order for citizens to ensure that their actions do not fall foul of the law attracting punitive liability, it is imperative that law lays down the acceptable rule of conduct with clarity. It cannot be countenanced that in a rule of law system an action would be prohibited by law engaging in which constituted a crime attracting significant jail time, while on the other hand the very same action was to be treated as the foundation of a valid contractual relationship. In order to make sense of the concept of rule of law, the laws of a country must speak with one voice that the citizens can understand in order to comply with the requirements of law and know in advance which actions are proscribed and would result in legal liability. This is why courts of law while discharging the function of interpreting laws take a holistic view of the statutes in force in order not to accord them contradictory interpretations, as it is to be assumed that the legislature while promulgating a law would not have intended to enact provisions that would contradict other provisions of law also in force. Principles of statutory interpretation thus require courts to accord meaning to provisions of a statute in a manner that they do not contradict the intent and purpose of other statutes to the extent possible. And if in view of the clear text of a statute such interpretation is not possible, there
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are other principles of statutory interpretation (i.e. as a general matter the law later in time prevails as the latest expression of legislative intent) applied to lay down for the benefit of citizens the applicable requirements of law with clarity. 10. Let us start with the framework of rights of children as guaranteed by the Constitution. Children like adults have been guaranteed the right to life and liberty by Article 9 of the Constitution. Article 9 was interpreted expansively by the august Supreme Court in Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) as a meaningful right to enjoy life and not just to exist. Through the 18th Constitutional Amendment, Article 25A was added to the Constitution, which holds that "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." Thus, the Constitution itself declares that it is mandatory for the State to ensure that children up to the age of 16 are given educational instruction. Article 35 of the Constitution holds that "the State shall protect the marriage, the family, the mother and the child." 11. In any rule of law framework, a distinction is drawn between actions of adults versus the actions of children. The reason is simple. Adults are assumed to understand the consequences of their actions and are accordingly held accountable for such consequences. Children, on the other hand, are not assumed to have complete agency arid the law therefore acknowledges that they might neither understand the consequences of their actions nor can be held completely responsible for such actions. Every State through legislative enactment determines the age at which a person is to be treated as an individual with autonomy and human agency for purposes of certain actions. This is the age at which his or her actions are deemed valid and are to be given effect as he or she has the capacity to understand their consequences, and the law accordingly holds such person accountable for them. Part of the question before us is the age at which a person in Pakistan is deemed to have the agency and capacity to enter into a contract for marriage and grant informed consent while understanding the myriad consequences and responsibilities marriage entails. 12. The case law on the question of competence of a Minor to consent to a contract of marriage is divergent. It has been assumed that the question of legal competence of a Minor to solemnize a marriage contract is regulated by Muslim Personal Law and not statutes enacted by the legislature. Research of the case law on the subject throws up references from paragraphs of Dinshaw F. Mulla's commentary on Muslim Personal Law on the basis of which it has been held that a female child is competent to enter into a contract of marriage once she has attained puberty. Paragraphs 250 and 251 of Mulla's commentary on Muslim Personal Law state the following: 250. Definition of Marriage. ---Marriage (nikah) is defined to be contract which has for its object the procreation and the legalizing of children. 251. Capacity for marriage. ---(1) Every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of a Mohammedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. 13. Before we proceed with the question of application of Muslim Personal Law to determine the legal competence of a child to execute a marriage contract, a comment on Mulla's commentary on Muslim Personal Law as a source of law is called for. Dinshaw Fardunji Mulla was not a Muslim scholar who can be accredited with religious expertise to interpret precepts of Islam. Dinshaw Fardunji Mulla, of Zoroastrian faith by descent, was a legal scholar who authored treatises on various subjects of law, including contract law and Muslim Personal Law. His treatise on Muslim Personal Law is therefore like any other legal commentary by a scholar of law as opposed to the commentary by a Muslim jurist with expertise or authority to interpret primary sources of Islamic
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Law. Dinshaw Mulla's commentary can therefore not be treated as a source of law itself but like any other treatise commenting on a subject of law can be used as a reference and a commentary. 14. The suggestion that questions such as marriage, maintenance and divorce for the Muslim citizens of Pakistan are regulated by Muslim Personal Law and not by statute is misconceived and emanates from a flawed reading of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 ("Act of 1962"). Section 2 of the Act of 1962 states the following:-- 2. Application of the Muslim Personal Law. - Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims. [Emphasis supplied] 15. It is evident from the text highlighted above that application of Muslim Personal Law in relation to subjects mentioned in section 2, including marriage, is subject to provisions of enactments for the time being in force in Pakistan. Sections 3 and 4 of the Enforcement of Shari'ah Act, 1991 ("Act of 1991"), which Act is subsequent to the Act of 1962, state the following:- 3. Supremacy of Shari'ah. (1) The Shari'ah that is to say the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, shall be the supreme law of Pakistan. (2) Notwithstanding anything contained in this Act, the judgment of any Court or any other law for the time being in force, the present political system, including the Majlis-e-Shoora (Parliament) and Provincial Assemblies and the existing system of Government, shall not be challenged in any Court, including Supreme Court, the Federal Shariat Court or any authority or tribunal: Provided that nothing contained herein shall affect the right of the non-Muslims guaranteed by or under the Constitution. 4. Laws to be interpreted in the light of Shari'ah. For the purpose of this Act- (a) while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and (b) where two or more interpretations are equally possible, the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court. 16. The question of application of Muslim Personal Law and to what extent a High Court can employ understanding of Muslim Personal Law in adjudicating matters before it came before this Court in Shahab Saqib v. Sadaf Rasheed (W.P. No. 2355/2015). It could be useful to reproduce excerpts of this Court's opinion rendered in Shahab Saqib: 30. As a historical matter, certain relationships, such as marriage and interactions within the family, were left outside the domain of public law and were regulated by the personal law of the community in question. The customs and personal laws of communities came to be guided by their respective religious beliefs and edicts. And the process of codification of personal laws of communities also began taking root. Therefore, codified statutory provisions as well as uncodified personal law both constituted sources of law guiding courts in reaching decisions in areas that traditionally belonged to the province of private law. 31. Overtime there has been a rethink on the virtues of leaving certain relationships, such as marriage and whatever transpires within it, in the private realm. The state has found that it has a legitimate interest in regulating these relationships as well, and we have consequently seen legislation on the issue of domestic abuse and statutory law regulating marriage, divorce and maintenance etc. The Muslim Family Law Ordinance, 1961, is one manifestation of the evolving jurisprudential approach with the state regulating relationships that erstwhile fell outside the
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public domain and were treated as a private matter regulated in accordance with customs as informed by the religious beliefs of communities. 33. It can thus not be permissible for a judge to assume the role of the legislature and determine what the Muslim Personal Law ought to be (which determination is then binding in terms of Articles 189 and 201 of the Constitution) on the basis of his preference for a certain school of Islamic thought or his personal understanding of Usool-al-fiqh and Shariah. 34. The Constitution has thus addressed this issue as also elucidated by the august Supreme Court in Malik Muhammad Mumtaz Qadri (PLD 2016 SC 17). A provision of law that is considered to fall foul of the commands of Shariah can be challenged only before the Federal Shariat Court in terms of Article 203D of the Constitution and the jurisdiction of the High Courts is ousted for such purpose under Article 203G... Further the Council of Islamic Ideology has been created under Article 228 of the Constitution, which is…
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