ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.S-526 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

24^th day of July, 2014

Miss. ParveenChachar, Advocate for petitioner a/w petitioner

Mr. ShahidShaikh, A.P.G. for the State a/w SHO Ghulam Hyder PS Drigh Bala.

Through instant petition, the petitioner has sought following relief(s):-

a) To set aside the order dated 28.5.2014 passed by the learned respondent No.1 to the extent that the petitioner may be accorded permission to swear Nikah with her husband Mubarak as according to Muhammadan Law the father being Wali of the child can arrange marriage of his child on reaching the age of puberty and the parents of the plaintiff undertake that they will arrange the rukhsati of the petitioner on reaching the age of 18 years;

b) Direct the respondent No.2 to restrain the respondent No.3 from harassing the petitioner and her family members / relatives / in-laws in any form or manifestation and treat them like respectable citizens as guaranteed in the Constitution of Islamic Republic of Pakistan;

c) To direct the respondent No.1 to provide legal protection of life, honour, prestige and property to the petitioner and her family members / relatives / in-laws against the sheer high handedness of the respondent No.2;

d) Direct the respondent No.2 to furnish statement before this Honourable Court he will not harass the petitioner and her family members / relatives / in-laws in any form or manifestation’

2. Learned counsel for the petitioner, inter alia, contends that marriage ceremony of the petitioner with her cousin Mubarak, aged about 30/35 years, was fixed on 27.5.2014 and was going on in gathering of number of guests, when SHO Ghulam Hyder of PS Drigh Bala along with his subordinate staff conducted raid; stopped marriage ceremony and produced petitioner (bride) before the Magistrate on the plea that her parents are contracting her marriage with an old person, aged about 60 years. Learned Magistrate referred petitioner for medical examination and her statement was recorded. In her statement, she categorically contended that she intends to marry with Mubarak, with consent of her parents. In support of her contentions, learned counsel referred to order passed by the learned Civil Judge & Judicial Magistrate, Dadu; medical report of Civil Surgeon and statement of petitioner, recorded u/s 164 Cr.PC, appended with petition and relied upon the case of Hafiz Abdul Waheed V. Asma Jehangir (PLD 2004 SC 219).

3. On the other hand, learned A.P.G contended that SHO, present in Court, alerted, when a news, flashed on TV channels regarding marriage of one minor girl with an old person, he in pursuant to such news, conducted raid and bound down the parties for their appearance before the Magistrate hence official respondent (s), while discharging their official duties, acted in good faith, therefore, they cannot be said to have committed any fault.

4. After careful consideration of what has been pleaded by respective sides and meticulous examination of the available record, it appears that SHO, PS DrighBala, moved application before the District & Sessions Judge, Dadu, that on receipt of information by news-ticker that “in village Haji Khan Lund one minor girl, aged about 15 years, namely Marvi, is being compelled to contract marriage with an old person of 60 years age,” therefore they reached there and got undertaking from bride and groom for their appearance before Magistrate. The operative part of order passed by Magistrate, being relevant, is reproduced hereunder:-

‘The lady is produced for her statement on Oath. However, the lady seems to be subject to child Marriage Restraint Act 2014, hence the SHO concerned is directed to produce the lady for her age determination from Civil Surgeon Dadu. Let copy of this order be communicate fro compliance. The SHO is directed to produce the lady again for her statement after her age is determined.’

6. The perusal of above reflects that the learned Magistrate took the matter as one of falling within meaning of the Child Marriage Restraint Act, 2013 and as such proceeded to get her age determined through medical examination. In result whereof, she (petitioner) was reported to be aged about 15 years and she, in her 164 Cr.P.C, statement also claimed to be 15/16 years of age. Further, she (petitioner), in her 164 Cr.PC statement, properly and intelligently answered all questions and quarry while reiterating that she herself intended to marry with Mubarak and her parents had consented to such decision. Having observed such proceedings, the learned Magistrate passed the following order:-

‘In light of the above factual and legal discussion, it has concluded to me that every person either male or female is restraint from marrying any male or female, as the case may be, under the age of eighteen years. Hence, the law prohibits Miss. Marvi and her parents from getting her married to any person unless she attends the age of eighteen years. So far as custody of Miss Marvi is concerned, she has stated in her statement that she wants to go with her mother and brother. As such her custody is handed over to her mother Mst. Arbeli wife of Hamzo Lund and brother Ali Gohar son of Hamzo Lund having CNIC No.41202-2366959-9 subject to furnishing their P.R. bonds in the sum of Rs.200,000/- (Rupees two lacs) each besides, undertaking to abide by the provisions of Sindh Child Marriage Restraint Act 2013 in its letter and spirit till she becomes eighteen years old. The application so forwarded by the Honourable District & Sessions Judge, Dadu is disposed of accordingly. Let such compliance report be resubmitted to the Honourable Sessions court, Dadu’

