PLD 2022 ISLAMABAD 228
جسٹس بابر ستار نے جاری کردہ فیصلے میں لکھا کہ 18 سال سے کم عمر لڑکی آزادانہ شادی نہیں کرسکتی، حیاتیاتی طور پر بلوغت کی عمر 18 سال کا ہونا ہی ہے۔
عدالتی فیصلے میں کہا گیا کہ محض جسمانی تبدیلیوں پر 18 سال سے پہلے قانونی طور پر بلوغت نہیں ہوتی، بلوغت کی قانونی عمر 18 برس ہے، اس سے کم عمر لڑکی کی شادی غیر قانونی ہوگی۔
فیصلے میں کہا گیا کہ 18سال سے کم عمر لڑکی کے ورثا بھی جسمانی تعلق والا معاہدہ نہیں کراسکتے۔
عدالت نے بیٹی کی بازیابی کے لیے دائر ممتاز بی بی کی درخواست پر فیصلہ سنادیا اور 16سالہ سویرا فلک شیر کو واپس والدہ کے سپرد کرنے کا حکم دے دیا۔
عدالت نے ایس ایچ او گولڑہ کو دارالامان سے لڑکی واپس والدہ کے سپر کرنے کا حکم بھی دیا۔
عدالت نے مسلم فیملی لاز آرڈیننس میں وضاحت نہ ہونے کا معاملہ کابینہ ڈویژن اور پارلیمنٹ کے سامنے رکھنے کی ہدایت کردی۔
ممتاز بی بی نے مئی 2021 سے بیٹی کے اغوا کا مقدمہ درج کرایا تھا، لڑکی نے ہائی کورٹ میں مرضی سے شادی کرنے کا بیان دیا تھا۔
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?
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A. A child is defined as a person who has not attained the age of 18 years. A child is required to be placed in somebody’s care whether it is a parent or guardian or other caregiver appointed on behalf of the state. Complete agency to grant informed consent for purposes of entering into contract, including, inter alia, a marriage contract cannot be attributed to such child.
B. 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. In view of provisions of the Muslim Family Laws Ordinance, 1961, Islamabad Capital Territory Child Protection Act, 2018 and PPC, when read together, while being guided by principles of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child and the family), the test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth.
C. The provisions of sections 375 and 377A of PPC are mandatory provisions and any contract entered with the object of breaching such provisions or that has the effect of breaching such provisions cannot be treated as a valid contract. A 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 the 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 Article 9 of the Constitution read together with the provisions of United Nations Convention on the Rights of the Child.
D. A 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. The State is under an obligation to uphold and guarantee the rights of such child, who cannot be deemed to have the competence or capacity to parent a child of his/her own and act as guardian endowed with the primary responsibility to provide for his/her child while being a child himself/herself.
E. Sections 375 and 377A of PPC read together with Article 9 of the Constitution, Islamabad Capital Territory Child Protection Act, 2018, and provisions of United Nations Convention on the Rights of the Child unequivocally provide that no one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of section 377A.
F. Neither a child under the age of 18 can consent to engage in sexual conduct in any form, nor can a parent or guardian of a child, contract a child out to engage in sexual conduct. A child is not a chattel that can be contracted out by a trustee or guardian to engage in conduct that the 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. While a parent or guardian can deal with a child’s property in his/her best interest, the parent or guardian is not at liberty to contract out the child to engage in a contract of personal service or conduct otherwise prohibited by law.
G. Sections 375 and 377A of PPC do not provide for any exceptions or exclusions to conduct that otherwise qualifies as rape or sexual abuse as defined therein, and the said sections would be attracted 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.
Once this Court has come to the conclusion that a marriage contract involving a child under the age of 18 years is a contract prohibited by law, which, even if executed by a child, is void ab initio, the question of treating the purported nikah-nama between respondent No.1 and the Minor as a basis to release her in the custody of respondent No.1 does not arise. This Court has not however determined the age of the Minor definitively, nor has it made any observations as regard the liability of respondent No.1 under provisions of PPC. Doing so in writ jurisdiction could fetter the rights of the parties involved to due process and fair trial as guaranteed by Article 10A of the Constitution. The determination of such questions is left to the court of competent jurisdiction before which such questions are raised.
For reasons stated above, the instant petition is allowed and respondent No.5 is directed to ensure that the Minor is released from Dar-ul-Aman into the custody of the petitioner, who is her mother, and the petitioner along with her husband (i.e. the father of the minor) are responsible to provide for the safety and wellbeing of the Minor in accordance with the provisions of Islamabad Capital Territory Child Protection Act, 2018. Respondent No.1 shall pay the petitioner cost of litigation in the amount of Rs.20,000/- under section 35 of Civil Procedure Code, 1908 within a period of thirty days and the learned counsel for the respondent will file a certificate with the Deputy Registrar (Judicial) of this Court confirming that the order as to costs has been complied with.
The office is directed to send a copy of this judgment to the Secretary, Cabinet Division, and Secretary, Ministry of Parliamentary Affairs, to bring to the attention of the Cabinet and the Parliament, respectively, (i) the absence of a clear statutory provision in the Muslim Family Laws Ordinance, 1961, stating the permissible age for marriage in Pakistan, (ii) section 21 of the Guardians and Wards Act, 1890, which is in conflict with provisions of Islamabad Capital Territory Child Protection Act, 2018, read together with provisions of the United Nations Convention on the Rights of Child, and capable of creating the false impression that children in Pakistan under the age of 18 are still deemed capable of being guardians in select circumstances,and (iii) provisions of statutory instruments dating back to colonial times, including the Majority Act, 1975, Child Marriage Restraint Act, 1929, and the Dissolution of Muslim Marriages Act, 1939, provisions of which, if read on a stand-alone basis, could be vulnerable to interpretations in conflict with provisions of Sections 375 and 377A of PPC read together with Islamabad Capital Territory Child Protection Act, 2018, and provisions of the United Nations Convention on the Rights of Child. The office is also directed to send a copy of this judgment to Chief Commissioner, ICT, for information and compliance for purposes of registration of marriages under the Muslim Family Laws Ordinance, 1961, within Islamabad Capital Territory.
