Ali Azhar Vs. Province of Sindh

IN THE FEDERAL SHARIAT COURT

(ORIGINAL JURISDICTION)

PRESENT

MR. JUSTICE DR. SYED MUHAMMAD ANWER, ACTING CHIEF JUSTICE

MR. JUSTICE KHADIM HUSSAIN M. SHAIKH

SHARIAT PETITION NO.05-I OF 2022

All Azhar son of Syed Ghulam Rasool, Muslim, Adult, Resident of House No.B-414, Railway Colony, East Camp Road, Cantt., Karachi.

PETITIONER

VERSUS

The Province of Sindh through (i) Secretary Law, Parliamentary Affairs & Criminal Prosecution Department (ii) Secretary Home at Sindh Secretariat, Karachi.

Arzoo Fatima W/o Ali Azhar, Muslim, Pubert / adult, resident of Panah Shalter Home, FB Area, Karachi.

The learned XXIst Family Judge, South at Karachi. The learned VIIth ADJ South at Karachi.

The Chairman Council of Islamic Ideology at Plot No.46, Attaturk Avenue, Sector G-5/2, Islamabad.

I.G.P. Sindh at CPO LI. Chundriger Road, Karachi.

RESPONDENTS

For the Petitioner: Mr. Muhammad Nizar Tanoli, Advocate For the State: Mr. Sagheer Ahmad Abbasi, Asst. AG, Sindh Date of Institution: 26.11.2022

Date of Hearing: 16.01.2023

Date of Judgment: 06.03.2023

JUDGMENT

DR. SYED MUHAMMAD ANWER, ACT: Through Shariat Petition No.05-I of 2022, the petitioner invoked the jurisdiction under

Sh. Petition No.054 of 2022 A/W Sh. Misc. A Nos.04 & 05-I of 2022 Page I 2 Article 203-D of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayers:

To declare that the vires of the Sindh Child Marriage Restraint Act 2013 are against the injunction of Islam and against the Constitution as such not applicable to the Muslims of Sindh.

To declare that the definition of Child given in the Sindh Child Marriage Restraining Act 2013 Section 2(a) would be governed / changed/applied with the sign of puberty for Muslims.

To declare that the section 8 of the said Sindh Child Marriage Restraining Act 2013 is against the injunction of Islam and Sharia.

To call for the record and proceedings of Family Appeal No.18/2021 from Respondent No.3/VIIth ADJ South Karachi and Family Suit No.2117/2020 from the court of XXIst Family Judge South at Karachi and after perusal the same set-aside the Orders dated 14-04-2021 To pass the Judgment & Decree in favour of Petitioner by directing the Respondent No.2 to Join the Petitioner as legally wedded wife.

f To declare that the Nikkah and marriage of Petitioner and Respondent No.2 is legal, Lawful and executable under Muslim Family Law.

To direct the respondent No.1 to handover the physical custody of the Respondent No.2 and provide safety and security.

To direct the Respondent No.5 to observe the all legislation formulated by the Province of Sindh after 18th Amendment should be in conjunction of Islam if any confliction then make necessary amendments on urgent basis.

To grant costs of the appeal.

Any other reliefts), which this Honourable Court may deem fit & proper in the circumstances of the case.

2.It is evident from the prayers made by the petitioner in his Shariat Petition that some of the prayers are related to relief in personam. So far as the grant of relief in personam sought by the petitioner is concerned, it is beyond the jurisdiction of this Court and, therefore, cannot be granted. However, the questions concerning the impugned law raised by the petitioner need consideration.

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-1 of 2022 Page I 3 We have heard the petitioner at length as well as the learned Additional Advocate-General, Sindh. The learned counsel for the petitioner contended that setting the age of 18, as mentioned in Section 2(a) of the Sindh Child Marriages Restraint Act, 2013, as the minimum legal age for male and female for the purpose of marriage is against the injunctions of Islam. For reference, the impugned section is reproduced below:

"2. In this Act, unless there is anything repugnant in the subject or context -

(a)"child" means a person male or female who is under eighteen years of age"

To challenge this Section of law on the basis of Islamic injunctions, the petitioner relied upon the following verses of the Holy Quran:

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5.In support of his prayer, the petitioner has also relied upon few Ahadith regarding marriage, which are as follows:

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6.We have gone through the petition and all the references made by the petitioner therein, and we have heard the arguments of the petitioner at length. All the Ahadith and Ayat, the petitioner relied upon in his petition, are more relevant to the importance of marriage contract in Islam and are not directly related to the age at which a male or a female should get married. Whereas, the point in issue in the petition is totally different i.e. it is related to the fixation of a minimum age for contracting a marriage or setting a minimum age for Nikah by the State.

