Form No: HCJD/C-121.

JUDGEMENT SHEET
IN THE ISLAMABADHIGH COURT, ISLAMABAD
JUDICIAL DEPARTMENT

WRIT PETITION NO. 4227 OF 2021

Mst. Mumtaz Bibi

Vs

Qasim and others

PETITIONER BY: Ms. Sadaf Sehar Moon, Advocate.

RESPONDENTS BY: Mr. Shazeb Nawaz Khan, State Counsel.

Ms. Nosheen Gul Kharal, Advocate for
respondents No. 1 to 3.
Mr. Talat Mehmood, S.I, P.S Golra Sharif,
Islamabad.

DATE OF HEARING: 03.01.2022.

========================================

BABAR SATTAR, J.- The petitioner is aggrieved by the

abduction of her daughter, Swera Falak Sher, who was born on

07.03.2006 (“Minor”), and seeks her recovery.

2. Learned counsel for the petitioner stated that an

application for registration of FIR was made by the son of the

petitioner after the incident of abduction dated 18.05.2021 and

FIR No.351/2021 was subsequently registered on 06.06.2021

under section 365-B/34 of Pakistan Penal Code, 1860 (“PPC”)

at Police Station Golra Sharif, Islamabad against respondents

No. 1 and 2 and other unknown accused. She submitted that

despite persistent efforts the police authorities neither included

respondent No.1 in the investigation nor produced the 15-years

old daughter of the petitioner who has been missing since

18.05.2021. Learned counsel for the petitioner further submitted

that pursuant to application filed under Section 491 of the Code

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of Criminal Procedure (“Cr.P.C.”) a bailiff was appointed who

submitted a report before the learned Additional Sessions Judge

stating that the wife of respondent No.3 had informed the bailiff

that the daughter of the petitioner had been married to

respondent No.1. And it was on this basis that the learned

Additional Sessions Judge passed order dated 20.10.2021,

pursuant to which the petition was dismissed.

3. On 03.12.2021 the SHO, Police Station Golra Sharif,

Islamabad appeared in person and assured the court that the

Minor would be produced in the Court by 06.12.2021. On the said

date, the SHO produced the Minor, who stated in court that she

had married respondent No.1 and was unwilling to go along with

the petitioner (i.e. her mother) to her family home. This Court

then ordered that the Minor be lodged in Dar-ul-Aman and

directed the Administrator, Dar-ul-Aman to allow the petitioner to

meet with the Minor under the supervision of Administrator Dar-

ul-Aman. It was also directed that an analysis of the

psychological and mental state of the Minor be undertaken by the

psychologist at Dar-ul-Aman and a report be submitted to the

court. The Court had further directed National Database and

Registration Authority (“NADRA”) to place a report before this

Court verifying the details in the Family Registration Certificate

(“FRC”) of the petitioner’s family reflecting the date of birth of

the Minor as 07.03.2006. Further the SHO, respondent No.5, was

directed to interview the petitioner along with her husband and

the brothers of the Minor, and file a report before the Court

stating whether the Minor’s safety would be in jeopardy in the

custody of the petitioner. On 16.12.2021 the psychologist of Dar-

W.P No. 4227 of 2021 Page |3

ul-Aman appeared before the Court and stated that she had

interviewed the Minor who was stable and not a threat to herself.

On 23.12.2021 the father of the Minor along with brothers of the

Minor appeared in Court along with the petitioner and assured the

Court that as a family of the Minor they would be responsible for

her security and well-being. On the said date the Court directed

that the Minor continue to stay in Dar-ul-Aman and that the

father and brothers of the Minor may also be allowed to meet the

Minor at Dar-ul-Aman under the supervision of the Administrator.

4. Learned counsel for the petitioner stated that the FRC

reflected that the Minor was 15 years of age and the said FRC

had been verified by NADRA as well. She relied on Muhammad

Safeer Vs. Additional Sessions Judge (West) Islamabad

and others (2018 PLD Islamabad 385) for the proposition

that where a report submitted by NADRA confirmed the date of

birth of a party to a marriage there was no reason to order a

medical examination of such person. She further relied on Mst.

Alishba Bibi Vs. The State and 7 others (2020 PLD

Islamabad 28), where this Court had given detailed directions

to the concerned authorities to curb the evil of child marriages. In

the said judgment it had been held that question of age of the

Minor should be determined by the court of competent

jurisdiction after recording of evidence. She further relied on

Mst. Bakhshi Vs. Bashir Ahmed (PLD 1970 SC 323) for the

proposition that any person who married a girl below the age of

16 years was criminally liable under provisions of the Pakistan

Penal Code, 1860 (“PPC”). She submitted that the petitioner

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and her husband were the parents and natural guardians of the

Minor, who was living with them in her family home before she

was abducted by respondent No.1. That the Minor had now filed a

suit for jactitation of marriage before the court vested with

jurisdiction, and pending the decision of such suit the Minor ought

to be released in the custody of the petitioner.

5. Learned counsel for respondents No.1 and 3 submitted

that the Minor had married respondent No.1 and respondent No.1

be allowed to meet the Minor. And further that the Minor may be

released in the custody of respondent No.1, who was the

husband of the Minor. She relied on Muhammad Khalid Vs.

Magistrate Ist Class and 2 others (PLD 2021 Lahore 21) for

the proposition that a girl who had attained puberty, even if she

was 14/15 years of age, could enter into a contract of marriage

with a man of her choice and that it was not necessary for such

girl to obtain the consent of her guardian/wali. In the said

judgment the learned Lahore High court after relying on

Muhammad Iqbal v. The State (PLD 1983 FSC 9) and Mauj

Ali Vs Safdar Hussain Shah (1970 SCMR 437) held that a

minor girl who had attained puberty and married of her own free

will was to be released from Dar-ul-Aman and proceed with her

husband or with her parents as she pleased. She further relied on

Rashad Nazir Vs. The State and 3 others (2000 SCMR

1179) for the proposition that a sui juris girl could not be

directed to live in Dar-ul-Aman. She also relied on Muhammad

Bashir Vs. Muhammad Usman (2003 SCMR 1339) where a

sui juris girl appeared before the High Court and admitted that
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she had contracted marriage with the accused against whom an

FIR for her abduction had been registered. The august Supreme

Court upheld the judgment of the learned Lahore High Court

quashing the said FIR.

6. Mr. Shazeb Nawaz Khan Advocate, the learned State

Counsel, submitted that while the Muslim Family Laws Ordinance,

1961 (“MFLO”) dealt with the registration of marriage, divorce

etc., neither the said Ordinance nor the rules framed thereunder

addressed the issue of marriage with a minor. He submitted that

section 23 of the Family Courts Act, 1964, prohibited the court

from questioning the validity of a marriage which was registered

under the MFLO. He submitted that in view of the lack of clarity

within the MFLO, marriages of the minors under the age of 18

years have continued as a matter of practice in view of the

customary understanding of law that marriages of Muslim citizens

are regulated by the Muslim Personal Law. He further stated that

under the West Pakistan Muslim Personal Law (Shariat)

Application Act, 1962, Muslim Personal Law on the question of

marriage was applicable subject to provisions of any enactment

for the time being in force. Consequently, Muslim Personal Law

could be relied on as a source of law with regard to a question

relating to a marriage that arose before the court. He submitted

that Child Marriage Restraint Act, 1929 defined “child” in case of

a female as a person under 16 years of age and section 4

provided that a male married a female under the age of 16 years

of age was punishable with simple imprisonment which may

extend to one month. He further stated that pursuant to section

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2(vii) of Dissolution of Muslim Marriages Act, 1939, a minor girl

was entitled to seek dissolution of marriage before she attained

the age of 16 years provided that the marriage was not

consummated. He submitted that most of the case law on the

question of marriage had relied on commentary on Muslim

Personal Law by Dinshaw F. Mulla wherein under para 251 of the

commentary it has been stated that it would be assumed that a

female had capacity to enter into a marriage contract if she had

attained puberty. He contended that while the said commentary

was not a source of law or binding on the court, a perusal of case

law reflected that it had been treated as a source of law and

relied on by the courts to determine the question of legal capacity

of a minor to engage in a marriage. He then drew the court’s

attention to Muhammad Aslam Vs. State (2012 PCr.LJ 11),

wherein the learned Federal Shariat Court, contrary to the

suggestion that puberty alone determined a girl’s capacity to

marry, had dwelled on the meaning of consenting adults for

purposes of marriage, and had held that such consenting adult is

a person who has come of age responsible enough to understand

the consequence of marriage and the responsibilities that it

entails. He relied on Mst. Shahida and another Vs. Province

of Sindh through Home Secretary, Sindh and others (2016

PCr.LJ Note 61) for the proposition that no minor was capable

of giving consent. He then relied on Tariq Mahmood and

another Vs. The State (2000 PCr.LJ 226) wherein the learned

Federal Shariat Court while adjudicating the question of marriage

of a 13-year-old girl had held that where the female was not 16

years of age on the date of Nikah and her attaining puberty could
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not be proved from the record she was not sui juris and was not

capable of granting consent for marriage. He relied on Ghulam

Qadir Vs. The Judge Family Court, Muree and another

(1988 CLC 113) for the proposition that a minor was not

competent to contract marriage. In the said judgment, the

learned Lahore High Court had held that the marriage of a child

was not invalid but could be annulled. It further held that a

guardian could contract the marriage of child. He relied on certain

cases where the alleged abductee was found to be sui juris and

admitted to have contracted marriage with the accused against

whom an FIR had been registered, and the courts found that

there was no basis for registration of an FIR and quashed the

same. The learned State Counsel concluded by saying that in

view of the provisions of the Child Marriage Restraint Act, 1929,

read together with the Dissolution of Muslim Marriages Act, 1939,

the legislative intent was clear that a girl under the age of 16

years could not enter into a contract for marriage. But

notwithstanding statutory provisions prohibiting such marriage

contracts, marriages of minors had continued as the MFLO had

not clearly declared that marriages of minors would be invalid.

