Mst. MUMTAZ BIBI vs QASIM Ss — 2022 PLD 228 ISLAMABAD

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Mst. MUMTAZ BIBI VS QASIM Ss. 375, 377-a & 377-B---Muslim Family Laws Ordinance (VIII of 1961), S. 5 ---Islamabad Capital Territory Child Protection act (XXI of 2018), S. 3---United Nations Convention on Rights of Child (UNCRC), arts. 1, 19 & 34---Constitution of Pakistan, art. 9---Child marriage---Consent of child---Puberty, attainment of---Scope---Child is defined as a person who has not attained age of 18 years---Child is required to be placed in somebody's care whether it is a parent or guardian or other caregiver appointed on behalf of State---Complete agency to grant informed consent for purposes of entering into contract, including a marriage contract cannot be attributed to such child---Female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into marriage contract merely because she manifests physical symptoms of having attained puberty---Test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth---Provisions of Ss. 375 & 377-a, P.P.C. are mandatory provisions and any contract entered with the object of breaching such provisions or that has effect of breaching such provisions cannot be treated as a valid contract---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 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 art. 9 of the Constitution read together with the provisions of United Nations Convention on the Rights of the Child---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---State is under an obligation to uphold and guarantee rights of such child, who cannot be deemed to have competence or capacity to parent a child of his/her own and act as guardian endowed with primary responsibility to provide for his/her child while being a child himself/herself---No one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of S.377-a, P.P.C.---Neither a child under the age of 18 can consent to engage in sexual conduct in any form, nor can a parent or guardian of a child, contract a child out to engage in sexual conduct---Child is not a chattel that can be contracted out by a trustee or guardian to engage in conduct that child himself/herself cannot grant consent for---No consent can be granted on behalf of a child by a parent or guardian involving discharge of personal service by the child or engagement in conduct that is unlawful and prohibited, such as that required to be performed under a marriage contract---Parent or guardian can deal with a child's property in his/her best interest but is not at liberty to contract out the child to engage in a contract of personal service or conduct otherwise prohibited by law---No exceptions or exclusions have been provided by Ss.375 & 377-a, P.P.C. to conduct that otherwise qualifies as rape or sexual abuse and would attract even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/her parent or guardian on his/her behest.

Mst. MUMTAZ BIBI vs QASIM Ss — 2022 PLD 228 ISLAMABAD

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