حسن ڈوگر ایڈووکیٹ

صرف سونا چھیننے کا الزام کافی نہیں بلکہ ثابت بھی کرنا ہے کہ سونا چھین لیا گیا ہے
Gold ornaments are always possessed by females unless snatching is not only alleged but also proved.

PLD 2023 Lahore 669

2022 P L D Islamabad 228

Before Babar Sattar, J

Mst. MUMTAZ BIBI---Petitioner

Versus

QASIM and 4 others---Respondents

Writ Petition No.4227 of 2021, decided on 9th February, 2022.

(a) Constitution of Pakistan---

----Art. 199---Islamic law---Marriage---Minor---Validity---High Court cannot pass declaration whether or not purported marriage contract between parties is valid or not---Doing so requires determining age of minor, which requires recording of evidence, and High Court in its Constitutional jurisdiction cannot undertake such exercise.

(b) Constitution of Pakistan---

----Art. 4---Rule of law---Object, purpose and scope---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 citizens are free to engage in for not having been prohibited, and which actions are proscribed by law and consequently not to be undertaken.

(c) Interpretation of statutes---

----Harmony---Court, duty of---Scope---Courts are to accord meaning to provisions of a statute in a manner that they do not contradict intent and purpose of other statutes to the extent possible---If in view of clear text of a statute such interpretation is not possible, there 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.

(d) Jurisprudence---

----Adults and minors, actions of---Distinguished---In any rule of law framework, a distinction is drawn between actions of adults versus actions of children---Adults are assumed to understand consequences of their actions and are accordingly held accountable for such consequences---Children are not assumed to have complete agency and law acknowledges that they may neither understand consequences of their actions nor can be held completely responsible for such actions---Every State through legislative enactment determines age at which a person is to be treated as an individual with autonomy and human agency for purposes of certain actions---Such is the age at which his or her actions are deemed valid and are to be given effect as he or she has capacity to understand their consequences and law accordingly holds such person accountable for them.

(e) Islamic law---

----Source of law---Commentary on Muslim Personal Law by Dinshaw Fardunji Mulla---Validity---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---Treatise of Dinshaw Fardunji Mulla on Muslim Personal Law is 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 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.

(f) Juvenile Justice System Act (XXII of 2018)---

----Preamble---Object, purpose and scope---Provisions of Juvenile Justice System Act, 2018 take into account principles of agency and autonomy---While holding children accountable for criminal conduct proportionally, Juvenile Justice System Act, 2018, creates a distinction between criminal liability attributable to actions of minors versus liability flowing from actions attributable to adults---Different set of policy objects have been provided under Juvenile Justice System Act, 2018, for initiating penal action against minors, driven by considerations of reform as opposed to deterrence.

(g) Penal Code (XLV of 1860)---

----Ss. 375, 377-A & 377-B---Majority Act (XI of 1875), Ss. 3 & 4---United Nations Convention on Rights of Child (UNCRC), Arts. 1, 19 & 34---Sexual abuse against children---Remedies---Provisions of Ss.377-A & 377-B, P.P.C. have been enacted to discharge Pakistan's obligations under Arts. 19 & 34 of UNCRC---Object of Ss. 337-A & 337-B, P.P.C. is to criminalize act of exposing children to obscene or s*xually explicit conduct---No act of a s*xual nature involving a child is permissible even if it is with an explicit consent of such child---Child means a human being below the age of 18 years.

(h) Family Courts Act ( # # of 1964)---

----Preamble---Marriage---Object, purpose and scope---Contract of marriage is a contract whereby parties agree to engage in s*xual relations, recognized by the State and society as legitimate, for the purpose of procreation---Consideration and object of a marriage contract essentially entails two individuals agreeing to engage in legitimate s*xual relations, transforming individuals into a family warranting state protection---Relationship of marriage does not just entail engagement in permissible s*xual conduct---Purpose of marriage is to enter into a contract whereby two people agree to become a family and look after one another, and further agree to bring children into this world and are responsible for safety and physical and emotional well being of such offspring.