7. In view of the FRC, as verified by NADRA, the date of

birth of the Minor is 07.03.2006. She was 14 years and 02

months old at the time (i.e. 18.05.2021) when she was allured by

respondent No.1 to come along with him for purposes of entering

into a relationship and executing a marriage contract. The

question of validity of such marriage is not the main question

before this Court, but arises incidentally in discharge of its duty of

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treating the Minor in accordance with law and determining who

ought to be handed over the custody of the Minor till such time

that a court of competent jurisdiction rules on the existence and

legality of any relationship between the Minor and respondent No.

1. This Court can therefore not pass a declaration whether or not

the purported marriage contract between the parties is valid or

not as doing so would require definitively determining the age of

the Minor, which could require recording of evidence, and this

Court in its constitutional jurisdiction cannot undertake such

exercise. This Court must however decide whether the Minor who

has been produced before the Court and is presently lodged in

Dar-ul-Aman is to be released in the custody of the petitioner,

who is her mother, or is to be released in the custody of

respondent No.1, who claims to have solemnized a contract of

marriage with the minor. The issues that arise in relation to such

question include the following:

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?
W.P No. 4227 of 2021 Page |9

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?

8. The foundational purpose of rule of law is to enable

citizens to order their lives in accordance with provisions of law

and to be able to understand which actions are permissible that

the citizens are free to engage in for not having been prohibited,

and which actions are proscribed by law and consequently not to

be undertaken. Article 4 of the Constitution guarantees a right to

every individual to be dealt in accordance with law and states the

following:

4. Right of individuals to be dealt with in accordance

with law, etc. (1) To enjoy the protection of law and to be
treated in accordance with law is the inalienable right of every
citizen. Wherever he may be, and of every other person for
the time being within Pakistan.

(2) In particular—

(a) no action detrimental to the life, liberty, body,

reputation or property of any person shall be taken
except in accordance with law;

(b) no person shall be prevented from or be hindered in

doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law

does not required him to do.

9. In order for citizens to ensure that their actions do not

fall foul of the law attracting punitive liability, it is imperative that

law lays down the acceptable rule of conduct with clarity. It

cannot be countenanced that in a rule of law system an action

W.P No. 4227 of 2021 P a g e | 10

would be prohibited by law engaging in which constituted a crime

attracting significant jail time, while on the other hand the very

same action was to be treated as the foundation of a valid

contractual relationship. In order to make sense of the concept of

rule of law, the laws of a country must speak with one voice that

the citizens can understand in order to comply with the

requirements of law and know in advance which actions are

proscribed and would result in legal liability. This is why courts of

law while discharging the function of interpreting laws take a

holistic view of the statutes in force in order not to accord them

contradictory interpretations, as it is to be assumed that the

legislature while promulgating a law would not have intended to

enact provisions that would contradict other provisions of law also

in force. Principles of statutory interpretation thus require courts

to accord meaning to provisions of a statute in a manner that

they do not contradict the intent and purpose of other statutes to

the extent possible. And if in view of the clear text of a statute

such interpretation is not possible, there are other principles of

statutory interpretation (i.e. as a general matter the law later in

time prevails as the latest expression of legislative intent) applied

to lay down for the benefit of citizens the applicable requirements

of law with clarity.

10. Let us start with the framework of rights of children as

guaranteed by the Constitution. Children like adults have been

guaranteed the right to life and liberty by Article 9 of the

Constitution. Article 9 was interpreted expansively by the august

Supreme Court in Ms. Shehla Zia and others Vs. WAPDA

W.P No. 4227 of 2021 P a g e | 11

(PLD 1994 SC 693) as a meaningful right to enjoy life and not

just to exist. Through the 18th Constitutional Amendment, Article

25A was added to the Constitution, which holds that “the State

shall provide free and compulsory education to all children of the

age of five to sixteen years in such manner as may be

determined by law.” Thus, the Constitution itself declares that it

is mandatory for the State to ensure that children up to the age

of 16 are given educational instruction. Article 35 of the

Constitution holds that “the State shall protect the marriage, the

family, the mother and the child.”

11. In any rule of law framework, a distinction is drawn

between actions of adults versus the actions of children. The

reason is simple. Adults are assumed to understand the

consequences of their actions and are accordingly held

accountable for such consequences. Children, on the other hand,

are not assumed to have complete agency and the law therefore

acknowledges that they might neither understand the

consequences of their actions nor can be held completely

responsible for such actions. Every State through legislative

enactment determines the age at which a person is to be treated

as an individual with autonomy and human agency for purposes

of certain actions. This is the age at which his or her actions are

deemed valid and are to be given effect as he or she has the

capacity to understand their consequences, and the law

accordingly holds such person accountable for them. Part of the

question before us is the age at which a person in Pakistan is

deemed to have the agency and capacity to enter into a contract

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for marriage and grant informed consent while understanding the

myriad consequences and responsibilities marriage entails.

12. The case law on the question of competence of a Minor

to consent to a contract of marriage is divergent. It has been

assumed that the question of legal competence of a Minor to

solemnize a marriage contract is regulated by Muslim Personal

Law and not statutes enacted by the legislature. Research of the

case law on the subject throws up references from paragraphs of

Dinshaw F. Mulla’s commentary on Muslim Personal Law on the

basis of which it has been held that a female child is competent

to enter into a contract of marriage once she has attained

puberty. Paragraphs 250 and 251 of Mulla’s commentary on

Muslim Personal Law states the following:

250. Definition of Marriage.—Marriage (nikah) is defined to

be contract which has for its object the procreation and the
legalizing of children.

251. Capacity for marriage.—(1) Every Muhammedan of

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

(2) Lunatics and minors who have not attained puberty may
be validly contracted in marriage by their respective
guardians.

(3) A marriage of a Muhammedan who is of sound mind and

has attained puberty, is void, if it is brought about without his
consent.

13. Before we proceed with the question of application of

Muslim Personal Law to determine the legal competence of a child

to execute a marriage contract, a comment on Mulla’s

commentary on Muslim Personal Law as a source of law is called

for. Dinshaw Fardunji Mulla was not a muslim scholar who can

be accredited with religious expertise to interpret precepts of

Islam. Dinshaw Fardunji Mulla, of Zoroastrian faith by descent,

W.P No. 4227 of 2021 P a g e | 13

was a legal scholar who authored treatises on various subjects of

law, including contract law and Muslim Personal Law. His treatise

on Muslim Personal Law is therefore like any other legal

commentary by a scholar of law as opposed to the commentary

by a Muslim jurist with expertise or authority to interpret primary

sources of Islamic Law. Dinshaw Mulla’s commentary can

therefore not be treated as a source of law itself but like any

other treatise commenting on a subject of law can be used as a

reference and a commentary.

14. The suggestion that questions such as marriage,

maintenance and divorce for the Muslim citizens of Pakistan are

regulated by Muslim Personal Law and not by statute is

misconceived and emanates from a flawed reading of West

Pakistan Muslim Personal Law (Shariat) Application Act, 1962

(“Act of 1962”). Section 2 of the Act of 1962 states the

following:

2. Application of the Muslim Personal Law.—

Notwithstanding any custom or usage, in all questions
regarding succession (whether testate or intestate), special
property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority, legitimacy or bastardy,
family relations, wills, legacies, gifts, religious usages or
institutions, including waqfs, trusts and trust properties, the
rule of decision, subject to the provisions of any
enactment for the time being in force, shall be the Muslim
Personal Law (Shariat) in case where the parties are Muslims.
[Emphasis supplied]

15. It is evident from the text highlighted above that

application of Muslim Personal Law in relation to subjects

mentioned in section 2, including marriage, is subject to

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provisions of enactments for the time being in force in Pakistan.

Sections 3 and 4 of the Enforcement of Shari’ah Act, 1991 (“Act

of 1991”), which Act is subsequent to the Act of 1962, state the

following:

3. Supremacy of Shari’ah. (1) The Shari’ah that is to say

the Injunctions of Islam as laid down in the Holy Qur’an and
Sunnah, shall be the supreme law of Pakistan.

(2) Notwithstanding anything contained in this Act, the

judgment of any Court or any other law for the time being in
force, the present political system, including the Majlis-e-
Shoora (Parliament) and Provincial Assemblies and the
existing system of Government, shall not be challenged in any
Court, including Supreme Court, the Federal Shariat Court or
any authority or tribunal:

Provided that nothing contained herein shall affect the

right of the non-Muslims guaranteed by or under the
Constitution.

4. Laws to be interpreted in the light of Shari’ah.

For the purpose of this Act—

(a) while interpreting the statute-law, if more than one

interpretation is possible, the one consistent with the Islamic
principles and jurisprudence shall be adopted by the Court;
and

(b) where two or more interpretations are equally possible,

the interpretation which advances the Principles of Policy and
Islamic provisions in the Constitution shall be adopted by the
Court.

16. The question of application of Muslim Personal Law and

to what extent a High Court can employ understanding of Muslim

Personal Law in adjudicating matter before it came before this

Court in Shahab Saqib Vs. Sadaf Rasheed (W.P No.

W.P No. 4227 of 2021 P a g e | 15

2355/2015). It could be useful to reproduce excerpts of this

Court’s opinion rendered in Shahab Saqib:

30. As a historical matter, certain relationships, such as

marriage and interactions within the family, were left outside
the domain of public law and were regulated by the personal
law of the community in question. The customs and personal
laws of communities came to be guided by their respective
religious beliefs and edicts. And the process of codification of
personal laws of communities also began taking root.
Therefore, codified statutory provisions as well as uncodified
personal law both constituted sources of law guiding courts
in reaching decisions in areas that traditionally belonged to
the province of private law.