7. Before diving deep into merits of the order, It would be germane and necessary to have a look what the Muslim Family Laws speak about the marriage and age of a female for marrying because the Section 3 of the Muslim Family Laws Ordinance, 1961 gives over-riding effect to it over other laws. The Muslim Personal Law recognizes that it is the ‘puberty’ which entitles one to competently enter into a valid marriage. It was held by the Federal Shariat Court in case of……, reported as under:-

PLD 1983 FSC 9

‘ Victim girl though said to be less than 15 years yet nothing was on record showing her having not attained the puberty. Medical evidence, on other hand, showed her puberty. Girl’s marriage with appellant with her own consent, in circumstances, ought to be treated as a valid marriage’

In the case of ‘Abdul Waheed vs Asma Jehangir’ (PLD 2004 SC 219) it was held that:

‘Decision of Federal Shariat Court is required to be followed by a High Court and by all Courts subordinate to a High Court’

8. The Dissolution of Muslim Marriages Act 1939 recognizes such age as sixteen years (which earlier was 15 years but was substituted as sixteen years by the Muslim Family Laws Ordinance, 1961 (VIII of 1961) , which finds place as Section 13 of the Muslim Family Law Ordinance, 1961 and reads as under:-

(13. Amendment of the dissolution of Muslim Marriage Act, 1939 (VIII of 1939).In the Dissolution of Muslim Marriage Act, 1939 (VIII of 1939) in section 2:-

1. After clause (ii) the following new clause (ii-a) shall be inserted, namely:-

“(ii-a) that the husband has taken any additional wife…

(b) In clause (vii), for the word ‘fifteen’ the word ‘sixteen’ shall be substituted)

9. Further, per Section 271 and 272 of Mulla’s Principles of Muhammadan Law a marriage of minor (who not attained puberty) is not invalid for simple reason that it was brought about by father or grand-father and continues to be valid unless same is repudiated by that girl before attaining age of 18 years. Therefore, such act of the father and grand-father is protected by Muslim Laws unless the same is established or proved to be in manifest disadvantage of the minor. Besides, the Section 273 of the Mulla’s Principles of Muhammadan Law, provides that the marriage brought about by other guardian is also not invalid unless she, resorted to her operation to repudiate the marriage on attaining puberty.

10. At this juncture it would be significant to refer the case of Mauj Ali v. Syed Safder Hussain (1970 SCMR 437), wherein Child Marriage Restraint Act 1929 was in issue, while deciding such controversy honourable apex court held as under::

‘It is not disputed that Mst. Musarrat has attained the age of puberty and she had married with respondent No.1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Child Marriage Restraint Act and, therefore, it should not have been recognized by the High court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, respondent No.1, is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband. We are satisfied that substantial justice has been done in this case. We, therefore, do not consider this as a fit case to interfere in our special jurisdiction.

(Underlining has been supplied for emphasis)

11. While reverting to the case, it is pertinent to mention that learned Magistrate, initiated the proceeding, while referring Sindh Child Marriage Restraint Act 2013, but while in search such act does not exist on book of statutes, and at the time of proceeding by magistrate, it was only bill, hence bill cannot be treated as an Act. Worth to add here that it is the assent of the Government which converts a ‘Bill’ of the Provincial assembly into Law and gives it the status of an Act’ so is evident from the Article-116(4) of the Constitution which, for sake of convenience, is reproduced hereunder: -

(4)When the Government has assented, (or is deemed to have assented) to a Bill, it shall become Law and be called an Act of the Provincial Assembly.

Thus, at the time of passing the impugned i.e 28.5.2013 , Sindh Child Marriage Restraint Act, 2013’ had not attained the status of ‘law’ nor it was an ‘Act’ , therefore, proceedings undertaken by the learned Magistrate under such Act cannot be stamped to be valid or legal.

12. There can be no denial to the fact that ‘event of the marriage’ is always an event of honour of family particularly, when it is being solemnized without an attempt to keep it secret, therefore, all authorities, otherwise, are entitled to question the validity thereof, should strictly act keeping this aspect in mind and should not act in a manner prejudicial to the honour of such family or girl. The authority should try to first satisfy itself about genuineness of the information and then to decide whether to proceed or otherwise because if at the end of the day the information is found false or causeless there would be nothing to compensate the loss, sustained by the family complained against.

13. In the instant matter, the police official (s) acted in a blind manner by directly causing a ‘raid’ to stop the marriage and even the learned Magistrate fell in error while not making an inquiry towards puberty of the petitioner and even not got medical opinion in that respect when girl was claiming to be the age of 15/16 years and a consenting party to the marriage which was the requirement, as held by the Honourable Apex Court in number of decision (s), therefore, order, impugned, cannot legally sustain and is set-aside accordingly.

14. As regard the prayer clause (b) to (d) it would suffice to say that petitioner and her family or relative, being citizen of Pakistan, shall not be harassed and they shall continue enjoying guarantee, provided by the Constitution and other laws of the lands and any breach thereof, shall open the guilty not only to legal action, provided such act, but to contempt of this Court.

J u d g e

Imran/PA