There is no doubt that according to the teaching of the Quran and

Sh. Petition No.054 of 2022 A/W Sit Misc. A. Nos.04 & 054 of 2022 Page I 6 Sunnah the Nikkah and marriage or the importance of marital relations has a significant and pivotal place in human society. This relation is considered as the foundation stone of the human society, which Islam wants to establish and preserve. According to Islam a marriage is not only confined to legitimate sexual relationship between a man and woman but it also establishes the rights and duties of the couple. So far as rights of husband and wife over each other are concerned both husband and wife are equal, however Islam puts husband under obligation and made him duty bound to protect his wife and provide sustenance to her according to his strength and abilities. This aspect of marital relation is mentioned in Verse-228 of Surah Al-Baqarah in the following manner:

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And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.

The whole idea of marital life is explained elaborately in many verses of the Holy Quran as well as in a number of Ahadith.

However, one Ayat very concisely explains the crux of matrimonial relations in a metaphorical manner i.e. Verse 187 of Surah Al-Baqarah, which states as follows:

A-113 is-) jrq".-U-;2(15 jr-1 LgT.Y.61°

They (your wives) are a clothing (covering) for you and you too are a clothing (covering) for them.

Sh. Petition No.054 of 2022 A/W Sh. Misc. A. Nos.04 & 05-I of 2022 Page I 7 4‘k

This Ayat explains the matrimonial relation of the husband and wife in a comprehensive and all-encompassing way. It explains that both the spouses are necessary for each other for their individual and collective sustenance, care, survival and protection of each other, etc.

Such a relationship requires mental maturity, psychological stability, economic sustainability, etc. This relation is not restricted and limited to sexual relationship only. Hence, this important relation of a human being does not depend only on the fact that either the parties to a marriage have attained the age of puberty or not, but it requires certain mental maturity also, which is commonly called as Rushd (.1.1J) according to the injunctions of the Holy Quran and Sunnah of the Prophet (SAW). The term Rushd in the sense of mental maturity is used in Verse 6 of SurahAl-Nisa as follows:

411 -jQ\.i 1:12.6 gr.2,1 15Wt4i L:1>.

cjit, a) it -,d-sJ uz,.- Ets c-21.971 elqis ua4 J..91 -94 iS ul Ls-C jia -51 0;1 And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgement, release their property to them.

In this Ayat, Allah (SVVT) explains two preconditionsnamely (1) majority or Bulugh (EA) and (2) mental maturity or Rushd (4)) for the guardian of an orphan to handover the orphan his property or wealth when you observe the orphan reaches puberty and when you find emotional and mental rectitude in him or her. This Ayat of the Holy Quran tells us that the ability to keep property and manage other affairs of life does not automatically come with puberty (Balugh / EA)

Sh. Petition No.054 of 2022 A/W Sh. Misc. A. Nos.04 & 054 of 2022 Page 1,8 only, but mental rectitude or mental maturity (Rushd / i:u) is also required. It is something over and above puberty or sexual maturity of a person and is necessary to handle the normal affairs of life.

All the classical Muslim Jurists have consensus that sexual maturity (Balugh / EA is different from mental maturity (Rushd / .1.1J), therefore, they set different age limit for a normal person to attain mental maturity (Rushd / 44. Time period to attain sexual puberty and mental maturity may and may not be the same but normally mental maturity comes later than sexual puberty due to many external factors associated with the intellectual and emotional development of a person and formal education is the most important one for the mental development of a human being. Due to the existence of such factors, Muslim Jurists have set different ages for appearance of Rushd in a person, hence Imam Abu Hanifa has set an age of twenty-five (25) as a reasonable period for appearance of mental maturity (Rushd / .1.1J) in a person. (Al-Sarakhsi, Al-Mabsoot 23-24, Page-161, Qamoos al-Fiqh Maulana Saifullah Rehman Vol.3 [Page 480], Ahkam Ul Quran Jasas). Regarding sexual puberty (Balugh / L.,34) and the age of maturity, the scholars have discussed this subject in detail while explaining the Tafseer of Ayat 6 of Surah An-Nisa (Tafseer Ahkam ul Quran by Jasas, Tafseer al-Qurtubi, Tafheem al- Quran, Zia-ul-Quran, etc.). As a reference, we have reproduced the following a few excerpts from the commentary of Ma'ariful Al-Quran and from Tafheem ul-Quran and Zia-ul-Quran.