31. Overtime there has been a rethink on the virtues of

leaving certain relationships, such as marriage and whatever
transpires within it, in the private realm. The state has found
that it has a legitimate interest in regulating these
relationships as well, and we have consequently seen
legislation on the issue of domestic abuse and statutory law
regulating marriage, divorce and maintenance etc. The
Muslim Family Law Ordinance, 1961, is one manifestation of
the evolving jurisprudential approach with the state
regulating relationships that erstwhile fell outside the public
domain and were treated as a private matter regulated in
accordance with customs as informed by the religious beliefs
of communities.

33. …It can thus not be permissible for a judge to assume

the role of the legislature and determine what the Muslim
Personal Law ought to be (which determination is then
binding in terms of Articles 189 and 201 of the Constitution)
on the basis of his preference for a certain school of Islamic
thought or his personal understanding of Usool-al-fiqh and
Shariah.

34. The Constitution has thus addressed this issue as also

elucidated by the august Supreme Court in Malik Muhammad
Mumtaz Qadri (PLD 2016 SC 17). A provision of law that is
considered to fall foul of the commands of Shariah can be
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challenged only before the Federal Shariat Court in terms of

Article 203D of the Constitution and the jurisdiction of the
High Courts is ousted for such purpose under Article 203G…
Further the Council of Islamic Ideology has been created
under Article 228 of the Constitution, which is conferred with
the authority to make recommendations to the Parliament
and Provincial Assemblies as to ways and means to enable
Muslims of Pakistan to enable their lives in accordance with
the injunctions of Islam. It is then for the Parliament to
amend existing laws or promulgate new laws for such
purpose. It is however, nor for the High Court to usurp the
jurisdiction of the Federal Shariat Court on the one hand or
the Council of Islamic Ideology comprising religious scholars
and the Parliament on the other, by importing one’s personal
understanding of principles emanating from the Quran and
the Sunnah in deciding cases in the presence of clear
statutory provisions addressing the subject matter.

37. The Enforcement of Shariah Act, 1991, was then

promulgated and Section 4 clearly provides that laws to be
interpreted in the light of Shariah where more than one
interpretation of a statutory provision is possible and one
such interpretation is consistent with or promotes the
jurisprudence and principles of Islamic Law. In other words,
jurisprudence and principle of Islamic Law can be used as a
tool for interpretation of statutes where the text of the
statute in view of its plain meaning can be accorded more
than one interpretation. If the language of the statue
unequivocally conveys the intent of the law, no external
source of law can be employed to read into the statute.
Framed another way, the jurisprudence and principle of
Islamic Law do not trump the principle of casus omissus. A
court cannot supply to a statue language that is not provided
therein. It is only while undertaking an interpretive exercise
to resolve some ambiguity in statutory law that Section 4 of
the Enforcement of Shariah Act, 1991 comes into play and
the jurisprudence and principles of Islamic law can be used
as sources of law to guide the interpretive exercise.

It was therefore concluded that it is in view of the provisions of

the Constitution as well as the law laid down by the august

W.P No. 4227 of 2021 P a g e | 17

Supreme Court in Malik Mumtaz Qadri Vs State (2016 PLD

SC 17) it is not for a presiding judge to employ his own

subjective understanding of principles of Muslim Personal Law to

decide the case before the court in the presence of clear statutory

provisions addressing the subject matter.

17. In Farooq Omar Bhoja vs. Federation (Shariah

Petition 1/2020) the learned Federal Shariat Court dismissed a

challenge to sections 4, 5 and 6 of the Child Marriage Act, 1929,

for being in contradiction with principles of Islamic Law. It

observed that amongst Islamic Jurists there was disagreement

over whether or not the nikah of a minor girl is permissible.

However, it held that it was not un-Islamic for the state to

determine the permissible age for entering into a contract for

marriage. The question of what amounts to consent for purpose

of entering into a marriage contract was addressed by the

learned Federal Shariat Court in Muhammad Aslam vs. The

State (2012 P.Cr.L.J 11) wherein the following was held:

9. Awareness about marriage encompasses more

serious matters than mere carnal knowledge (relating
to physical feelings and desires of body). Therefore,
Islam places conjugal consent over high pedestal of
morality rather than carnality. Consequently consenting
adult is a person who has come of age enough, and
therefore responsible enough, to decide and understand
consequences of marriage.

10. Marriage involves a consent which is quite distinct

in definition and in differentiation from all types of
other consent, e.g., common consent, mutual consent,
or implied or express consent. Consent for marriage is
eloquent and declaratory, being more specific and
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expressive. Consent for marriage has deeper and wider

implications for criminal, civil, and family laws, e.g.,
inheritance, etc. Therefore, free consent, for marriage,
does not mean just acceding to or saying 'yes' to the
circumstantial or situational dictate. While analyzing
quality, value or worth and features of such a free
consent, following need to be considered: Ability of
exercising free choice; capacity (legal capacity: not only
sane, but mature mind, i.e., not only puberty, mere
majority but age of responsive and conscious
consent); capability to use that capacity; depending
upon capacity, impediments to or assistance available
for application of mind e.g., availability of assistance of
wali and wakil (guardian-counsel and supporter-
protector); in one's own interest or benefit; extent of
free availability of possible options to choose
from; environ of freedom.

In view of the jurisprudence produced by the learned Federal

Shariat Court, the State regulating the permissible age for

entering into a marriage contract or what constitutes a prohibited

object or purpose of a contract is not un-Islamic. Further, as

noted in Farooq Omar Bhoja, there is no agreement amongst

Islamic scholars and jurists with regard to the minimum

permissible age for marriage. Consequently, such age is to be

determined in view of provisions of enactments in force in

Pakistan at the present time, with a view to promoting Principles

of Policy prescribed in the Constitution while contradicting

principles of Islamic law and jurisprudence.

18. As will be discussed later in this opinion there are clear

statutory provisions proscribing acts that no one can engage in

when they involve a child under the age of 18. In the presence of

such clear and unequivocal statutory provisions criminalizing

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certain acts and behavior, there is no room to engage in any

further interpretive exercise to determine whether or not a child

marriage falls within the domain of prohibited conduct in

Pakistan. Before we consider enactments in force at the moment,

it must be noted that legislative instruments enacted prior to

Pakistan’s independence, while India was a British colony, largely

refrained from regulating conduct that was deemed to fall within

the province of private law of citizens (as also discussed in

Shahab Saqib). And consequently, the colonial regime sought

not to interfere with local practices beyond a point even when

certain practices were considered undesirable, such as child

marriages. The limitations that bound the colonial government do

not constrain the state in a democracy where the populace

administers itself through a representative government. The

Constitution provides for separation of powers and checks and

balances. Part of the system of checks and balances includes

institutional structures, in the form of the Council of Islamic

Ideology with the power to make recommendations to the

legislature to ensure that laws of the country are in consonance

with teachings of Islam, and in the form of a Federal Shariat

Court to consider whether the provision of a law is in conflict with

Islamic law and jurisprudence. It is due to the institutional

framework to enact laws for the welfare of the citizens in

accordance with the Constitution that the state of Pakistan is not

constrained in the manner that the colonial state was, and the

legislature can enact laws to proscribe abhorrent practices and

social customs and prescribe penal consequences to root out such

practices and customs. It is also important to bear in mind that

W.P No. 4227 of 2021 P a g e | 20

while the fundamental right of a child to have his/her best

interest protected might have been a recognized right even a

century ago, the standard of behavior that is required in order to

uphold such right has evolved over a period of time. And this

evolution in the expected standard of behavior, as prescribed, is

reflected in our legislation.

19. Let us now turn to the statutory instruments relevant for

our present purposes. We will first list the relevant provisions of

statutes enacted by the government in British India, which reflect

a policy of the colonizing power to avoid interference with local

customs and practices within the domain of private law.

(i) The Majority Act, 1875.

2. Savings:-- Nothing herein contained shall effect.-

(a) the capacity of any person to act in the following matters

(namely), marriage, dower, divorce and adoption;

(b) the religion or religious rites and usages of any class of

citizens of Pakistan;

3. Age of majority of persons domiciled in Pakistan.-

Subject as aforesaid, every Minor of whose person or
property, or both a guardian, other than a guardian for a suit
within the meaning of Order 32 of the First Schedule of the
Code of Civil Procedure, 1908 (V of 1908) has been or shall
be appointed or declared by any Court of Justice before the
minor has attained the age of eighteen years, and every
minor of whose property the superintendence has been or
shall be assumed by any Court of Wards before the minor has
attained that age shall, notwithstanding anything contained in
the that age shall, notwithstanding anything contained in the
Succession Act, 1925 (XXXIX of 1925) or in any other
enactment, his majority when he shall have completed his
age of twenty-one years and not before.

(ii) The Child Marriage Restraint Act, 1929.

W.P No. 4227 of 2021 P a g e | 21

2. Definitions.– In this Act:

(a) "child" means a person who, if a male, is under eighteen

years of age, and if a female, is under sixteen years of age;
(b) "child marriage” means a marriage to which either of
the contracting parties is a child;
(d) "minor” means person of either sex who is under
eighteen years of age.

4. Punishment for marrying a child.– If a person, not

being a minor, contracts child marriage, he shall be liable to
punishment of simple imprisonment which may extend to six
months and fine of fifty thousand rupees.
5. Punishment for solemnizing a child marriage.–
Whoever performs, conducts or directs any
child marriage shall be punishable with simple imprisonment
which may extend to [8][six months and fine of fifty thousand
rupees], unless he proves that he had reason to believe that
the marriage was not a child marriage.

