Peshawar High Court: Judgment

JUDGMENT SHEET
PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.
JUDICIAL DEPARTMENT
W.P No.995-A/2019
Malik Wajid Vs. The State & others.
Date of hearing: 11.03.2020

Petitioner (Malik Wajid.) by: Mr. Shad Muhammad Khan,
Advocate.
State by: Sardar Muhammad Asif, AAG.
Complainant Mst. Bushra Bibi in person along with Mr.

Muhammad Shafique Awan,
Advocate.
JUDGMENT
****
AHMAD ALI, J.Through this petition under Article199 of
the Constitution of Islamic Republic of Pakistan, 1973 read
with section 561-A, Cr.P.C., petitioners Malik Wajid and two
others seek quashment of case F.I.R. No. 730 dated
03.07.2019, registered at Police Station City, District
Mansehra, for an offence under section 365-B/34 PPC, on
the complaint of Mst. Bushra Bibi widow of Nazakat.
2. Mst. Faiza Bibi daughter of Muhammad
Nazakat appeared before this Court on 21-08-2019 and stated
that she being sui juris contracted marriage with petitioner
Malik Wajid with her free consent and will. She also
Page 2 of 5
produced her form “Bay” according to which she was born
on 01-12-1999. She opted to go along with her husband, but
since the complainant of the case was not present, therefore,
notice was issued to her.
3. Today, complainant Mst. Bushra Bibi appeared and
stated that since her daughter has contracted Nikah with
Malik Wajid, therefore, she has effected compromise and
does not want to proceed further in case FIR lodged by her.
Her statement has been recorded and placed on file, wherein
she stated that the compromise is genuine, without any
pressure or coercion and in the best interest of parties.
4. Perusal of record reveals that upon report of Mst.
Bushra Bibi widow of Nazakat, a case vide FIR No. 730
dated 03.07.2019 under Section 365-B/34 PPC of Police
Station City, Mansehra was registered against the petitioners
wherein it was alleged that on 01.07.2019, Mst. Faiza Bibi
was abducted by Wajid with the help of Mst. Safia and
Bisharat. The case of the Mst. Faiza Bibi is that she being sui
juris has contracted marriage with petitioner Malik Wajid
with her free consent and that nobody had abducted her. She
has placed the registered Nikahnama on the file. Section 251
of Mahomedan Law says that "Every Mahomedan of sound
mind, who has attained puberty, may enter into a contract of

Page 3 of 5
marriage.According to Muslim law, term `adult' means a
person being a male, has attained the age of eighteen years
or, being a female the age of sixteen years, or has attained
puberty.
5. There are traditions to the effect that the consent
of an adult virgin for her Nikah validates the marriage and
that such consent may be given by a girl remaining silent.
Some of the traditions are reproduced as follows;-
"33. Abu Hurairah reported that the

Messenger of Allah said: A previously
married woman shall not be married till
she gives consent, nor a virgin be
married till her consent is sought -------
34. Ibn Abbas reported that the

Messenger of Allah said: A previously
married woman is more a guardian for
herself than her guardian, and a virgin
should be asked permission about
herself; and her permission is her
silence. In a narration he said: `A
previously, married woman having
consummation has got greater right to
herself than her guardian, and a virgin
shall be asked of her consent; and her
permission is her silence (Muslim).
35. Abu Hurairah reported that the

Prophet said: A Grown-up girl shall be
asked permission about herself. If she is
silent, it is her permission and if she
declines there shall be no compulsion
on. her. (Tirmizi, Abu Daud, Nisai)."
6. Imam Abu Hanifa opined that the marriage of a
woman is subject to her personal consent. This is clear from

