Under-15 children lack capacity to change religion independently: court

LAHORE: The Lahore High Court has ruled that children under the age of 15 lacked capacity to change religion independently. Justice Tariq Saleem Sheikh on August 2, 2019, had handed over a 14-year-old girl Muskan to her Christian parents after getting her recovered from a Muslim family where she had been working as a "domestic worker" for last four years.

Her employer did not allow her parents to meet her on the pretext that she had converted to Islam and no longer wanted to meet her parents. Muskan's mother Nasira Bibi had filed a habeas petition in the LHC.

In its 27-page detailed judgment issued Thursday after seven months, Justice Sheikh ruled “Muskan is barely 14-year-old. As she is not a sui juris, she lacks capacity to change religion on her own.

The court; however, observed that question of faith being a matter of heart and one’s conviction, no court can declare Muskan conversion invalid or void. “It can only refuse to recognise or give effect to it for certain legal purposes, the court added.

The judgment stated that in Islam after the attainment of 15-year, when a person becomes sui generis, which is the age of puberty, a person can independently change his or her religion but before the age of puberty a child is presumed to have his or her father's religion.

It further stated that a child was presumed to have her/his father's religion as laid down in several judgments of the superior courts. He said the employer could not keep unlawful custody of the child.

The judgment stated that a child below 15 years could not be employed in domestic household work under of Section 3 and 31 of Punjab Domestic Workers Act 2019. Sheraz Zaka advocate was appointed as amicus curiae who submitted that a child below 15 years is not intelligent enough to form an opinion regarding religion conversion. He submitted that a child below 15 years also cannot be employed as a domestic worker in the light of section 3 of Punjab Domestic Workers Act 2019.

Zaka submitted that in the light of superior court judgements, a child below the age of puberty or below the age of 15 years or the child who is not sui generis is presumed to have father's religion.

The judgement stated that minorities have equal rights in this country and cannot be subjected to forcible conversion keeping in view the government of Pakistan's ratification of International Covenant on civil and political rights, Convention on elimination of discrimination against women and Convention on rights of child.

The judgement further stated that minorities shall freely practise their religion. The judgement stated that there is no need to enact law regarding forced conversion as Article 20 of the Constitution which already covers the entire aspect of religious freedom.