6. Punishment for parent or guardian concerned in a

child marriage.– (1) Where a minor contracts a
child marriage, any person having charge of the minor,
whether as parent or guardian or in any other capacity, lawful
or unlawful, who does any act to promote the marriage or
permits it to be solemnized, or negligently fails to prevent it
from being solemnized, shall be punishable with simple
imprisonment which may extend to [9][six months and fine of
fifty thousand rupees]:
Provided that no woman shall be punishable with
imprisonment.
(2) For the purposes of this section, it shall be presumed,
unless and until the contrary is proved, that where a minor
has contracted a child marriage, the person having charge of
such minor has negligently failed to prevent
the marriage from being solemnized.

(iii) The Dissolution of Muslim Marriages Act, 1939.

2. Grounds for decree for dissolution of marriage. A

woman married under Muslim Law shall be entitled to obtain
a decree for the dissolution of her marriage on any one or
more of the following grounds, namely:
(vii) that she, having been given in marriage by her father or
other guardian before she attained the age of sixteen years,
repudiated the marriage before attaining the age of eighteen
years:
Provided that the marriage has not been consummated;

20. Section 2 of the Majority Act, 1875, excluded from its

scope the subject of marriage. The Dissolution of Muslim

Marriages Act, 1939, contemplated the possibility of a child under

W.P No. 4227 of 2021 P a g e | 22

the age of 16 being married off by her father or guardian. It was

due to these provisions, together with lack of a clear provision in

the Muslim Family Law Ordinance, 1961, prescribing the age for a

valid marriage, that courts while relying on commentaries on

Muslim Personal Law held that marriage with a female child under

the age of 16 while attracting criminal liability under sections 4, 5

and 6 of the Child Marriage Restraint Act, 1929, did not invalidate

the contract of marriage itself. In this regard various judgment

rendered by High Courts rely on the decision of the august

Supreme Court in Mst. Bakhshi Versus Bashir Ahmad (1970

PLD SC 323) where a 15 years old girl whose father had passed

away when she was very young and her mother had contracted a

second marriage, had contracted a marriage of her own will. Her

mother then lodged an FIR against the daughter’s husband for

kidnapping her. The girl was medically examined and the doctor

opined that she was between 16/17 years of age. The husband

filed an application before the High Court under section 491 of

Cr.P.C to secure the release of his wife. The High Court released

the minor girl and left it up to her to determine who she wished

to live with. The apex Court upheld the decision and observed

that where a girl below the age of 16 got married in violation of

provisions of the Child Marriage Restraint Act, 1929, the marriage

itself would not become invalid, although the husband who

contracted such or individuals who helped solemnize the marriage

may be held criminally liable. The apex Court further held that in

view of section 2 of West Pakistan Muslim Personal Law (Shariat)

Application Act, 1962, that question of marriage was to be

W.P No. 4227 of 2021 P a g e | 23

regulated by Muslim Personal Law in case where the parties were

Muslim.

21. The law as laid down in Mst. Bakhshi Versus Bashir

Ahmad (1970 PLD SC 323) is now distinguishable for a few

reasons. One, the said law was laid down before the

promulgation of the Constitution of 1973, which as discussed

above, now provides for an institutional framework, including the

Council of Islamic Ideology and the Federal Shariat Court, to

determine the question of compliance of statutory laws with the

injunctions of Islam. Two, that West Pakistan Muslim Personal

Law (Shariat) Application Act, 1962, which was subject to

enactments for the time being in force, was succeeded by the

Enforcement of Shariat Act, 1991, whereby principles of Islamic

law are to be employed as a tool where statutory provisions

create room for more than one interpretation. Three, and

probably the foremost distinguishing factor is that United Nations

Convention on the Rights of Child (“UNCRC”) was adopted by

the United Nations General Assembly in 1989 and entered into

force on 02.09.1990. UNCRC has done for the rights for children

what United Nations’ Human Rights Declaration did for

fundamental human rights more generally. Pakistan is a party to

the UNCRC and is under an obligation to comply with its

provisions. It has done so by enacting a string of legislation and

the introduction of Article 25A of the Constitution is also part of

the legislative measures taken by Pakistan to bring its laws in

compliance with the UNCRC. Reproduced below are some of the

most relevant clauses and sub-clauses of UNCRC that seek to

W.P No. 4227 of 2021 P a g e | 24

entrench, operationalize and protect the fundamental rights of

children across nation-states:

Article 1
For the purposes of the present Convention, a child means
every human being below the age of eighteen years unless
under the law applicable to the child, majority is attained
earlier.
Article 3
1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such
protection and care as is necessary for his or her well-being,
taking into account the rights and duties of his or her parents,
legal guardians, or other individuals legally responsible for
him or her, and, to this end, shall take all appropriate
legislative and administrative measures.
Article 4
States Parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation of
the rights recognized in the present Convention. With regard
to economic, social and cultural rights, States Parties shall
undertake such measures to the maximum extent of their
available resources and, where needed, within the framework
of international co-operation.
Article 9
1. States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except
when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular
case such as one involving abuse or neglect of the child by
the parents, or one where the parents are living separately
and a decision must be made as to the child's place of
residence.
2. In any proceedings pursuant to paragraph 1 of the present
article, all interested parties shall be given an opportunity to
participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular
basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by
a State Party, such as the detention, imprisonment, exile,
deportation or death (including death arising from any cause
while the person is in the custody of the State) of one or both
parents or of the child, that State Party shall, upon request,
provide the parents, the child or, if appropriate, another
member of the family with the essential information
concerning the whereabouts of the absent member(s) of the
family unless the provision of the information would be
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detrimental to the well-being of the child. States Parties shall

further ensure that the submission of such a request shall of
itself entail no adverse consequences for the person(s)
concerned.
Article 19
1. States Parties shall take all appropriate legislative,
administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the
care of the child.
2. Such protective measures should, as appropriate, include
effective procedures for the establishment of social
programmes to provide necessary support for the child and
for those who have the care of the child, as well as for other
forms of prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child
maltreatment described heretofore, and, as appropriate, for
judicial involvement.
Article 20
1. A child temporarily or permanently deprived of his or her
family environment, or in whose own best interests cannot be
allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws
ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement,
kafalah of Islamic law, adoption or if necessary placement in
suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of
continuity in a child's upbringing and to the child's ethnic,
religious, cultural and linguistic background.
Article 24
1. States Parties recognize the right of the child to the
enjoyment of the highest attainable standard of health and to
facilities for the treatment of illness and rehabilitation of
health. States Parties shall strive to ensure that no child is
deprived of his or her right of access to such health care
services.
3. States Parties shall take all effective and appropriate
measures with a view to abolishing traditional practices
prejudicial to the health of children.
Article 28
1. States Parties recognize the right of the child to education,
and with a view to achieving this right progressively and on
the basis of equal opportunity.
Article 31
1. States Parties recognize the right of the child to rest and
leisure, to engage in play and recreational activities
appropriate to the age of the child and to participate freely in
cultural life and the arts.
2. States Parties shall respect and promote the right of the
child to participate fully in cultural and artistic life and shall
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encourage the provision of appropriate and equal

opportunities for cultural, artistic, recreational and leisure
activity.

Article 32
1. States Parties recognize the right of the child to be
protected from economic exploitation and from performing
any work that is likely to be hazardous or to interfere with the
child's education, or to be harmful to the child's health or
physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social
and educational measures to ensure the implementation of
the present article. To this end, and having regard to the
relevant provisions of other international instruments, States
Parties shall in particular:
(a) Provide for a minimum age or minimum ages for
admission to employment;
(b) Provide for appropriate regulation of the hours and
conditions of employment;
(c) Provide for appropriate penalties or other sanctions to
ensure the effective enforcement of the present article.
Article 34
States Parties undertake to protect the child from all forms of
sexual exploitation and sexual abuse. For these purposes,
States Parties shall in particular take all appropriate national,
bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any
unlawful sexual activity;
(b) The exploitative use of children in prostitution or other
unlawful sexual practices;
(c) The exploitative use of children in pornographic
performances and materials.
Article 36
States Parties shall protect the child against all other forms of
exploitation prejudicial to any aspects of the child's welfare.

22. The issue of giving effect to international law came

before the august Supreme Court in The Hanover Fire

Insurance Company Vs. Muralidhar Banechand (PLD 1958

SC 138), wherein the following was held:

“It is therefore necessary to act in accordance with the

reciprocal arrangements arrived at between Pakistan and the
country concerned i.e. Pakistan and India in the present case;
otherwise our Courts would be passing orders inconsistent
with rules of international law. In this connection the following
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passage of Maxwell on Interpretation of Statute Tenth Edition

(p.148) is instructive:

“Under the same general presumption that the

legislature does not intend to exceed its jurisdiction,
every statute is to be so interpreted and applied, as for
as its language admits, as not to be inconsistent with the
comity of nations, or with the established rules of
international law. if, therefore, it designs to effectuate
any such object, it must express its intention with
irresistible clearness to induce a Court to believe that it
entertained it, for if any other construction is possible, it
would be adopted to avoid imputing such an intention to
the legislature. All general terms must be narrowed in
construction to avoid it. But if the statue is unambitious,
its provisions must be followed, even if they are contrary
to international law.”

