Case Title:

Mst. Mumtaz Bibi vs. Qasim and others

Case Citation:

2022 PLD-228

Court:

Islamabad High Court

Parties:

 Mst. Mumtaz Bibi (Petitioner)

 Qasim and others (Respondents)

Judges:

Justice Mr. Babar Sattar

Facts of the Case:

The petitioner, Mst. Mumtaz Bibi filed a writ petition in the Islamabad High Court
regarding abduction of her minor daughter, Swera Falak Sher, who was born on
07.03.2006, and asked for her recovery. The son of the petitioner applied for
registration of an FIR under section 365B/34 of the Pakistan Penal Code (PPC) before
the Police Station, Golra Sharif Islamabad, which was subsequently registered,
however, neither the respondents were investigated nor the daughter of petitioner
was recovered.

During the proceedings of the Court, SHO, Police Station at Golra Sharif presented
the girl before the Court, who stated before the Court, that she has not been
abducted, instead, she contracted marriage with the respondent no. 1 on her free
will, and was not ready to go with the petitioner to her family home. In response to
her statement, the honourable Judge ordered police to send the girl to Dar-ul-Aman
and allowed the petitioner to meet her daughter there in the presence of
Administrator, Dar-ul-Aman and also directed that an analysis of psychosocial and
mental state of the girl, to be conducted by a psychiatrist at Dar-ul-Aman, who
would submit the report to this Court. The Court further ordered NADRA to submit a
report the facts related to the age of the girl, as per her family tree registered with
the authority in the form of the Family Registration Certificate (FRC), and also confirm
that whether the date of birth of the minor, as claimed by the respondent is
07.03.2006. The Court also directed the SHO to conduct detailed interviews of
petitioner, her husband and sons, and ascertain that whether the welfare of the
minor is with them or not and submit a report before this Court. Afterwards, the
Psychiatrist appeared before the Court and submitted that girl is in stable state of
mind, and parents and siblings of the girl also stated before the Court that, they, as a
family are responsible for her safety and well-being. Moreover, NADRA verifies that
the girl age is fifteen years on the basis of the FRC.

Issues:

The Court enquired following questions, which are as under:

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?

Issues Addressed:

During the proceedings, the Counsel for the Petitioner took the plea of minority for
granting custody of the minor girl the petitioner, on the other hand, the Counsel for
the Respondent claimed, that despite the age of minority, the girl has attained
puberty and her marriage with the Respondent no. 1 is to be considered as valid and
have the right to get the custody of his legally wedded wife. Afterwards, the Court
deliberated upon the relevant laws in detail, and made some observations on the
said subject.

The Court commented that Dinshaw F. Mulla’s Commentary on Muslim Personal Law
stated that a minor girl child is competent into the contract of marriage, once she
has attained the puberty, but the former did not consider it a sources of law, which is
reproduced as under:

“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.” After careful reading of the West Pakistan Muslim
Personal Law (Shariat) Application Act 1962, it can be said that application of muslim
personal law in relation to subjects such as 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 is subject to the provisions of enactments for the time being enforced in
Pakistan, so, it cannot be inferred that such subjects would only be death with
muslim personal law and not by any statute. The subject of marriage of minor had
also been extensively discussed by the honourable Federal Shariat Court, and 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. It also said
that there is no agreement among islamic scholars and schools of thought about
minimum age of marriage for a minor girl, so, there is no harm in setting a minimum
age of marriage for a girl by the State through any statute. The Majority Act 1895
and Muslim Family Law Ordinance 1962 does not include the subject of marriage,
but the same was discussed under the Dissolution of Muslim Marriage Act, 1939, and
the interpretation developed in course of time by different courts was that the
marriage of an adult man with a minor girl child couldn’t be declared invalid, only on
the ground of being less than 16 years of age, at the time of being getting married,
but such husband or people, who solemnize marriage would be criminally liable for
this act. Moreover, there are various laws, that deals with welfare and well-being of
minor, including minor girl child such as Article 25-A of the Constitution of Pakistan
1973, Protection of Women (Criminal Laws) (Amendment) Act, 2006, National
Commission on the Rights of Child Act, 2017, Juvenile Justice System Act, 2018, ICT
Child Protection Act, 2018, Zainab Alert, Recovery and Response Act, 2020 along with
the United Nations Convention on the Rights of Child debated the rights of children,
and stressed upon their protection of their rights and well-being, and severe
punishments for those, who have been involved in heinous crimes, such as rape,
unnatural offences, pro pornography, sodomy and other related acts against
children. Moreover, the contention regarding validity of a contract made between a
girl child and an adult male cannot be challenged, as the girl child has attained the
puberty. The Court was of view that physical capacity of a girl to produce offspring
has not been considered a sufficient ground for allowing her to contract a marriage,
and intellectual and mental maturity is an important element for making a contract
valid in the eye of law. Furthermore, NADRA also declare 18 years as a valid age for
vesting right upon any individual and similarly, the Election Act 2017 allows an
individual to vote, who have attained the age of 18 years. Thus the Court declared
that a child is defined as a person who has not attained the age of 18 years. A female
child below the age of 18 cannot be deemed competent to freely grant her consent
to enter into a marriage contract merely because she manifests the physical
symptoms of having attained puberty.

Court Held:
The Court held that in the light of afore-said, the instant petition is allowed and the
minor is to be released in the custody of Petitioner with her husband, who would
ensure the safety and the well-being of the child under the provisions of ICT Child
Protection Act, 2018.

This Summary is prepared by

Sara Saleem
Legal Research Fellow at Pakistanlegalresearch.com