PLD 2020 Lahore 811
کم عمری کی شادی کے مضمرات،
موجودہ متعلقہ قوانین میں موجود نقائص،
موجودہ متعلقہ قوانین پر عملدرامد،
نکاح خواں کی ذمہ داریاں تفصیل سے بیان کی گئ ھیں
Justice Anwaar ul Haq Pannu, Judge of Lahore High Court has delivered a very detailed judgment on child marriages, lacunas in the relevant law, and implementation of existing laws. His lordship has also pointed out the role of Nikah Khawans and in what circumstances their licenses can be canceled. Mr. Pannu has highlighted the side effects of child marriages as well.
PLD 2020 Lahore 811
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It is observed that during the judicial dispensation, it has oftenly been noticed that as a result of registration of criminal cases in respect of offences under Chapter XVI-A PPC while waging a plea of valid marriage having duly been registered under the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as ‘the MFLO’) by one of the parties to the lis, generally contested by the other side or even in absence of registration of criminal cases, the grievance of illegal and undue harassment to the breach of fundamental rights of the aggrieved persons claiming valid marriage, at the hands of police at the behest of the parents, guardians or other relatives of the bride, is found to be voiced and by filing such petitions either the relief of quashing of FIR or issuance of a writ in the nature of prohibition is usually prayed for. Even, in certain cases upon a cursory inquiry it divulges that despite clear legal provisions specifying the eligibility with regard to age limit of the parties to the marriage, the acclaimed marriage is found as having been contracted by violating the provisions of the Child Marriage Restraint Act, 1929 (hereinafter to be referred as “the Act 1929”).
PLD 2020 Lahore 811
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It has further been noticed that some of the Nikah Khawans/Nikah Registrars instead of requiring any proof of age from the parties to the marriage which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School leaving Certificate, medical certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council etc, out of their petty temptations knowingly that one of the parties to the marriage is minor, proceed to rely upon a selfdeclaration of the concerned party in respect of his/their age at the time of registration of their marriage.
PLD 2020 Lahore 811
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Under the Muslim Law the competence of a girl to enter into a contract of marriage is dependent on the attainment of puberty. Puberty is presumed at the age of fifteen years. According to ‘Fatawa Alamgiri’, Page-93 of Vol-V, the lowest age of puberty according to its natural signs, is 12 years in males and 9 years in females and if signs do not appear, both sexes are held to be adult on the completion of their age of 15 years. The principle which after copying out from Fatawa Alamgiri and Hedaya can be deduced is that a girl even having not attained puberty but possessing discretion and sufficient understanding can enter into a contract of marriage however for its operation it will be dependent on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining of majority and ratifying the contract. According to Paragraph-274 of Mahomedan Law, “when a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the option to repudiate the marriage on attaining the puberty. This is technically called the “option of puberty” (Khyar-ulbulugh). The right of repudiation of the marriage is lost, in the case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate without reasonable delay. The Dissolution of Muslim Marriages Act, 1939, however, gives her the right to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated. But in the case of a male the right continues until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.”
PLD 2020 Lahore 811
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At a number of occasions that despite a clear legal requirement of filling in each column of the Nikahnama individually, with specific answer of the parties to the marriage, the Nikah Registrar proceeds to place a single long vertical line against all or some of the columns which amounts to an offence liable to be punished under the law. Such criminal lapse/acts of the Nikah Registrar or the parties, as the case may be, despite being a source of breach of rights of the parties to the marriage are randomly ignored. The unscrupulous elements while taking advantage of such omissions or lapses try to exploit the situation and create serious future complications for the others.
PLD 2020 Lahore 811
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It may be relevant to observe that in view of section 21 of the Pakistan Penal Code, 1898, Nikah Registrar is deemed to be a ‘Public Servant’ for criminal prosecution. The status of Nikah Registrar is that of a licensee. He does not fall within the definition of an employee as provided under Section 2(h) of the PEEDA (Punjab employees, efficiency and discipline) Act 2006, therefore, in case of any contravention with any of the provisions of law or violation of any of conditions of the licence, subject to notice, his licence can be revoked/ cancelled by the Union Council.
PLD 2020 Lahore 811
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A deterrence of punishment for violation of the provisions of Child Marriage Restraint Act, 1929 has been created. It is quite vivid that the act does not hold the minor responsible for violation of the provision of the Act 1929. It also does not invalidate the marriage itself. It only,, holds certain categories of persons liable for the violations of the provisions of the Act 1929. Under Section 2(a) of Act 1929, child has been defined ‘a person, if male, under 18 years of age and if female, under 16 years of age.
PLD 2020 Lahore 811
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The trial of the offence under the provisions of the Child Marriage Restraint Act, 1929 is to be held by a Family Court exercising the powers of a Judicial Magistrate of the first class in accordance with the Provisions of Family Courts Act, 1964 (XXXV of 1964).
PLD 2020 Lahore 811
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The registration of the marriage shall be in accordance with the provisions of the Ordinance and the Rules. For registration of Nikah/marriage, the Union Council has been authorized to issue a license to one or more persons who are fit and proper to solemnize the Nikah, on his/their application who are called as Nikah Registrars. The Nikah Registrar is under obligation to fill in accurately every column of the Nikahnama individually with specific answers of the bride and the bridegroom. Any violation/contravention with the provisions of the Ordinance is punishable with simple imprisonment and fine. The record of the marriage in respect of marriage registration is to be maintained by the Union Council. The copy of Nikahnama shall be supplied to the parties.
PLD 2020 Lahore 811
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It is a matter of great concern that despite ninety years of the promulgation of the Act, 1929, its objectives could not have been achieved satisfactorily due to certain lapses or loopholes in the mechanism for its enforcement. The children are still being lured by unscrupulous elements through deceitful means to abuse their innocent souls. It is also relevant to point out that although under The Majority Act, 1875 (Act XX of 1875) (hereinafter known as ‘Majority Act’) a person is said to attain majority at the age of eighteen years. However, in case of appointment of his guardian by the Court, the age of majority of such a Ward is twenty-one years. The application of the above provisions has however been excluded insofar as the operation of personal law in respect of marriage, divorce and dower is concerned. Every other person, subject to as aforesaid, domiciled in Pakistan shall be deemed to have attained his majority on completion of his age of eighteen years, and not before. A Muslim though under 18 years on attaining puberty, can bring a suit relating to marriage, dower and divorce without next friend.
PLD 2020 Lahore 811
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Directions issued to Nikah Registrars
(1) All the Nikah Registrars or other persons, who solemnize marriages are under legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage. Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from the parties to the marriage preferably which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School Leaving Certificate, Medical Certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council, etc. is produced.
(2) Furthermore, after perusing the record in compliance with SOP (ii) mentioned in para 17, in case the Authority fails to take the requisite action, it will be deemed that he himself has willfully failed to perform his function/duty amounting to negligence rendering himself liable for initiation of disciplinary proceedings against him under the relevant law.
PLD 2020 Lahore 811
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