This question came before the learned Sindh High Court in Najib

Zarab Limited Vs. Government of Pakistan (PLD 1993

Karachi 93), wherein the following was held:

“We are of the view that nations must march with the
international A community and the municipal law must
respect rules of international law, even as nations respect
international opinion. The comity of nations requires that
rules of international law may be accommodated in the
municipal law even without express legislative sanction
provided they do not run into conflict with Acts of Parliament.
But when they do run into such conflict, the sovereignty and
the integrity of the Republic and the supremacy of the
constituted Legislatures in making laws, may not be subjected
to external rules except to the extent legitimately accepted by
the constituted Legislatures themselves. …National Courts will
endorse international law but not if it conflicts with national
Law. National Courts being organs of the National State and
not organs of international law, must perforce, apply national
law if international law conflicts with it. But the Courts are
under an obligation within the legitimate limits, so to interpret
the municipal statute as to avoid confrontation with the
W.P No. 4227 of 2021 P a g e | 28

comity of nations or the well-established principles of,

international law. But if conflict is inevitable, the latter must
yield.

23. In view of the law on the issue of treaty obligation as

enumerated in Societe Generale De Surveillance

S.A. Versus Pakistan through Secretary, Ministry of

Finance Revenue Division, Islamabad (2002 SCMR 1694),

for provisions of treaty to be given effect in Pakistan it is for the

Parliament to enact legislation for such purpose. In the event that

municipal law of Pakistan is in conflict with provisions of

international law, the municipal law for the time being in force is

to be given effect by the courts in Pakistan notwithstanding any

conflicting international obligation. However, for purposes of

interpretation, where the express provisions of municipal law of

Pakistan do not contradict obligations undertaken by Pakistan by

becoming party to a treaty or convention, it is to be assumed that

the legislature never intended to set up municipal law in conflict

with Pakistan’s obligations under intentional law. Thus, where the

text of a statutory instrument provides room for interpretation,

the interpretation is to be undertaken such that it is not in conflict

with Pakistan’s obligation under international law. In the context

of UNCRC, however, Parliament has enacted legislation for the

specific purpose of bringing the laws of Pakistan in conformity

with the Pakistan’s obligations under UNCRC. These enactments

include the following:

(I) Article 25A of the Constitution.

The State shall provide free and compulsory education

to all children of the age of five to sixteen years in such
manner as may be determined by law.
W.P No. 4227 of 2021 P a g e | 29

It has already been discussed above that Article 25A

was enacted through the 18th Constitutional

Amendment whereby the State was placed under a

mandatory obligation to ensure the education of

children up to 16 years of age. The scope of Article

25A of the Constitution came before the august

Supreme Court in Liaquat Hussain Vs. Federation

(PLD 2012 SC 224) and the object of Article 25A

and its significance, was explained as follows:

Main purpose of education is to educate individuals so

that they get prepared to form the next generation of
leaders. It will yield strong families and strong
communities. Education plays an important role to
promote knowledge and understanding of rural
communities. In almost all societies, receiving
education and attending school is necessary to
achieve success. It is the key to move forward and
ultimately succeed in life. For preparing the children
and young people to effectively participate in the
development of the society, the schools play a vital
role. The knowledge and wisdom can only be gained
through the experience of learning.

(II) Protection of Women (Criminal Laws

Amendment) Act, 2006.
WHEREAS it is necessary to provide relief and
protection to women against misuse and abuse of law
and to prevent their exploitation;
AND WHEREAS Article 14 of the Constitution ensures
that dignity of man and, subject to law, the privacy of
home, shall be inviolable;
AND WHEREAS Article 25 of the Constitution
guarantees that there shall be no discrimination on
the basis of sex alone and that the State shall make
provisions for the protection of women;
AND WHEREAS Article 37 of the Constitution
encourages promotion of social justice and
eradication of social evils;
W.P No. 4227 of 2021 P a g e | 30

AND WHEREAS the objective of this Bill is to bring in

particular the laws relating to zina and qazf in
conformity with the stated objectives of the
Constitution and the injunctions of Islam,
AND WHEREAS it is expedient for the aforesaid
objectives further to amend the Pakistan Penal Code
(Act XLV of 1860), the Code of Criminal Procedure,
1898 (Act V of 1898, the Dissolution of Muslim
Marriages Act, 1939 (VIII of 1939), the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 (VII
of 1979), and the Offence of Qazf (Enforcement of
Hadd) Ordinance, 1979 (VIII of 1979) and for the
purposes hereinafter appearing,

375. Rape:- A man is said to commit rape who has

sexual intercourse with a woman under circumstances
falling under any of the five following descriptions,
(i) against her will.
(ii) Without her consent
(iii) With her consent, when the consent has been
obtained by putting her in fear of death or of hurt,
(iv) With her consent, when the man knows that he
not married to her and that the consent is given
because she believes that the man is another person
to whom she is or believes herself to be married; or
(v) With or without her consent when she is under
sixteen years of age.
Explanation: Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.

376. Punishment for rape (1) whoever commits

rape shall be punished with death or imprisonment of
either description for a term which shall not be less
than ten years or more, than twenty-five years and
shall also be liable to fine.
(2) When rape is committed by two or more persons
in furtherance of common intention of all, each of
such persons shall be punished with death or
imprisonment for life.

The statements of objects of the Protection of Women

(Criminal Laws Amendment) Act, 2006, read together

with provisions of sections 375 and 376 of PPC now

provide unequivocally that no child up till the age of

16 is to engage in sexual intercourse under any

circumstances. Even if a child were to consent to

engaging in sexual intercourse, the action would still

W.P No. 4227 of 2021 P a g e | 31

constitute rape for purposes of section 375 of PPC

punishable with death or life imprisonment

notwithstanding such consent.

(III) The National Commission on the Rights of

Child Act, 2017.
2. Definitions-- In this Act, unless there is anything
repugnant in subject or context,--
(b) ''child" means any person below the age of
eighteen years;
(c) ''child rights" mean and include, but limited to,
rights of child in the United Nations' Convention on
Rights of the Child and in any other domestic law;
15. Functions of the Commission.- The
Commission shall perform all or any of the following
functions, namely:-
(c) examine and review any law or policy or practice,
for the time being in force, for protection of child
rights and recommend measures for their effective
implementation;
(e) inquire into violation of child rights and
recommend to the relevant agency or department
initiation of proceedings in such cases;
(f) examine all factors that inhibit enjoyment of
rights of child, such as violence, abuse and
exploitation, trafficking, torture, pornography and
prostitution and recommend appropriate remedial
measures;

Through the definition of “child rights” in this Act, the

Parliament has provided the clearest possible

statement that the rights of children as guaranteed in

Pakistan include the rights as defined in UNCRC. It

has further put in place a statutory body to ensure

that the rights of children as defined in UNCRC and

domestic law are given effect and children are

protected against abuse and exploitation.

(VI) Juvenile Justice System Act, 2018.

2. Definitions. In this Act, unless there is anything

repugnant in the subject or context,-
(a) "best interest of the child" means the basis for
any decision taken regarding the child to ensure
W.P No. 4227 of 2021 P a g e | 32

fulfillment of his basic rights and needs, identity,

social well-being, physical, emotional and
psychological development;
(b) "child" means for the purposes of this Act a
person who has not attained the age of eighteen
years;

The Juvenile Justice System Ordinance, 2000 was

repealed and replaced by the Juvenile Justice System

Act, 2018. The provisions of this law take into

account the principles of agency and autonomy and

while holding children accountable for criminal

conduct proportionally, it creates a distinction

between criminal liability attributable to actions of

minors versus liability flowing from actions

attributable to adults. It further provides for a

different set of policy objects for initiating penal

action against minors, driven by considerations of

reform as opposed to deterrence.

(V) Islamabad Capital Territory Child Protection

Act, 2018.

Preamble. WHEREAS it is expedient to provide for

protection and care of children in Islamabad Capital
Territory from all forms of physical or mental violence,
injury, neglect maltreatment, exploitation, abuse and
matters ancillary thereto;
Definitions.- (1) In this Act, unless the context
otherwise requires,-
(d) "child" means a person who has not attained the
age of eighteen years;
(t) "sexual abuse and exploitation" includes the
inducement or coercion of a child to engage in any
unlawful sexual activity including use of children in
audio or visual images for child pornography, child
prostitution, trafficking within and between countries
for sexual exploitation and sale of children for sexual
purposes;
5. Child in need of care.- A child in need of
protection and care shall include a child who-
W.P No. 4227 of 2021 P a g e | 33

(a) has been subjected to or is under serious threat of

being subjected to child abuse or child exploitation
while in the care of parents, legal guardian or any other
person who has custody of the child in any manner; or
(b) is unattended, victim of an offence, child,
domestic and such other workers, found begging,
imprisoned with the mother or lives in an immoral
environment.

16. Care and placement of a child.- Notwithstanding

the provision of section 15, where the child care plan
specifies that the child will be at risk of significant
harm, abuse or exploitation if he remains in care of his
parent, legal guardian or other current carer, if any, an
application shall be made immediately to the Court for
the care and placement of the child in an appropriate
form of alternative care.

Through this Act, Parliament has declared that

upholding and protecting the rights and welfare of

children is ultimately the responsibility of the State,

and the relationship between a parent and a child is

not a private family affair that does not concern the

State. It creates an obligation for the State to ensure

that the needs of children up to the age of 18 are

provided for and in the event that any child is at the

risk of significant harm, abuse or exploitation, while

in the care of parents, legal guardians or other care-

givers, the State is to make sure that such child is

placed in an appropriate form of alternative care. This

law clarifies that to uphold the rights of a child to

protection and care is the obligation of a parent or

guardian. But where such parent or guardian is

delinquent in discharge of such obligation, the state is

under an obligation to take the child out of the care of

such parent or guardian and make arrangements for

alternative care in the best interest of the child to

W.P No. 4227 of 2021 P a g e | 34

provide for his/her safety, wellbeing, and physical,

emotional and educational needs, etc.

(VI) Criminal Law (Second Amendment) Act,

2016.