(i) Constitution of Pakistan---

----Arts. 10-A & 199---Habeas corpus, writ of---Plea of marriage---Attaining age of puberty---Petitioner sought recovery of her minor daughter, abducted by respondent who entered into marriage with her---Validity---Puberty has to do with physical aspects of growth of a female child---Merely because a child has grown physically and biologically to an extent that she can endure s*xual activity or in*******se does not automatically mean that she has legal capacity to marry or agency to contemplate consequences that marriage entails i.e. that she has mental and psychological maturity to reach such decision in her own best interest---There are factors that contribute to a female child reaching puberty---Children as young as ten or eleven years of age can possibly reach puberty as timing of puberty has been found to be related to physical characteristics including height, weight and body mass, as well as diet of individual and her geography etc.---If puberty was to be applicable test, would that deem a 10-year-old to be competent to contract marriage and engage in s*xual in*******se because she had attained puberty---Early maturing "adolescents" are at a higher risk for psychological and behavioural problems because they are not emotionally or formatively ready for major biological, social and emotional changes comprising puberty---Marriage contract involving a child under the age of 18 years was a contract prohibited by law, which, even if executed by a child, was void ab initio---High Court declined to treat purported Nikahnama between respondent and minor as a basis to release her in the custody of respondent---High Court declined to determine age of minor definitively and also did not make any observations as regard liability of respondent under the provisions of Penal Code,1860, in exercise of Constitutional jurisdiction as the same would fetter rights of parties involved to due process and fair trial as guaranteed by Art.10-A of the Constitution---High Court left determination of such questions to the court of competent jurisdiction before which such questions would be raised---High Court handed over custody of the minor to petitioner, who was her mother---Petitioner along with her husband (i.e. the father of the minor) were responsible to provide for the safety and well being of the minor---Constitutional petition was allowed accordingly.

Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and others PLD 2018 Isl. 385; Mst. Alishba Bibi v. The State and 7 others PLD 2020 Isl. 28; Mst. Bakhshi v. Bashir Ahmed PLD 1970 SC 323; Muhammad Khalid v. Magistrate Ist Class and 2 others PLD 2021 Lah. 21; Muhammad Iqbal v. The State PLD 1983 FSC 9; Mauj Ali v. Safdar Hussain Shah 1970 SCMR 437; Rashad Nazir v. The State and 3 others 2000 SCMR 1179; Muhammad Bashir v. Muhammad Usman 2003 SCMR 1339; Muhammad Aslam v. State 2012 PCr.LJ 11; Mst. Shahida and another v. Province of Sindh through Home Secretary, Sindh and others 2016 PCr.LJ Note 61; Tariq Mahmood and another v. The State 2000 PCr.LJ 226; Ghulam Qadir v. The Judge Family Court, Muree and another 1988 CLC 113; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Shahab Saqib v. Sadaf Rasheed W.P. No. 2355 of 2015; Malik Mumtaz Qadri v. State PLD 2016 SC 17; Farooq Omar Bhoja v. Federation (Shariah Petition No. 1 of 2020) and The Hanover Fire Insurance Company v. Muralidhar Banechand PLD 1958 SC 138 ref.

(j) Penal Code (XLV of 1860)---

----Ss. 375, 377-A & 377-B---Muslim Family Laws Ordinance (VIII of 1961), S. 5 ---Islamabad Capital Territory Child Protection Act (XXI of 2018), S. 3---United Nations Convention on Rights of Child (UNCRC), Arts. 1, 19 & 34---Constitution of Pakistan, Art. 9---Child marriage---Consent of child---Puberty, attainment of---Scope---Child is defined as a person who has not attained age of 18 years---Child is required to be placed in somebody's care whether it is a parent or guardian or other caregiver appointed on behalf of State---Complete agency to grant informed consent for purposes of entering into contract, including a marriage contract cannot be attributed to such child---Female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into marriage contract merely because she manifests physical symptoms of having attained puberty---Test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth---Provisions of Ss. 375 & 377-A, P.P.C. are mandatory provisions and any contract entered with the object of breaching such provisions or that has effect of breaching such provisions cannot be treated as a valid contract---Marriage contract in which one of the parties is a child under the age of 18 is therefore a contract executed for an unlawful purpose and is void ab initio---Such marriage contract can neither be registered under Muslim Family Laws Ordinance, 1961, nor can be given effect by a court, as that would tantamount to defeating provisions of law that have been promulgated to uphold rights of children guaranteed by Art. 9 of the Constitution read together with the provisions of United Nations Convention on the Rights of the Child---Child under the age of 18 years is a dependent of an adult whether such adult is a parent or guardian or other caregiver appointed by the State---State is under an obligation to uphold and guarantee rights of such child, who cannot be deemed to have competence or capacity to parent a child of his/her own and act as guardian endowed with primary responsibility to provide for his/her child while being a child himself/herself---No one can engage in s*xual conduct in any form with a child and neither can any person invite or entice a child to engage in s*xual conduct in any form, and any invitation or enticement provided to a child to engage in s*xual conduct, even under the cloak of marriage, would fall within the definition of s*xual abuse in terms of S.377-A, P.P.C.---Neither a child under the age of 18 can consent to engage in s*xual conduct in any form, nor can a parent or guardian of a child, contract a child out to engage in s*xual conduct---Child is not a chattel that can be contracted out by a trustee or guardian to engage in conduct that child himself/herself cannot grant consent for---No consent can be granted on behalf of a child by a parent or guardian involving discharge of personal service by the child or engagement in conduct that is unlawful and prohibited, such as that required to be performed under a marriage contract---Parent or guardian can deal with a child's property in his/her best interest but is not at liberty to contract out the child to engage in a contract of personal service or conduct otherwise prohibited by law---No exceptions or exclusions have been provided by Ss.375 & 377-A, P.P.C. to conduct that otherwise qualifies as r**e or s*xual abuse and would attract even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/her parent or guardian on his/her behest.