Page 4 of 5
page 233 of the book "Tuhfatul Ahawazi". This opinion of
Imam Abu Hanifa is to be found in all other books too. In
Hidaya, the principal of Hanafi Law is stated as under:-
"An adult female may engage in the

contract without her guardian's
consent----A Woman who is an adult,
and of sound mind, may be married by
virtue of her own consent although the
contract may not have been made or
acceded to by her guardian."
7. The august Supreme Court in the case of “Hafiz Abdul
Waheed v. Mrs. Asma Jhangir and another (PLD 2004 SC
219)” maintained the majority decision of the High Court,
passed in “Hafiz Abdul Waheed's case (PLD 1997 Lahore
301)” and observed that, "as per judgments of the' Federal
Shariat Court, consent of `Wali' is not required and a sui juris
Muslim female can enter into valid `Nikah'/marriage of her
own free-'will."
8. In the light of aforementioned dictum laid down by the
superior Courts, this Court is not hesitant to hold that the
marriage in between petitioner Malik Wajid and Mst. Faiza is
a valid marriage. Moreover, Mst. Faiza being sui juris,
appeared before this Court and confirmed the factum of her
Nikah with her free will and consent with petitioner Malik
Wajid. Her such statement was further authenticated by the

Page 5 of 5
statement of complainant Mst. Bushra Bibi recorded in Court
today.
9. For what has been discussed above, this writ petition is
accepted and case F.I.R No. 730 dated 03.07.2019, registered
under Section 365-B/34 PPC of Police Station City,
Mansehra, is quashed.
Announced:
11.03.2020
JUDGE
JUDGE
Tufail. DB Mr. Justice Shakeel Ahmad &Mr. Justice Ahmad Ali

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JUDGMENT SHEET

PESHAWAR HIGH COURT,

Date of hearing: 11.03.2020

State by: Sardar Muhammad Asif, AAG.

Complainant Mst. Bushra Bibi in person along with Mr.

AHMAD ALI, J.Through this petition under Article199 of

the Constitution of Islamic Republic of Pakistan, 1973 read

with section 561-A, Cr.P.C., petitioners Malik Wajid and two

others seek quashment of case F.I.R. No. 730 dated

03.07.2019, registered at Police Station City, District

Mansehra, for an offence under section 365-B/34 PPC, on

the complaint of Mst. Bushra Bibi widow of Nazakat.

2. Mst. Faiza Bibi daughter of Muhammad

Nazakat appeared before this Court on 21-08-2019 and stated

that she being sui juris contracted marriage with petitioner

produced her form “Bay” according to which she was born

on 01-12-1999. She opted to go along with her husband, but

since the complainant of the case was not present, therefore,

notice was issued to her.

3. Today, complainant Mst. Bushra Bibi appeared and

stated that since her daughter has contracted Nikah with

Malik Wajid, therefore, she has effected compromise and

does not want to proceed further in case FIR lodged by her.

Her statement has been recorded and placed on file, wherein

she stated that the compromise is genuine, without any

pressure or coercion and in the best interest of parties.

4. Perusal of record reveals that upon report of Mst.

Bushra Bibi widow of Nazakat, a case vide FIR No. 730

dated 03.07.2019 under Section 365-B/34 PPC of Police

Station City, Mansehra was registered against the petitioners

wherein it was alleged that on 01.07.2019, Mst. Faiza Bibi

was abducted by Wajid with the help of Mst. Safia and

juris has contracted marriage with petitioner Malik Wajid

has placed the registered Nikahnama on the file. Section 251

of Mahomedan Law says that "Every Mahomedan of sound

mind, who has attained puberty, may enter into a contract of

marriage.According to Muslim law, term `adult' means a

person being a male, has attained the age of eighteen years

or, being a female the age of sixteen years, or has attained

5. There are traditions to the effect that the consent

of an adult virgin for her Nikah validates the marriage and

that such consent may be given by a girl remaining silent.

Some of the traditions are reproduced as follows;-

"33. Abu Hurairah reported that the

34. Ibn Abbas reported that the

35. Abu Hurairah reported that the

6. Imam Abu Hanifa opined that the marriage of a

woman is subject to her personal consent. This is clear from

page 233 of the book "Tuhfatul Ahawazi". This opinion of

Imam Abu Hanifa is to be found in all other books too. In

Hidaya, the principal of Hanafi Law is stated as under:-

"An adult female may engage in the

7. The august Supreme Court in the case of “Hafiz Abdul

Waheed v. Mrs. Asma Jhangir and another (PLD 2004 SC

219)” maintained the majority decision of the High Court,

passed in “Hafiz Abdul Waheed's case (PLD 1997 Lahore

301)” and observed that, "as per judgments of the' Federal

Shariat Court, consent of `Wali' is not required and a sui juris

Muslim female can enter into valid `Nikah'/marriage of her