Sections 377A and 377B of PPC enacted through this

Act state the following:

377A. Sexual abuse. Whoever employs, uses, forces,

persuades, induces, entices, or coerces any person to
engage in, or assist any other person to engage in
fondling, stroking, caressing, exhibitionism, voyeurism
or any obscene or sexually explicit conduct or simulation
of such conduct either independently or in conjunction
with other acts, with or without consent where age of
person is less than eighteen years, is said to commit the
offence of sexual abuse.
377B. Punishment. Whoever commits the offence of
sexual abuse shall be punished with imprisonment of
either description for a term which shall not be less than
fourteen years and may extend up to twenty years and
with fine which shall not be less than one million rupees.

These provisions were enacted within PPC to discharge

Pakistan’s obligations under Articles 19 and 34 of

UNCRC. The object of the Act as reflected from the

statements of objects and reasons was to criminalize the

act of exposing children to obscene or sexually explicit

conduct. Section 377 as originally promulgated carried a

punishment of seven years imprisonment. The said

provision was amended by Act No. XXVII of 2018 with

effect from 22.05.2018 and punishment for the offence

of sexual abuse was enhanced to minimum of 14 years

and up to a maximum of 25 years and fine of up to one

million rupees.

(VII) Zainab Alert, Recovery and Response Act,

2020.
W.P No. 4227 of 2021 P a g e | 35

The preamble to this Act states that it is borne out of the

necessity to make provisions for protection of missing

and abducted children under the age of 18 years, which

the State must ensure in light of various conventions

that Pakistan is party to, with specific reference to the

“United Nations Convention on the Rights of the Child”.

Once again, the term “child” (in section 2(g) of this Act)

is defined as anyone who has not attainted the age of 18

years at the time of commission of the offence. Section

3 of the Act establishes the Zainab Alert, Response and

Recovery Agency for the purpose of effectively

dispatching Zainab Alerts (whenever a child is missing or

abducted), with the performance of the Agency to be

analyzed by the ICT Child Protection Advisory Board

(constituted under section 6 of the ICT Child Protection

Act, 2018).

24. In view of sections 375, 377A and 377B of PPC there is

no room for intendment within our legal framework to deem

permissible any act of a sexual nature involving a child even if it

is with an explicit consent of such child. In view of the National

Commission on the Rights of Child Act, 2017, read together with

the Majority Act, 1875, and Article 1 of UNCRC, a child means a

human being below the age of 18 years. The various statutes

cited above all adopt the same age for purposes of defining a

child. Pursuant to the National Commission on the Rights of Child

Act, 2017, the rights of a child in Pakistan have now been defined

to include all rights guaranteed to a child under the UNCRC. In

W.P No. 4227 of 2021 P a g e | 36

order to bring civil and criminal laws of Pakistan in compliance

with UNCRC the statutory instruments listed above have been

enacted by the legislature. Section 375 of PPC was consequently

amended to include intercourse with a child below the age of 16

within the definition of rape, which is punishable with death or life

imprisonment. Section 377A of PPC defines merely the attempt

to persuade or induce or entice a child below the age of 18 in any

sexually explicit conduct, with or without his/her consent, as

offence of sexual abuse punishable with a jail term of up to 25

years.

25. What is evident from sections 375 and 377A of PPC,

read together with UNCRC that has inspired these amendments,

is that PPC prohibits the involvement of children under the age of

18 in sexual conduct in any form whatsoever. Even persuading or

enticing a child under the age of 18 to engage in sexually explicit

conduct of any sort is a criminal offence punishable by up to 25

years in prison. In view of such scathing criminal liability imposed

on anyone engaging in or attempting in engage in sexually

explicit activity with children, it cannot be conceived that the civil

law applicable in Pakistan would nevertheless continue to treat a

contract for the specific purposes of engaging in sexual conduct

with a child to be a legal or valid contract. Our jurisprudence

continues to rely on Mulla’s definition of a marriage contract or

nikah as a “contract which has for its object the procreation and

the legalizing of children.” The contract of marriage by its very

definition is a contract whereby the parties agree to engage in

sexual relations, recognized by the State and society as

legitimate, for the purpose of procreation. The consideration and

W.P No. 4227 of 2021 P a g e | 37

object of a marriage contract thus essentially entails two

individuals agreeing to engage in legitimate sexual relations,

transforming the individuals into a family warranting state

protection. PPC, on the other hand, defines the very conduct for

purposes of which two individuals seek to enter into a marriage

contract as rape when it involves a child under the age of 16, and

sexual abuse when an invitation to engage in such conduct is

made to a child under the age of 18. How can a contract be

deemed to be valid when the mere invitation to enter into such

contract constitutes the offence of sexual abuse punishable by 25

years in prison, and the consummation of such contract

constitutes rape punishable by death or life imprisonment? Under

no conception of rule of law can an interpretation be accorded to

statutes operating with the realm of civil and criminal laws in a

jurisdiction such that a contract together with its objects and

purpose is deemed valid for purposes of civil law, when giving

effect to such object and purpose is defined as a crime punishable

by death or life imprisonment under the penal code. The conduct

for purposes of civil law is deemed legal and valid.

26. The validity of a marriage contract with a child as a

party needs to be analyzed not merely from the perspective of

the principle of agency and competence of the child to enter into

such contract, but also from the perspective of legality of the

very consideration and object of the marriage contract. Let us

reproduce here the relevant provisions of Contract Act, 1872.

11. Who are competent to contract.— Every person is

competent to contract who is of the age of majority according
to the law to which he is subject, and who is of sound mind,
W.P No. 4227 of 2021 P a g e | 38

and is not disqualified from contracting by any law to which

he is subject.

23. What consideration and objects are lawful and what not.—
The consideration or object of an agreement is lawful, unless-
it is forbidden by law; or is of such a nature that, if permitted,
it would defeat the provisions of any law; or is fraudulent; or
involves or implies injury to the person or property of
another; or the Court regards it as immoral, or opposed to
public policy. In each of these cases, the consideration or
object of an agreement is said to be unlawful. Every
agreement of which the object or consideration is unlawful is
void.

The question of illegal purpose of the contract has been the

subject of extensive commentary, some of which is reproduced

below.

Chitty on Contracts Volume I General Principles.

Illegality as to formation. Contracts may be illegal when

entered into because they cannot be performed in accordance
with their terms without the commission of an illegal act.
Thus the contract may involve a breach of the criminal law,
statutory or otherwise, alternatively it may be a statutory
requirement that the parties to the transaction posses a
license and where they do not the contract will be illegal as
formed.

Pollock & Mulla The Indian Contract & Specific

Relief Acts.
‘Forbidden by law’
An act of undertaking may be forbidden by law if it violates a
prohibitory enactment of the legislature or a principle of
unwritten law. In India, where criminal law is codified acts
forbidden by law seem practically to consist of acts punishable
under the Indian Penal Code, under the authority derived
from the legislature.…In particular, it may have to be
considered whether the intention of the legislator was to
prevent certain things from being done, or only to lay down
terms and conditions on which they might be done….Although
properly drawn acts or Regulations ought to leave no doubt
W.P No. 4227 of 2021 P a g e | 39

on that point such doubts are possible and have not been
uncommon. That which has been forbidden in the public
interest cannot be made lawful by paying the penalty for in
but an act which is in self harmless, does not become
unlawful merely because some collateral requirement
imposed for reasons of administrative convenience has been
omitted. Where the contract is such that it affects not only
parties to it, but if permitted or recognized would have such
wider repercussions affecting adversely the public at large, it
would be unlawful under s.23.

Express Prohibition

If expressly prohibited by law, the contract is void ab initio

and cannot be enforced at all. There has to be a clear and
unequivocal declaration by the Legislature in the public
interest that the particular kind of contract shall be entered
into…S.23 lays down that the object of an agreement
becomes unlawful if it was of such a nature that, if permitted,
it would defeat the provision of any law.

Anson’s Law of Contract

(b) Implied Prohibition: Contract Illegal.

The Courts must determine whether the statutory words,

construed in context including the purpose of the statue,
prohibit and penalize only the prescribed conduct or whether
they additionally prohibit the contract. If, for example, the
purpose of the statue is to protect the public from injury or
fraud the inference is likely to be that contracts made in
contravention of its provisions are prohibited. Again, if a
contract has as its whole object the doing of the very act
which the statute prohibits, it can be argued that you can
hardly make sense of a statue which forbids an act and yet
permits to be made a contract to do it.

27. In view of section 23 of the Contract Act, 1872, courts

refuse to enforce contracts forbidden by law i.e. where the

consideration or object of the agreement is itself forbidden by law

or the contract is of a nature that could defeat the provisions of

law if given effect. Neither the State nor a court of law can
W.P No. 4227 of 2021 P a g e | 40

become an instrument in facilitating or enforcing a contract

forbidden by law or enabling an object which is forbidden and

attracts criminal liability. In this context, no sensible distinction

can be drawn between rules regulating behavior that fall within

the domain of civil law and those that fall within the domain of

criminal law. When PPC explicitly and unequivocally provides that

a child under the age of 18 is not even to be enticed or invited to

engage in sexually explicit conduct of any form, notwithstanding

the child’s consent to such sexual conduct, and anyone engaging

with or inducing a child to engage in sexual conduct is liable to

punishment, a court cannot read into sections 375 and 377A of

PPC the suggestion that such conduct would not attract criminal

liability if the child in question was party to a marriage contract

within the scope of which such sexual conduct was to take place.

