Taj ul Malook Vs Inspector General of Police Punjab etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P No. 47073 of 2025

Taj-ul-Malook Vs. Inspector General of Police, Punjab, Lahore, etc.

JUDGMENT

DATE OF HEARING: 27.08.2025

PETITIONER BY: Mr. Muhammad Usman Anwar Chaudhary, Advocate RESPONDENT No.1 TO 6 Mr. Faza Ullah, A.A.G. along BY: with Bashir SI.

RESPONDENT No.7 TO 9 Ch. Javed Iqbal Wains, BY: Advocate

TARIQ MAHMOOD BAJWA, J:- By means of instant constitutional petition, petitioner seeks recovery and production of his daughter namely Mst. Zainab aged about 15 years and 08 months from the illegal/improper custody of respondent Nos.7 to 8.

2.On 21.08.2025 report was submitted by the police maintaining that the detenue has not been recovered, however, today detenue has been produced before the Court.

3.On Court”s query, detenue submitted that no one has illegally detained her. She had attained puberty and while exercising her right of choice, she contracted marriage with respondent No.7/Mudassar Ali and she wants to live with her husband, nothing is available on record to rebut the said declaration of the detenue qua her puberty. At this verge, learned counsel for the petitioner raises the question of her age and validity of marriage while referring the definition of the child provided in the legal dictionary/definition clause of Child Marriage Restraint Act, 1929 i.e. ““Child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age.”

4.As a result of campaigns by medical doctors, social workers/scientists and women opposed to the marriage of minors, some restrictions were placed on the age of marriage, not in our

country rather in most of the Muslim countries. The Child”s Marriage Restraint Act, 1929 fixed the minimum age of marriage. Under this Act, the child marriage was never invalid/void, this Act, a piece of penal legislation. The British wanted to keep the law in conformity with the traditional rules of Islamic law. Nevertheless, child marriages continued in practice.

5.Subsequently, amendment has been made in the said Act even after the British regime, the age of the child in definition clause was enhanced, again without declaring the marriage would be invalid or void, if below the minimum age threshold. It means no change was introduced qua its effects on marriage. The said Act was examined by the Federal Shariat Court in case law reported as “Farooq Omar Bhoja Vs. Federation of Pakistan through Ministry of Law and Justice of Pakistan through Secretary, Islam” (PLD 2022 Federal Shariate Court 1), on the touchstone of the injunctions of Islam, however, observed/held the fixing of an age limit to enter into marriage by the State or Government, as is done in the impugned law, is not against the injunctions of Islam, at the cost of repetition, the said judicial organ directly or impliedly not rendered the ratio that the marriage below the age limit enshrined in the law would be void/invalid.

6.Mohammedan Law is an uncodified Law, which derives its source from the Quran, Sunna, Ijma, Kiyas, Istihisan, Istislah, Istidlal, Fatawas, and customs. Few legislative steps have also been taken. In Islamic/Mohammedan law, there are two basic attributes of legal competence to contract a marriage:

(a)Sound mind, and

(b)Puberty (Bulugh)

As regards puberty, the following points are notable:

(i)Puberty is a physical phenomenon to be ascertained by evidence.

(ii)In the absence of evidence to the contrary it is generally presumed that a person who has completed the fifteenth year of age has attained puberty.

(iii)The possibility of attaining puberty by a boy as well as by a girl before the age of fifteen years is, however, recognized by law.

7.D.F. Mulla in explanation of paragraph No.251 of his classic/learned work principles of Mohammedan Law, jotted down, “Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.” Petitioner has himself mentioned the age of his daughter Mst. Zainab as 15 years and 08 months. The detenue knew the best, question of biological changes in her body and puberty. The Islamic Jurist/Islamic Scholars mentioned Bulugh (puberty or the beginning of reproductively) as the minimum age for marriage, meaning thereby, they were of the view that after attaining the puberty, the male/female could not be termed/considered as Child, bottom line, puberty was considered the marking point or transitional point, from childhood to adulthood. Underline has been supplied for emphasis.

8.There are frequent rulings by the Hon”ble Apex Court as well as by this Court wherein puberty was considered the valid age of marriage with further observation that due to violation of the definition of the Child as introduced in The Child Marriage Restraint Act, 1929 the same would not be invalid.

(i)“Mauj Ali Vs. Syed Safdar Hussain Shah and another” (1970 SCMR 437). The relevant excerpt of which is as under:

“Mr. A.G. Choudhri, learned counsel for the petitioner, has contended that the High Court should not have accepted the application filed by the respondent under section 491, Cr.P.C. Mst. Musarrat being a minor girl should have been ordered to go with her father. He further contended that as a case was pending against respondent No.1 under sections 363/366, P.P.C., the High Court should not have entertained an application under section 491 Cr.P.C. The contention of the learned counsel has not impressed us. It is not disputed that Mst. Musarrat has attained the age of puberty and she had married with respondent No.1 of her own free will. Such a marriage is valid according to Mohammedan Law. It was urged that such marriage is invalid under the Child Marriage

Restrains Act and, therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Mohammedan Law, respondent No.1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband. We are satisfied that substantial justice has been done in this case. We, therefore, do not consider this as a fit case to interfere in our special jurisdiction. The petition is dismissed.”

(ii)“Mst. Bakhshi Vs. Bashir Ahmad and another” (PLD 1970 SC 323), relevant exerpt of which is reproduced as under:

“As there is no dispute about the date of birth of Mst. Shamim she had definitely attained than 15 years of age before her marriage with Bashir Ahmad on the 17th of September 1969. According to the Muslim Personal Law, a girl professing Islam who has attained the age of 15 years shall be presumed to have attained puberty.”

“It was contended by the learned counsel for the appellant that although the mother may not have the custody of Mst. Shamim under the Muslim Personal Law, the girl being under the above of 16 years-was, in view of the Child Marriage Restrain Act of 1929, incompetent to contract a marriage. It is true that the said Act does not permit the marriage of a girl below the age of 16 years, but if a girl below the age of 16 years marries in violation of that law, the marriage itself does not become invalid on that score although an adult husband contracting the marriage or the persons who have solemnized the marriage may be held criminally liable.”

(iii)“Muhammad Khalid Vs. Magistrate 1st Class and 02 others” (PLD 2021 Lahore 21), the age of lady/wife was 14 to 15 years, age of puberty was considered the valid age of the marriage.

(iv)“Mushtaq Ahmad Vs. Mirza Muhammad Amin and another” (PLD 1962 (W.P.) Karachi 442)

(v)“Muhammad Banaras Vs. S.H.O. and others” (1995 P.Cr.L.J. 94).

9.In view of the said gap in the Child Marriage Restrain Act, 1929 and following the consistent ratio of this Court as well as August Supreme Court of Pakistan, conceding the stated statement/declaration of the detenue as shared ante, the petition is dismissed.

Signed on 23.09.2025.

(Tariq Mahmood Bajwa) Judge

Approve for reporting.

(Tariq Mahmood Bajwa) Judge MuzamilMohsin*