ISLAMABAD - The Islamabad High Court (IHC) Tuesday declared that a marriage contract in which one of the parties is a child under the age of 18 is a contract executed for an unlawful purpose and is void ab initio.
In this regard, a single bench of IHC comprising Justice Babar Sattar who authored 56-page judgment and directed to hand over a 16-year-old girl to her mother in an early marriage case.
Justice Babar wrote in the written verdict, “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.”
Mother of Swera Falak Sher, who was born on 07.03.2006, had filed the petition seeking the recovery of her daughter. Later due to the court order minor (Swera) was produced before the court. She stated in court that she had married respondent No 1 and was unwilling to go along with her mother to her family home. Then, the court ordered that the minor be lodged in Dar-ul-Aman.
The bench stated that a female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into a 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.
He added that 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.
The judge held that 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.
In this regard, a single bench of IHC comprising Justice Babar Sattar who authored 56-page judgment and directed to hand over a 16-year-old girl to her mother in an early marriage case.
Justice Babar wrote in the written verdict, “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.”
Mother of Swera Falak Sher, who was born on 07.03.2006, had filed the petition seeking the recovery of her daughter. Later due to the court order minor (Swera) was produced before the court. She stated in court that she had married respondent No 1 and was unwilling to go along with her mother to her family home. Then, the court ordered that the minor be lodged in Dar-ul-Aman.
The bench stated that a female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into a 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.
He added that 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.
The judge held that 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.
