AZKA WAHID vs PROVINCE OF PUNJAB through Law and Parliamentary Affairs Department, Lahore Ss

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AZKA WAHID VS PROVINCE OF PUNJAB through Law and Parliamentary Affairs Department, Lahore Ss. 2(a) & 2(b) [as amended/substituted by the Punjab Child Marriage Restraint (Amendment) Act, 2015]---Constitution of Pakistan, Art. 25---Child marriage---'Child', definition of---Distinction drawn on the basis of gender while providing different ages for males and females---Constitutionality---Definition of 'child' given in Ss. 2(a) & 2(b) of the Act 1929 means a person who if a male is under 18 years of age and if a female is under 16 years of age and the punishments have been accordingly given in S. 4 of the Act 1929---Sections 2(a) & 2(b) of the Child Marriage Restraint Act, 1929 (' the 1929 Act') have been sought to be declared unconstitutional on the ground that they offend the equality clause in the Constitution of Pakistan---Held, that there is no prohibition in the Constitution on prescribing a minimum threshold for marriage and, therefore, to criminalize child marriage---Theme of the Act 1929 is to "restrain the solemnization of child marriage"; which purpose has been muddled by providing different ages for males and females for which there is no intelligible criteria---There may be a myriad of factors considered by the legislature while enacting the law---In a nub, the purpose of law is anchored primarily in socio-economic and educational factors rather than religious ones---We, as a nation, woefully lag behind in all major indicators and half of our population cannot be lost to child-bearing at an early age while its potential remains untapped---Equal opportunities for females means equal restraint on marriage as males---Thus, it is a fallacy to assume that the discourse is coloured by some underlying notions unrelated to the real purpose that permeates the law of child marriage---The difference in ages in the definition of 'child' was left unchanged in the 2015 amendments, which does not comport with the mandate of Art. 25 of the Constitution---Article 25 of the Constitution states, without equivocation, that "there shall no discrimination on the basis of sex", and the State is only permitted to make special provision for the protection of women and children---The definition of 'child' in the 1929 Act while making a distinction on the basis of age is not based on an intelligible criteria having nexus with the object of the law---Said definition is indeed a special provision for the protection of women but in the process it tends to afford greater protection to males by keeping their age of marriage higher than females---Clause (3) of Art. 25 is an instance of affirmative action, a concept of American constitutional law and introduced in our Constitution through this provision---Thus, the definition of child, in its present form, in the 1929 Act, is discriminatory---In sum, the words in S. 2(a) of 1929 Act "if a male …. and if a female is under sixteen years of age" being unconstitutional were held to be without lawful authority and of no legal effect; and were struck down---High Court directed the Govt. of Punjab (its relevant department) to issue the revised version of the 1929 Act within the next fifteen days and also upload that version on its website for information---Constitutional petition was allowed accordingly.

AZKA WAHID vs PROVINCE OF PUNJAB through Law and Parliamentary Affairs Department, Lahore Ss — 2025 PLD 1 LAHORE-HIGH-COURT-LAHORE

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