Ms. Sadaf Sehar Moon for Petitioner.

Shazeb Nawaz Khan, State Counsel.

Ms. Nosheen Gul Kharal for Respondents Nos. 1 to 3.

Talat Mehmood, S.I. Police Station Golra Sharif, Islamabad.

Date of hearing: 3rd January, 2022.

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 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 Ist 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 Bashir 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. 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 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 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 and 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 Muhammedan 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 Muhammedan 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 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 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 conferred with the authority to make recommendations to the Parliament and Provincial Assemblies as to ways and means to enable Muslims of Pakistan to enable their lives in accordance with the injunctions of Islam. It is then for the Parliament to amend existing laws or promulgate new laws for such purpose. It is however, nor for the High Court to usurp the jurisdiction of the Federal Shariat Court on the one hand or the Council of Islamic Ideology comprising religious scholars and the Parliament on the other, by importing one's personal understanding of principles emanating from the Quran and the Sunnah in deciding cases in the presence of clear statutory provisions addressing the subject matter.

37. The Enforcement of Shariah Act, 1991, was then promulgated and Section 4 clearly provides that laws to be interpreted in the light of Shariah where more than one interpretation of a statutory provision is possible and one such interpretation is consistent with or promotes the jurisprudence and principles of Islamic Law. In other words, jurisprudence and principle of Islamic Law can be used as a tool for interpretation of statutes where the text of the statute in view of its plain meaning can be accorded more than one interpretation. If the language of the statue unequivocally conveys the intent of the law, no external source of law can be employed to read into the statute. Framed another way, the jurisprudence and principle of Islamic Law do not trump the principle of casus omissus. A court cannot supply to a statue language that is not provided therein. It is only while undertaking an interpretive exercise to resolve some ambiguity in statutory law that Section 4 of the Enforcement of Shariah Act, 1991 comes into play and the jurisprudence and principles of Islamic law can be used as sources of law to guide the interpretive exercise.

It was therefore concluded that it is in view of the provisions of the Constitution as well as the law laid down by the august Supreme Court in Malik Mumtaz Qadri v. State (PLD 2016 SC 17) it is not for a presiding judge to employ his own subjective understanding of principles of Muslim Personal Law to decide the case before the court in the presence of clear statutory provisions addressing the subject matter.

17. In Farooq Omar Bhoja v. Federation (Shariah Petition 1/2020) the learned Federal Shariat Court dismissed a challenge to sections 4, 5 and 6 of the Child Marriage Act, 1929, for being in contradiction with principles of Islamic Law. It observed that amongst Islamic Jurists there was disagreement over whether or not the nikah of a minor girl is permissible. However, it held that it was not un-Islamic for the state to determine the permissible age for entering into a contract for marriage. 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 v. The State (2012 PCr.LJ 11) wherein the following was held:--

9. Awareness about marriage encompasses more serious matters than mere carnal knowledge (relating to physical feelings and desires of body). Therefore, Islam places conjugal consent over high pedestal of morality rather than carnality. Consequently consenting adult is a person who has come of age enough, and therefore responsible enough, to decide and understand consequences of marriage.

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 assistance of wali and wakil (guardian-counsel and supporter-protector); in one's own interest or benefit; extent of free availability of possible options to choose from; environ of freedom.

In view of the jurisprudence produced by the learned Federal Shariat Court, the State regulating the permissible age for entering into a marriage contract or what constitutes a prohibited object or purpose of a contract is not un-Islamic. Further, as noted in Farooq Omar Bhoja, there is no agreement amongst Islamic scholars and jurists with regard to the minimum permissible age for marriage. Consequently, such age is to be determined in view of provisions of enactments in force in Pakistan at the present time, with a view to promoting Principles of Policy prescribed in the Constitution while contradicting principles of Islamic law and jurisprudence.