Such interpretation would make a mockery of the concept of rule

of law by failing to provide in clear terms the conduct that is

permissible in the eyes of law and the conduct that is prohibited

and attracts penal liability. It would also be contrary to the Article

9 rights of a child to meaningful life read together with the rights

guaranteed under UNCRC. Such interpretation would also

undermine public policy as reflected in a string of legislative

enactments promulgated for purposes of bringing the laws of

Pakistan in compliance with the rights of children as defined

under UNCRC and creating statutory mechanisms to ensure that

such rights are upheld.

28. In view of sections 375 and 377A of PPC read together

with provisions of UNCRC any contract of marriage entered into in

which one of the contracting parties is below the age of 18 would

W.P No. 4227 of 2021 P a g e | 41

be a contract the object and consideration of which is unlawful

and which is consequently forbidden by law. Any such contract is

therefore void in view of provisions of section 23 of the Contract

Act. Giving effect to such prohibited contract would not be

permissible as it would be tantamount to defeating provisions of

sections 375 and 377A of PPC as well as Pakistan’s obligations

towards children as defined under the UNCRC. Such illegal

contract can neither be registered under provisions of the Muslim

Family Laws Ordinance, 1961 nor be given recognition or effect

by a court of law, as powers vested in the executive to register

marriage contracts and in the courts to give effect to valid

contracts and promises cannot be exercised in order to defeat

provisions of the law.

29. Our jurisprudence on the distinction between directory

and mandatory provisions of law is clear. It was held in Province

of Punjab Vs. Javed Iqbal (2021 SCMR 328) that:

“The ultimate test is the intent of the legislature and not the
language in which the intent is clothed. The object and
purpose of enacting the provision provide a strong and clear
indicator for ascertaining such intent of the legislature.1 The
intention of the legislature must govern and this is to be
ascertained not only from the phraseology of the provision
but also by considering its nature, its object, and the
consequences which would follow from construing it one way
or the other. This exercise entails careful examination of the
scheme of the Act in order to discover the real purpose and
object of the Act. A provision in a statute is mandatory if the
omission to follow it renders the proceedings to which it
relates illegal and void, while a provision is directory if its
observance is not necessary to the validity of the proceeding.
One of the important test that must always be employed in
order to determine whether a provision is mandatory or
directory in character is to consider whether the non-
W.P No. 4227 of 2021 P a g e | 42

compliance of a particular provision causes inconvenience or

injustice and, if it does, the court would say that that
provision must be complied with and that it is obligatory in its
character.”

It was held in Province of Punjab Vs. Murree Brewery

Company Limited (2021 SCMR 305) that:

6. The test to determine whether a provision is directory or

mandatory is by ascertaining the legislative intent behind
the same. The general rule expounded by this Court is that
the usage of the word 'shall' generally carries the
connotation that a provision in mandatory in nature1.
However, other factors such as the object and purpose of
the statute and inclusion of penal consequences in cases of
non-compliance also serve as an instructive guide in
deducing the nature of the provision.

In Murree Brewery the apex Court cited with the approval the

decision of Indian Supreme Court in New India Insurance Co. Ltd.

Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757)

where it was held that:

If the provision is couched in prohibitive or negative

language, it can rarely be directory, the use of peremptory
language in a negative form is per se indicative of the
interest that the provision is to be mandatory.

It further cited the decision of the Indian Supreme Court in May

George Vs. Special Tehsildar and others ((2010) 13 SCC 98)

where one of the factors to be taken into account in construing

the intent of the legislature was that:

The Court has to give due weight age to whether the

interpretation intended to be given by the Court would further
the purpose of law or if this purpose could be defeated by
terming it mandatory or otherwise.
W.P No. 4227 of 2021 P a g e | 43

30. In relation to the question before this Court there is no

manner of doubt that provisions of sections 375 and 377A are

mandatory as they criminalize sexual intercourse with a child

under the age or 16 or inviting or enticing a child under the age

of 18 years to engage in sexually explicit conduct. The provisions

are also mandatory and in public interest as they are framed to

protect the rights of child to life and liberty as guaranteed by the

Article 9 of the Constitution read together with provisions of

UNCRC. The intent of the various legislative instruments cited

above is to ensure that no child is subjected to an environment or

activity that is deemed by the state to not be age appropriate. A

child is defined as an individual under the age of 18 years. The

obligation of the state to provide free education to children up to

the age of 16 has been guaranteed by the Constitution. Likewise,

under Article 9 read together with provisions of UNCRC, children

have the right to be cared for, to play, to leisure, and to not be

burdened with responsibilities not appropriate for children.

31. The relationship of marriage does not just entail

engagement in permissible sexual conduct. The purpose of

marriage is to enter into a contract whereby two people agree to

become a family and look after one another, and further agree to

bring children into this world and be responsible for the safety

and physical and emotional wellbeing of such offspring. The

Guardian and Wards Act, 1890 read together with Islamabad

Capital Territory Child Protection Act, 2018, provides that a child

under the age of 18 remains in the supervision and guardianship

of an adult whether such adult is a parent, guardian or other

caregiver provided by the State or appointed by a court of

W.P No. 4227 of 2021 P a g e | 44

competent jurisdiction. Section 21 of the Guardian and Wards

Act, 1890, makes some allowance for a minor being the guardian

of his own wife or child. But this law was enacted over 132 years

ago in colonial India, and section 21 is now in conflict with

provisions of UNCRC, to give effect to which Islamabad Capital

Territory Child Protection Act, 2018, has been promulgated, and

also sections 375 and 377A of PPC, as discussed above. In view

of the statutory provisions enacted by Parliament to give effect to

UNCRC, our law no longer creates a carve-out for purposes of

marriage to allow a child under the age of 18 years or even under

the age of 16 years to enter into a contract of marriage and bring

her own children into this world for whose safety, welfare and

well-being she would be responsible while being a child herself

and under somebody else’s care.

32. The issue of competence of a child to enter into a

contract came before the august Supreme Court in Yar

Muhammad Khan Vs. Sajjad Abbas (2021 SCMR 1401), in

which the court held the following:

8. To protect minors and their interests a minor cannot

enter into an agreement nor grant a power of attorney to
another to do so. Section 11 of the Contract Act, 1872
explicitly stipulates that only those who arc 'of the age of
majority according to the law to which he is subject' are
'competent to contract'; the law is the Majority Act, 1875
section 3 whereof stipulates eighteen years as the age of
majority. This Court in the case of Abdul Ghani v. Yasmeen
Khan (above, which was decided by three learned Judges)
held that: The provisions as enumerated in section 11 of the
Contract Act, 1872 would make minor incompetent to enter
into any contract, therefore, contract by minor was void ab
initio and not merely voidable. Such contract would have no
existence in the eye of law and was incapable of satisfaction
W.P No. 4227 of 2021 P a g e | 45

or confirmation' (paragraph 13, page 847B). Therefore, the

General Power of Attorney dated 8 February 1975 is void to
the extent of a minor. This leads on to the question of
limitation and 'whether the suit was belatedly filed. in
Hamida Begum v. Murad Begum (above, a decision by four
learned Judges) it was held that: `... where the deed or
instrument is ab initio null and void, in which case it can be
treated as a nullity without having to be cancelled or set
aside. If on the other hand, the instrument is only voidable,
then it would be necessary to have it set aside or cancelled
in order to remove the impediment in the way of the
plaintiff (at page 50E).

33. Section 3 of Majority Act, 1875, was challenged before

the learned Federal Shariat Court in Muhammad Fayyaz and

another Vs. Islamic Republic of Pakistan through

Secretary, Ministry of Religious Affairs, Islamabad and 4

others (PLD 2007 FSC 1), in which the said section was not

found to be repugnant to the injunctions of Islam and in finding

so the learned Federal Shariat Court also observed the following:

“ It is also worth mentioning that mere manifestation of the

physical symptoms of attaining puberty, as submitted by
the learned petitioner, are not by themselves sufficient to
hold that the concerned person has also attained the age of
majority/maturity. Beside that, there are definitely other
mental, emotional and psychological aspects also that form
necessary basis for that purpose. The Holy Qur'an has, in
certain matters, considered and referred to the same, as we
may conveniently find in Verse No.6 of Surah Annisa and
Verse No.59 of Surah Annoor. Moreover, it is noticeable
that the ages in attaining physical puberty vary from place
to place and from person to person and no definite criteria
can be specified to exactly determine who attained puberty
and on which date. This is the reasons why even the
renowned Muslim Scholars are not unanimous on this point
and have held divergent opinions in respect of age of
puberty.”
W.P No. 4227 of 2021 P a g e | 46

34. The argument that a female child who has attained

puberty is legally competent to execute a contract of marriage

makes no logical sense, apart from there being no settled

principle within Islamic jurisprudence stating that puberty alone is

the test for determining a female’s competence to contract

marriage. The question of reaching puberty has to do with

physical aspects of the growth of a female child. Merely because

a child has grown physically and biologically to an extent that she

can endure sexual activity or intercourse does not automatically

mean that she has the legal capacity to marry or the agency to

contemplate the consequences that marriage entails i.e. that she

has the mental and psychological maturity to reach such decision

in her own best interest. Much research has been produced on

factors that contribute to a female child reaching puberty.

Children as young as ten or eleven years of age can possibly

reach puberty as the timing of puberty has been found to be

related to physical characteristics including height, weight and

body mass, as well as the diet of the individual and her

geography etc. If puberty is to be the applicable test, would we

deem a 10-year-old to be competent to contract marriage and

engage in sexual intercourse because she has attained puberty?

Research suggests that early maturing “adolescents” are at a

higher risk for psychological and behavioral problems because

they are not emotionally or formatively ready for the major

biological, social and emotional changes comprising puberty.

