--Shariat petition---Prohibition on child marriage---Repugnancy to Injunctions of Islam-

 P L D 2022 Federal Shariat Court 1
FAROOQ OMAR BHOJA
Versus
FEDERATION OF PAKISTAN through Ministry of Law and Justice of Pakistan through Secretary, Islamabad

Child Marriage Restraint Act (XIX of 1929)---

---Ss. 4, 5 & 6---Constitution of Pakistan, Art. 203-D---Shariat petition---Prohibition on child marriage---Repugnancy to Injunctions of Islam---Plea that Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929 ('the impugned provisions') were in contradiction with Islamic law and rules---Held, that the minimum age of girl for marriage was set at 16 years by the State through the Child Marriage Restraint Act, 1929---Majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, however there are some jurists having an opposing opinion too---Settled principle of Shariah was that if any 'Mobah' act appeared to be harmful to the society collectively or to a particular segment of a society, the State had power to make that act prohibited so that the society could be protected from a larger damage---Limitations could be set on a 'Mobah' act in a precautious way that it did not affect any other 'hukum' set out by Shariah---Setting a minimum age limit of 16 for girls to marry was one such example---Furthermore in Islamic law, there was a well-developed concept of 'Sad-uz-Zaraey' based on Quran and Sunnah, according to which it was also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it was---According to this principle of 'Sad-uz-Zaraey' the "impugned provisions" were not against the Quran and Sunnah---When a rule was abused or misused then it could be defined clearly to protect it from being abused---Impugned provisions did the same thing---Law or principle of Shariah was defined in a more clear way, that minimized the chance of its abuse or misuse, i.e., a marriage should not be consummated before the attainment of the age of medical maturity by the girl---Setting an age of 16 years reduced the possibility of breach of this principle of Shariah to the maximum---Setting a threshold of minimum age at 16 years for a girl by law would also generally help the girls to get at least basic education---Need for education was equally important for everybody irrespective of gender, which is why Islam had made the acquisition of education mandatory for every Muslim---At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education came under the concept of Hifz-ul-Aql i.e. protection and promotion of intellect, which was also one of the basic goals of Shariah---For a healthy marriage, not only physical health and economic stability etc. were necessary factors but mental health and intellectual development was equally important, which were achievable through education---According to the teaching of Islam providing the best education to a child girl or a daughter was one of the best deeds a person could do which guaranteed 'Jannah'---Shariat petition challenging Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929, being misconceived was dismissed in limine.