18. As will be discussed later in this opinion there are clear statutory provisions proscribing acts that no one can engage in when they involve a child under the age of 18. In the presence of such clear and unequivocal statutory provisions criminalizing certain acts and behavior, there is no room to engage in any further interpretive exercise to determine whether or not a child marriage falls within the domain of prohibited conduct in Pakistan. Before we consider enactments in force at the moment, it must be noted that legislative instruments enacted prior to Pakistan's independence, while India was a British colony, largely refrained from regulating conduct that was deemed to fall within the province of private law of citizens (as also discussed in Shahab Saqib). And consequently, the colonial regime sought not to interfere with local practices beyond a point even when certain practices were considered undesirable, such as child marriages. The limitations that bound the colonial government do not constrain the state in a democracy where the populace administers itself through a representative government. The Constitution provides for separation of powers and checks and balances. Part of the system of checks and balances includes institutional structures, in the form of the Council of Islamic Ideology with the power to make recommendations to the legislature to ensure that laws of the country are in consonance with teachings of Islam, and in the form of a Federal Shariat Court to consider whether the provision of a law is in conflict with Islamic law and jurisprudence. It is due to the institutional framework to enact laws for the welfare of the citizens in accordance with the Constitution that the state of Pakistan is not constrained in the manner that the colonial state was, and the legislature can enact laws to proscribe abhorrent practices and social customs and prescribe penal consequences to root out such practices and customs. It is also important to bear in mind that while the fundamental right of a child to have his/her best interest protected might have been a recognized right even a century ago, the standard of behavior that is required in order to uphold such right has evolved over a period of time. And this evolution in the expected standard of behavior, as prescribed, is reflected in our legislation.

19. Let us now turn to the statutory instruments relevant for our present purposes. We will first list the relevant provisions of statutes enacted by the government in British India, which reflect a policy of the colonizing power to avoid interference with local customs and practices within the domain of private law:--

(i) The Majority Act, 1875.

2. Savings:-- Nothing herein contained shall effect.-

(a) the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption;

(b) the religion or religious rites and usages of any class of citizens of Pakistan;

3. Age of majority of persons domiciled in Pakistan.---Subject as aforesaid, every Minor of whose person or property, or both a guardian, other than a guardian for a suit within the meaning of Order 32 of the First Schedule of the Code of Civil Procedure, 1908 (V of 1908) has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the that age shall, notwithstanding anything contained in the Succession Act, 1925 ( # # of 1925) or in any other enactment, his majority when he shall have completed his age of twenty-one years and not before.

(ii) The Child Marriage Restraint Act, 1929.

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;

(d) "minor" means person of either s*x who is under eighteen years of age.

4. Punishment for marrying a child.---If a person, not being a minor, contracts child marriage, he shall be liable to punishment of simple imprisonment which may extend to six months and fine of fifty thousand rupees.

5. Punishment for solemnizing a child marriage. - Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to [8][six months and fine of fifty thousand rupees], unless he proves that he had reason to believe that the marriage was not a child marriage.

6. Punishment for parent or guardian concerned in a child marriage.- (1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to [9][six months and fine of fifty thousand rupees]:

Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

(iii) The Dissolution of Muslim Marriages Act, 1939.

2. Grounds for decree for dissolution of marriage. A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

20. Section 2 of the Majority Act, 1875, excluded from its scope the subject of marriage. The Dissolution of Muslim Marriages Act, 1939, contemplated the possibility of a child under the age of 16 being married off by her father or guardian. It was due to these provisions, together with lack of a clear provision in the Muslim Family Laws Ordinance, 1961, prescribing the age for a valid marriage, that courts while relying on commentaries on Muslim Personal Law held that marriage with a female child under the age of 16 while attracting criminal liability under sections 4, 5 and 6 of the Child Marriage Restraint Act, 1929, did not invalidate the contract of marriage itself. In this regard various judgment rendered by High Courts rely on the decision of the august Supreme Court in Mst. Bakhshi v. Bashir Ahmad (PLD 1970 SC 323) where a 15 years old girl whose father had passed away when she was very young and her mother had contracted a second marriage, had contracted a marriage of her own will. Her mother then lodged an FIR against the daughter's husband for kidnapping her. The girl was medically examined and the doctor opined that she was between 16/17 years of age. The husband filed an application before the High Court under section 491 of Cr.P.C. to secure the release of his wife. The High Court released the minor girl and left it