"The Age of Maturity Along with the injunction of maturity (bulugh) in this verse, the Holy Qur'an has also answered the question as to the 'age'

Sh. Petition No.054 of 2022 Al W Sh. Misc. A. Nos.04 & 054 of 2022 Page I 9 when a child would be taken as mature (baligh) by saying: (e-141 134 translated as 'until they reach marriageability'. Here, it has been indicated that real maturity is not tied up with any particular count of years. Rather, it depends on particular indicators and signs experienced by adults entering the threshold of adulthood. TA/hen, in terms of these indicators and signs, they would be regarded fit to marry, they would be considered mature, even if their age does not exceed thirteen or fourteen years. But, should it be that such signs of maturity just do not show up in some child, he shall be considered mature in terms of age, a position in which Muslim jurists vary. Some fix eighteen years for boys and seventeen for girls; some others have fixed fifteen years for both. With the Hanafiyyah, the fatzva is on the position that the boy and the girl shall both be considered mature under the Islamic law after they have completed their fifteenth year irrespective of whether or not signs of maturity are found.

The Perception of Proper Understanding: How to find it? An Explanation ofU!)4 et:11.31 The injunction of the Qur'an is: 'then, if you perceive in them proper understanding, hand over to them their property.' Now, what is the time of this 'proper understanding' (rushd)? The Holy Quran has not elaborated on this final limit of time. Therefore, some Muslim jurists leaned towards favouring the view that the properties of children should not be handed over to them until it has been determined that they do have full and proper understanding. Instead, these will stay under the safe custody of the guardian as usual, even if this state of affairs continues for the rest of life.

But, in accordance with the verification of the issue by Imam Abu Hanzfah l r-Asi, at this point the absence of 'proper understanding' refers to the state affected by childhood. Within ten years after maturity, the effect of childhood is gone. So, there are fifteen years as the age of maturity (bulugh) and ten years as the age of proper under- standing (rushd). Once these 25 years are reached, such proper understanding is most likely to be achieved; something which was not possible due to the barriers of childhood, and later, younger years. Then, it should be noted that the Holy Qur'an uses the word, 'rushdan' in its indefinite form whereby it is suggesting that full understanding and perfect sense are not absolute conditions. A reasonable measure of understanding is also sufficient for this purpose on the basis of which their properties could be given to them. Therefore, even if perfect understanding has not been

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-I of 2022 Page I 10 achieved despite the long wait of twenty five years, even then, their properties will be handed over to them. As far as perfect understanding and wisdom is concerned, there are people who do not get to achieve these throughout their entire lives. They always remain simple, innocent and rather shy and slow in conducting their practical dealings. They will not be deprived of their properties because of this. However, should there be someone totally insane, he will be governed by a separate rule since such a person always remains in the category of immature children. His property will never be handed over to him until his insanity disappears, even if his entire life were to pass in insanity.

(Ma'ariful Qur'an, Page-323-324, Volume-2)" [emphases added]

Maluana Maududi explains the same verse of Surah An-Nisa in his Tafseer as:

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LI zit*, L LyinPeir Eki ..4:-Jtj.t.f I "Le yr za .))12" ti2i ) Lit ) (334 ,L5),.,.e(frill..63 2 3j,c.191trif )1`-‘...).17101t-44/44- (il Similarly, Fir Muhammad Karam Shah Al-Azhari explains this Verse in his Tafseer Zia-ul-Quran as:

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z 0EL I Arz. LsAimilefic_h_y Lt. jiff f )4. ,AJ ci LILAC ovfll DJ OCT C.- 01,1c... 201#7.1.1/31-.1).L.f;

LL:5).1 .1.11/2 1)0: L

Lir/ LigL Li)" nt f4t f. Lid du)I c --i.tkc..-,:..**Ille)iliK(Court of Wards)

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-I of 2022 Page I 11

7.Different jurists have mentioned different conditions in the absence of which entering into a marriage contract is not admissible according to the Injunctions of Islam as laid down in the Holy Quran and Sunnah, according to which contracting marriage is not an absolute right, it is a subjective right depending upon number of conditions and physical, mental, economic, etc. status of a person, who wants to marry. The Verse 33 of Surah An-Nur is one relevant verse in this regard, wherein Allah (SWT) says:

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But let them who find not [the means for] marriage abstain [from sexual relations] until Allah enriches them from His bounty.

