ISLAMABAD: The federal government may consider amending the law pertaining to the minimum marriage age of girls in the light of the recent Islamabad High Court judgment.
Justice Aamir Farooq of the Islamabad High Court while giving an order in a case related to harassment and early marriage of a girl had observed that the federal government should intervene and legislate on the matter to remove all the anomalies.
Keeping in view the anomalies in law with respect to the age of a person to contract Nikah, the Islamabad High Court had suggested the Law and Justice Ministry to make a law on the minimum age of girls to get married while passing a judgment in a similar case. When contacted, Federal Law and Justice Secretary Raja Naeem Akber
said that the court order shall be complied with and the department concerned and ministries like human rights would also be consulted before making any amendment(s) to the law. “Though no age limit is prescribed in the Holy Quran and as such the criteria for entering into Nikah is fluid, there is no bar on the state to legislate upon the matter and fix the age for the said purposes as has been done by the government of Sindh”, states the order of the learned court.
The order while explaining a verse (No 6) of Surah Nisah said: “It is not only balughat/puberty but also rushd, which is the second important criteria for a person to enter into Nikah. According to the Dictionary of Modern Written Arabic by Hans Wehr, the word ‘Rushd’ has been explained/defined as integrity of (one’s) actions, proper, sensible conduct; reason, good sense, senses; consciousness; maturity (of the mind). Meaning thereby a person who has attained puberty and he/she can form good decision and have maturity of mind can contract Nikah”.
The order further states: “According to the Hanafi School of thought proper age for marriage, as per Imam Abu Hanifa (RA), for male is 18 years and for female is 17 years”. “D.F. Mulla in Muhammadan Law has mentioned the age for a Hanafi woman as 15 years. Under Section 4 of the Child Marriage Restraint Act, 1929, it is an offence for a person above 18 years to undertake child marriage. Child is defined under section 2 (a) ibid as, a male who is under 18 years and female who is under 16 years of age. Likewise, according to section 6 ibid, it is an offence for a parent or guardian to marry a child. Keeping in view the menace of child marriage, the government of Sindh had enacted the Sindh Child Marriages Restrained Act, 2013 and the same defines child as less than 18 years of age (both for male and female)”, said the order.
However, quoting a judgment of the Honorable Federal Shariah Court relating to a similar case in 2021, it was stated in the judgment that it is settled principle of Shariah if any Mobah (act appears to be harmful to society collectively or to a particular segment of a society, the state has power to make that act prohibited so that society can be protected from a larger damage.
The Supreme Court of Pakistan while deciding the appeal from a celebrated judgment of the larger bench of the Lahore High Court in a case titled Hafiz Abdul Waheed versus Mrs Asma Jehangir and another (PLD 2004 SC 219), had opined that the consent of a Wali is not required and a sui juris Muslim girl can enter into Nikah/marriage of her own free will.
“Black's Law Dictionary defines sui juris as a person who is of full age and capacity. The full age or maturity in Pakistan is 18 years.” In light of the above laws, the judgment said that the position that emerges for the purposes of Islamabad Capital Territory (ICT) is that under the Child Marriage Restraint Act, 1929, it is an offence for any person who gives in Nikah any girl below the age of 16 years. A sui juris Muslim girl can enter into a contract without a Wali (sui juris means 18-year old girl).
According to Hanfi School of thought, a girl can enter into Nikah on attaining the age of 17 years. According to D.F. Mulla, a girl can enter into Nikah on attaining the age of 15 years. In In any case, for a person to contract Nikah, either male or female, he/she not only needs to have attained puberty but also to be rushd, i.e. a person who is mature enough to form a reasonable judgment.
Barrister Zafarullah Khan, ASC, who was appointed an amicus curiae to assist the court, had contended that the law is vague and not clear about the age of a person to contract Nikah, especially in Islamabad Capital Territory (ICT). And therefore, it was suggested in the order that the case about marriages be forwarded to the ministries of law, justice and interior for considering the position of law and making amendment(s) therein in light of the observations made hereinabove.