Consider for example the following research:

“Individual Differences in Boys’ and Girls’ Timing and

Tempo of Puberty: Modeling Development With
W.P No. 4227 of 2021 P a g e | 47

Nonlinear Growth Models.” By Kristine Marceau,

Nilam Ram, Renate M. Houts, Kevin J. Grimm, and
Elizabeth J. Susman. (Developmental Psychology,
47(5), 1389–1409.)

To date, the vast majority of literature relating puberty to

psychological and physical development examines the
relative timing of puberty compared with same-age and sex
adolescents. Timing of puberty has been related to physical
characteristics, including height (e.g., Belsky et al.,
2007; Huang, Biro, & Dorn, 2009; Li et al., 2009; Llop-
Viñolas et al., 2004), weight (e.g., Tanner-Smith, 2010),
and body mass index (BMI; e.g., Davison, Susman, & Birch,
2003; He & Karlberg, 2001; Huang et al., 2009). In line
with biological influences, earlier timing is generally
associated with greater physical size and/or earlier physical
growth.

There is strong and consistent evidence that deviations

from normative timing (earlier or later timing) are related
to psychological outcomes, including internalizing and
externalizing problems (e.g., Ge, Brody, Conger, & Simons,
2006; Ge et al., 2002; Graber, Lewinsohn, Seeley, &
Brooks-Gunn, 1997; Mendle, Turkheimer, & Emery, 2007).
Two hypotheses that explain how timing relates to negative
psychological sequelae have gained traction. The
maturational deviance hypothesis posits that adolescents
who develop either earlier or later relative to peers
experience psychological distress and manifest behavior
problems (Petersen & Taylor, 1980). The developmental
readiness hypothesis posits that early maturing adolescents
are at highest risk for psychological and behavioral
problems because they are not emotionally or cognitively
ready for the major physiological, social, and emotional
changes comprising puberty (e.g., Ge et al., 2002).

35. To use puberty as a test for legal competence for a

female child to enter into marriage contract would be an unsure

test in any event. Sections 375 and 377A of the PPC attach very

serious criminal liability to engagement in sexual conduct with a

W.P No. 4227 of 2021 P a g e | 48

child under the age of 18. It has already been held above that a

marriage exclusion cannot be read into sections 375 and 377A of

PPC as that would fall foul of the principle of casus omissus. But

even if it were possible to render such interpretation and hold the

female child being when in a marriage contract is an exception to

the liability that would otherwise flow from sections 375 and

377A of PPC, how would any individual be aware of the fact as to

whether the female child has attained puberty or not prior to

engaging in conduct which would attract liability under sections

375 and 377A of PPC. The consent of a female child is no excuse

or justification where conduct qualifies as rape or sexual abuse.

And it is only a female child who could know with certainty

whether or not she has attained the age of puberty or not. How

could such severe criminal penalty, as provided under sections

375 and 377A of PPC, be justifiable in a fair rule of law system if

the accused had no basis for confirming in advance whether or

not his conduct constituted an offence punishable by death or life

imprisonment. As has been explained above, in any just and fair

rule of law system, the law must provide clearly what conduct is

proscribed and falls beyond the redline and what conduct is

permissible. Sections 375 and 377A do so by providing a very

clear redline that is not to be crossed even inadvertently. The

suggestion that a female child having attained puberty becomes

qualified to contract marriage and transform a crime, as defined

in sections 375 or 377A of PPC, into a legitimate act, if acceded

to, would make a mockery of the need for certainty within the

penal justice system.

W.P No. 4227 of 2021 P a g e | 49

36. A review of our corpus of laws also suggests that we use

the age of 18 as the trigger point for vesting various rights in

citizens. A few examples are as follows:

National Database and Registration Authority

Ordinance, 2000.

10. National Identity Cards. —(1) The Authority shall issue

or renew, or cause to be issued or renewed, in such manner
and on terms and conditions, subject to every citizen who has
attained the age of eighteen years and got himself registered
under section 9, a card to be called National Identity Card in
such form, with such period of validity upon payment of such
fee in such form and manner as may be prescribed:

Provided that all cards issued under section 5 of the

National Registration Act, 1973, (LVI of 1973) to such citizens
as stood registered under section 4 of the said Act
immediately before the commencement of this Ordinance
shall be deemed to have been issued under this Ordinance
and shall, subject to sections 17, 18 and 30 remain valid till
such period as the underlying registration of the citizens to
whom such cards are issued remains valid in terms of the first
proviso to subsection (1) of section 9:

Provided further that before issuing or renewing a card

under this section, the Authority may require a person to
surrender a National Identity Card earlier issued to him under
this Ordinance or the National Registration Act, 1973, (LVI of
1973) or otherwise satisfy the Authority as to the factum of
his having totally abandon the use of any such earlier card
and, till such time as he surrenders such earlier card or
otherwise satisfies the Authority as aforesaid, the Authority
may not issue or renew a card.

(2) Notwithstanding anything contained in this Ordinance, all

such National Identity Cards as are to be issued to a citizen
under this Ordinance by means of a manual or computerized
laser printing process (as applicable in the Districts of
Islamabad and Rawalpindi) shall not be issued for a period of
validity beyond two years after the commencement of this
Ordinance, or such longer or shorter period as may be
notified by the Federal Government with a view to promoting
W.P No. 4227 of 2021 P a g e | 50

uniformity, authenticity and technological advancement in the

registration for and issuance of National Identity Cards.

19. Cards necessary for certain purposes.—(1) No citizen

who has attained the age of eighteen years but does not
possess or produce a National Identity Card shall be granted
a passport, permit or other travel document for going out of
Pakistan.

The Elections Act, 2017

2(xli) “voter” means—

(a) in relation to an Assembly or a local government, a person

who is enrolled as a voter on the electoral roll of any electoral
area in a constituency; and

(b) in relation to the Senate, a person who—

I. for election to a seat from a Province, is a Member of the

Provincial Assembly;

II. for election to seats from the Islamabad Capital Territory,

is a Member of the National Assembly; and

III. for election to a seat from the Federally Administered

Tribal Areas, is a Member of the National Assembly elected
from the Federally Administered Tribal Areas.

26. Preparation of preliminary electoral rolls---

(2) A person shall be entitled to be enrolled as a voter in an

electoral area if he—

(a) is a citizen of Pakistan;

(b) is not less than eighteen years of age;

(c) possesses a National Identity Card issued by the National

Database and Registration Authority at any time till the last
day fixed for inviting claims, objections and applications for
preparation, revision or correction of electoral rolls;

(d) is not declared by a competent court to be of unsound

mind; and

The Provincial Motor Vehicles Ordinance, 1965.

4. Age limit in connection with driving of

motor vehicles.– (1) No person shall drive in any public
place–
W.P No. 4227 of 2021 P a g e | 51

(i) a motor cycle or an invalid carriage, unless he has

attained the age of eighteen years;

(ii) a motor car, otherwise than as a paid employee, unless

he has attained the age of eighteen years;

(iii) a motor car as a paid employee or a transport vehicle,

unless he has attained the age of twenty-one years;

(iv) a heavy transport vehicle, unless he has attained the age

of twenty-two years.

36. For rule of law to make sense, the corpus of laws

applicable within a jurisdiction must speak with one voice. In view

of the provisions of the statues cited above, it is patent that our

laws define a child as a person who has not reached the age of

18. We do not allow such child who has not reached the age of 18

to be issued a CNIC or be granted travel documents which would

enable him/her to travel without the consent of his parents or

guardians. We do not allow a citizen to exercise his right to vote

guaranteed under the Constitution till the time that he/she

reaches the age of 18. We do not allow children to drive motor

vehicles till such time that they reach the age of 18. We do not

trust children, till they have reached the age of 18, to be able to

take care of their own day-to-day needs without being placed

under the supervision of a parent, guardian or other caregiver. It

would indeed be incredible if in face all these statutory provisions

we were to conclude that while we do not find a child below the

age of 18 to possess the agency, legal capacity and qualification

to look after himself/herself, we find it perfectly normal for such

child to be capable and competent to decide whether or not to

execute a marriage contract and be responsible for his/her

spouse and children and assume all responsibilities and burdens

W.P No. 4227 of 2021 P a g e | 52

that come with the relationship of marriage. And that we find

such child to be qualified to engage in sexual intercourse and

bring offspring into the world that such child would then be

responsible for.

37. A key measure of civilization in a polity is how it treats

the most vulnerable segments of the population. Children, and

within children the female sex, constitute the most vulnerable

segment of our populace. Guided by its obligation to protect the

marriage, the family, the mother and the child, under Article 35

of the Constitution read together with Articles 9, 14 and 25, the

Parliament has promulgated a string of laws to protect the life,

liberty, dignity and equality of children and to give effect to their

rights as articulated in the UNCRC that Pakistan is a signatory to.

Under the Constitution, the judiciary is the machinery provided to

uphold fundamental rights of citizens and breath meaning into

constitutional guarantees. Courts are thus obliged to protect

children against being employed in any conduct that has been

proscribed by Parliament by defining it as a crime, as has been

done by Sections 375 and 377A of PPC.

38. In view of the above, this Court has come to the

following conclusions:

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
W.P No. 4227 of 2021 P a g e | 53

marriage contract merely because she manifests the physical

symptoms of having attained puberty. In view of provisions of
the Muslim Family Law 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
W.P No. 4227 of 2021 P a g e | 54

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.

39. 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

W.P No. 4227 of 2021 P a g e | 55

determination of such questions is left to the court of competent

jurisdiction before which such questions are raised.

40. 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.

41. 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,

 W.P No. 4227 of 2021 P a g e | 56

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. This Court

would like to express its appreciation and gratitude to Mr. Shazeb

Nawaz Khan, the learned State Counsel, for his assistance.

(BABAR SATTAR)
JUDGE

Announced in the open Court on 09.02.2022.

JUDGE
Approved for reporting.
Saeed.