This verse gives us clear guidance that sexual maturity is only one aspect necessary for marriage under Islamic law. There are other requirements also which are considered necessary and appropriate to enter into a marriage contract, which may include financial condition, health and mental maturity, etc. The fact that the legality of marriage is subject to the ability of the person from different aspects, this act is at the same time considered as Fard, Wajib, Mustahib, Makruh and even Haram depending on the physical and economic and mental condition of a person who wants to many. The above mentioned verse gives us the guideline that one who does not have the means to have a healthy marital life must wait for having better economic and other conditions necessary to lead a healthy marital life, otherwise one must avoid to enter into a marriage contract. This interpretation of Verse-33 of Sarah An-Nur is

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-I of 2022 Page 112 clearly elaborated in the Hadith narrated by Hazrat Abdullah bin Omer (R.A), which is as follows:

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[emphases added]

In another verse of Surah An-Nisa (Verse 25), the Holy Quran advises us that in situation where one cannot afford to have a marriage in normal manner with a matchable and suitable girl then one can marry a slave girl but patience and wait is better. The Verse 25 of Surah an-Nisa states that:

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ate.

And whoever among you cannot [find] the means to marry free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are

Sh. Petition No.054 of 2022 A/W Sh. Misc. A. Nos.04 & 054 of 2022 Page I 13 of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [017 those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.

8.In addition to that, according to Sunnah there are certain conditions which do not allow a person to solemnize marriage even after attaining the age of maturity. This concept becomes clear from the following Hadith, for which Imam Bukhari established a whole chapter in his books in the following manner:

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[emphases added]

This aspect has also been discussed in detail by Full Bench of this Court in the case of "Farooq Omar Bhoja vs. The Federation of Pakistan", reported as PLD 2022 FSC 1, we feel it relevant and pertinent to

Sh. Petition No.05-I of 2022 A/W Sit Misc. A. Nos.04 & 054 of 2022 Page 114 reproduce a portion of the above mentioned judgment, which is as follows:

Although majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, there are some jurists having opposing opinion also like Imam Ibn-e- Shabarma who was a Muslim jurists contemporary of Imam Abu Hanifa in Iraq alongwith him Qazi Abu Bakar Al-Ism also had opposing opinion. There are a few more in addition to them who have this opposing opinion, i.e., Nikah of a minor girl is not permissible in Islam which means both point of views do exist among Muslim jurists. ('Reference: Al-MughniIbn-e-Qudaima, Volume-7, Page-487, Majmooa-i-Qazvaneen-e-Islam, Volume No.1, Pages-214 and 215 by Dr. Tanzeel-ur- Rehman). Dr. Tanzeel-ur-Rehman (late) has dedicated a complete section of his book Majmooa-i-Qawaneen-e- Islam on this topic, although the whole section is very pertinent to this topic, however, the relevant portion of this section is reproduced herein below for bringing clarity to the issue:

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9.Setting a threshold of minimum age at 16 years for a girl by law will generally help the girls to get at least basic education. The importance of education is self- explanatory. The need of education is equally important for everybody irrespective of gender. That is why Islam has made the acquisition of education as mandatory for

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-I of 2022 Page I 15 every Muslim. As mentioned in Hadith, it includes males and females both:

(LS A:) - ;4•1f, (..-}41v.) ,5:6)514-1W. Acquisition of knowledge is mandatory upon every Muslim.

The use of such language by the Prophet (SAWS) accentuates the farziat of education in a Muslim society, and for every Muslim in all and any circumstances. Hence, education is one of the fundamental factors for personality development of every and any human person. For a healthy marriage, not only physical health and economic stability etc. are necessary factors but mental health and intellectual development is equally important, which are achievable through education. Education is fundamental for women empowerment which is the key block for the development of an individual and consequently for the future generation of any nation. One of the purposes of marriage in Islam is protection and promotion of genealogy and generation of any person. This concept comes under the topic of wifi-un-nasal)which is one of the goals of Sharia according to the concept of (2.2-4,Ala-ali-.)Maqasid us Shariah as narrated by Shatbi. (Ibrahim Bin Musa Bin Muhammad Shatbi d.790 Hijri,a1 Mowafqaat). At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education comes under the concept of iIi231 -leasi.e. protection and promotion of intellect. jimit JaigHifz-ul-Aql)also is one of the basic goals of Shariah out of set five goals of Shariah, which are well explained by the concept of Maqasid-us- Shariahl

emi‘i4cr.1 According to the teaching of Islam giving best education to a child girl or a daughter is one of the best deeds a person can do which guarantees Jannah. Following Hadith is the most relevant in this regard:- ztail -t,315 • : fulat, • J126 4:101.4‘ cj.c.

