FAROOQ OMAR BHOJA vs FEDERATION OF PAKISTAN through Ministry of Law and Justice of Pakistan through Secretary,

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FAROOQ OMAR BHOJA VS FEDERATION OF PAKISTAN through Ministry of Law and Justice of Pakistan through Secretary, Islamabad Ss. 4, 5 & 6---Constitution of Pakistan, Art. 203-D---Shariat petition---Prohibition on child marriage---Repugnancy to Injunctions of Islam---Plea that Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929 ('the impugned provisions') were in contradiction with Islamic law and rules---Held, that the minimum age of girl for marriage was set at 16 years by the State through the Child Marriage Restraint Act, 1929---Majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, however there are some jurists having an opposing opinion too---Settled principle of Shariah was that if any 'Mobah' act appeared to be harmful to the society collectively or to a particular segment of a society, the State had power to make that act prohibited so that the society could be protected from a larger damage---Limitations could be set on a 'Mobah' act in a precautious way that it did not affect any other 'hukum' set out by Shariah---Setting a minimum age limit of 16 for girls to marry was one such example---Furthermore in Islamic law, there was a well-developed concept of 'Sad-uz-Zaraey' based on Quran and Sunnah, according to which it was also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it was---According to this principle of 'Sad-uz-Zaraey' the "impugned provisions" were not against the Quran and Sunnah---When a rule was abused or misused then it could be defined clearly to protect it from being abused---Impugned provisions did the same thing---Law or principle of Shariah was defined in a more clear way, that minimized the chance of its abuse or misuse, i.e., a marriage should not be consummated before the attainment of the age of medical maturity by the girl---Setting an age of 16 years reduced the possibility of breach of this principle of Shariah to the maximum---Setting a threshold of minimum age at 16 years for a girl by law would also generally help the girls to get at least basic education---Need for education was equally important for everybody irrespective of gender, which is why Islam had made the acquisition of education mandatory for every Muslim---At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education came under the concept of Hifz-ul-Aql i.e. protection and promotion of intellect, which was also one of the basic goals of Shariah---For a healthy marriage, not only physical health and economic stability etc. were necessary factors but mental health and intellectual development was equally important, which were achievable through education---According to the teaching of Islam providing the best education to a child girl or a daughter was one of the best deeds a person could do which guaranteed 'Jannah'---Shariat petition challenging Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929, being misconceived was dismissed in limine.

FAROOQ OMAR BHOJA vs FEDERATION OF PAKISTAN through Ministry of Law and Justice of Pakistan through Secretary, Islamabad Ss — 2022 PLD 1 FEDERAL-SHARIAT-COURT

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