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Sunday November 28, 2021

SHC dismisses petition against vires of Sindh Child Marriages Restraining Act

October 18, 2021

The Sindh High Court (SHC) has dismissed a petition that challenged the Sindh Child Marriages Restraining Act 2013 terming it against the injunctions of Islam and the Constitution.

The high court observed that the petition was not maintainable as the prayers of the petitioner were hit by the bar contained under the Article 203 of the Constitution, which states that it is the exclusive domain of the Shariat Court to examine and declare any provision of any statute as repugnant to the injunctions of Islam.

The petitioner, Azhar Ali, had requested the high court to declare the vires of the Sindh Child Marriages Restraining Act, 2013, to be against the injunctions of Islam and against the Constitution, so that they would not be applicable to the Muslims.

He also sought a declaration that the definition of child given in the Sindh Child Marriages Restraining Act’s Section 2(a) would be governed or changed with the sign of puberty for the Muslims.

After hearing the arguments of the counsel, the high court observed that the plain reading of the Article 203-D if the Chapter 3A Federal Shariat Court of the Constitution revealed that it was the exclusive domain of the Shariat Court to examine and declare any provision of any statute as repugnant to the injunctions of Islam.

The SHC observed that additionally, the sub-clause (1A) of the Article 203-D provides that after the examination of any law or provision of law under the clause (1), if such law or provision of law appears to be repugnant to the injunctions of Islam, the Federal Shariat Court shall issue a notice to the federal government in the case of a law with respect to a matter in the legislative list or to the provincial government in the case of a law with respect to a matter not enumerated in the said list, specifying the particular provisions that appear to it to be repugnant to the injunctions of Islam, and afford to such government adequate opportunity to have its point of view placed before the court.

The SHC observed that the sub-clause (2) to the Article 203-D specifies that if the Federal Shariat Court decides that any law or provision of law was repugnant to the injunctions of Islam, it shall set out in its decision the reasons for its holding that opinion and the extent to which such law or provision was so repugnant, and specify the date on which the decision shall take effect.

The high court observed that the Article 203-G of the Constitution also provides bar of jurisdiction that no court or tribunal, including the Supreme Court and a high court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Shariat Court.

Ali had submitted that he had married Arzoo Fatima on October 13, 2020, after she converted to Islam but she was not being allowed to live with him due to the Sindh Child Marriages Restraining Act 2013.

He submitted that the vires of the law were against the injunctions of Islam and therefore not applicable to the Muslims. He submitted that the family judge had to decide each and every issue of Muslim marriages in the light of the Muslim law according to their religion.

He submitted that he had filed a suit in a family court for the restitution of conjugal rights, but it was dismissed by the court and the appellate court.

The petitioner further said that the family and appellate courts did not apply their judicial mind, legal aspects, factual issues and evidence available on record as well as the guidelines issued by the superior courts that when there was a conflict between the law of the land and the injunctions of Islam, the injunctions of Islam shall prevail.

He argued that the trial court erred in law and circumstances, which caused serious miscarriage of justice. He submitted that it was an admitted fact that throughout the Sindh Child Marriages Restraining Act, the marriage of spouses had not been declared illegal.

He submitted that under the Muslim laws, the right of marriage is established when the spouses reach the puberty age. He requested the court to set aside the family court order.

The high court was requested to declare that the vires of Sindh Child Marriages Restraining Act 2013 were against the injunctions of Islam and Constitution, and as such not applicable to the Muslims.

He sought the issuance of a direction to the Sindh government and the Council of Islamic Ideology to pursue the law and formulate the same in conjunction with Islam.

The petitioner also requested the high court to declare that the marriage of the petitioner with Arzoo was legal and lawful, and executable under the Muslim family law.

On November 23, 2020, the SHC had sent Arzoo to a shelter home as she could not be sent to Ali after a medical board report declared her age to be 13 to 14 years.

The court observed that as Arzoo did not want to go with her parents, she may be kept at the shelter home and a social welfare department officer shall ensure her welfare in terms of physical and mental well-being, schooling and any other matter of concern.

The court observed that Arzoo may ponder over her life choices and ordered that she be allowed to meet those persons whom she agreed to meet, excluding her Ali and his relatives.

Arzoo had categorically stated before the court that she had converted to Islam of her own free will and had not been kidnapped by anyone. She had also affirmed that she had entered into the marriage contract of her own free will.

A court had however observed that as per the medical report, and Nadra and school record, the girl was about 13 years old and it was apparent that she was underage and it was not possible for her to enter into a legally valid marriage with Ali under the Sindh Child Marriages Restraining Act.