14.AJL9 451 C.)-mis-1-6 I-WU efr"1 L3'11 r -)L11 VC. 3 ka-to 41 ock

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 054 of 2022 Page 116

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Due to its importance Imam Bukhari created a whole chapter of his famous Hadith Book 1-224J-11 (SIS411 tAl÷ on the topic of importance of the education of girls at41 clac. 4.,141" almost in the beginning of his book aJts4 Bukhari Shareef

9.The setting a minimum age for marriage i.e an act which is "mobah" (permissible) and not absolutely mandatory (Fard) like marriage is in accordance with the injunctions of Islam, because such fixation of minimum age limit provides reasonable time period to girls to complete basic education at least, which normally helps in developing mental maturity (Rushd / in a person. That act of the legislature to fix a minimum age for marriage is also in accordance with injunctions of Islam as laid down in the Quran and Sunnah from the aspect of principles of goals of Shariah or Magasid Al-Shariah (ms*r-till and other principles set out by the holy Quran and Sunnah according to which a wife is supposed to protect the rights, property and honor of her husband, and a husband is duty bound in Islam according to the injunctions of the Holy Quran and Sunnah to protect the rights, property and honor of his wife being Qawwam (r1)).

In the light of principles of goals of Shariah or Magasid al-Shariah 1-ovia) on the one hand according to which the protection of physical health as well as of the mental health of the citizen is the duty of a Muslim State, firstly, under the goal of protection of life HID Jai.)

Sh. Petition No.05-1 of 2022 A/W Sh. Misc. A. Nos.04 & 05-1 of 2022 Page 117 of its citizens and, secondly, under the goal of protection of intellect (J1,31 of its citizens. Likewise, to block the means of harm or evil that may be attached to child marriage under the concept of Islamic law, called Sadd al-Dara'i (6,1)11-4 According to the principle of Sadd- uz-Dara'i (e'.113111.,) i.e. blocking means that cause harm, the State through legislation can take steps and set certain minimum thresholds for undertaking an act to protect that person or category of persons.

Such steps taken by the State fall within the category of Masalaih Mursalah (sty. Aslas.“) i.e. the consideration of public interest.

In addition to the arguments made by the petitioner discussed hereinbefore, he raised another point with reference to opinion of some scholars as follows:

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Although this point can be considered as relevant in some exceptional situations, but is not the main moot point in the petition.

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 05-1 of 2022 Page 118 However, these questions are related to our society with some aspects in exceptional conditions and that can only be resolved properly by the elected representatives through legislation, if they want to. The Provincial Government of Sindh, in this regard, is the relevant forum to discuss the issue to legislate a provision in this law to tackle genuine exceptional situations in the society. As a guidance, if the legislators so want to deal with such a situation in some of the Muslim states, there are legislations in this regard which we have referred in our earlier judgment (PLD 2022 FSC 1) as follows:

"13. There are many Islamic countries where such type of law is present wherein a minimum age for marriage for male and female is fixed, like in Jordan, Malaysia, Egypt and Tunisia, etc. However, in such countries according to their laws if in a specific or especial case there is an unavoidable circumstance or situation to solemnize a marriage before the age as set by the law then the family of that girl and boy must approach a specific authority made by the government allowing Or disallowing such permission."

The fixing of an age limit to enter into marriage by the State or a government, as is done in the impugned law, is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah. The act of setting a minimum age limit for marriage and setting age for an adult eligible to solemnize marriage vide impugned Section 2(a) of the Sindh Child Marriages Restraint Act, 2013 is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah.

12.Hence, for the reasons stated hereinabove and after examining the petition and hearing the petitioner at length, we are of the considered

Sh. Petition No.05-I of 2022 A/W Sh. Misc. A. Nos.04 & 054 of 2022 Page I 19 view that the petition is misconceived; hence, is DISMISSED in limine and the Shariat Misc. Applications No.04-I of 2022 & 05-I of 2022 having become infructuous are hereby dismissed as such.

(MR. JUSTICE DRJ SYED MUHAMMAD ANWER)

ACTING CHIEF JUSTICE

(MR. JUSTICE KHADIM HUSSAIN M. SHAIKH)

JUDGE

Announced in Open Court on 06.03.2023 at Karachi.

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