2026 C L C 381
2026 C L C 381
[Islamabad]
Before Muhammad Azam Khan, J
MUHAMMAD RIAZ ---Petitioner
Versus
DISTRICT AND SESSIONS JUDGE, (EAST) ISLAMABAD and 8 others -
--Respondents
W.P. No. 2494 of 2025, decided on 11th July, 2025.
(a) Islamabad Capital Territory Child Marriage Restraint Act (XI of
2025)---
----Ss. 2(a), 3, 10 & 11---Child marriage---Effect---Child marriage is
deemed valid under Shariah/Islamic jurisprudence on the basis of
consent and attainment of puberty, however, the same is
criminalized under the Islamabad Capital Territory Child Marriage
Restraint Act, 2025, if the marriage is contracted under the age of
eighteen years---Such marriage contracted inter se both or either of
the contracting party under eighteen is not void under the Shariah,
it is nonetheless punishable by law and treated as contrary to public
policy, especially where it undermines minor s physical, emotional,
and educational development.
(b) Islamabad Capital Territory Child Marriage Restraint Act (XI of
2025)---
----Ss. 2(a) & 3---Contract Act (IX of 1872), S. 11---Majority Act (XI of
1875), S. 2---Contract of marriage---Principle---Marriage contract
stands on a distinct footing from contracts governed by Contract Act,
1872 owing to personal, religious, and socio cultural dimensions
uniquely attached to matrimonial unions---Contractual capacity
under S.11 of Contract Act, 1872 is attained upon reaching the age of
majority as defined under Majority Act, 1875---Matters pertaining to
marriage, dower, and divorce have been expressly excluded, under
S.2 of Majority Act, 1875 from its application---Unlike commercial
contracts, which are founded purely on legal capacity, marriage
contracts are governed under special enactments, wherein
determination of age has not been made categorically by the
legislature, thereby allowing involvement of personal laws---Minor
girl attaining puberty has capacity to contract a valid marriage,
provided she gives free and informed consent---Under the Muslim
Personal Law, puberty is presumed at the age of fifteen, and once
attained, a Muslim female is considered sui juris, capable of entering into a marital contract without the necessity of a guardian
s consent.
Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437;
Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323; Tahira
Bibi v. Station House Officer and others PLD 2020 Lah. 811;
Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and
others PLD 2018 Isl. 385; Mst. Shazia and another v. S.H.O. Police
Station Kumb, District Khairpur and others 2011 YLR 493; Allah
Bakhsh v. Safdar and others 2006 YLR 2936; Zafar Khan v. Muhammad
Ashraf Bhatti and another PLD 1975 Lah. 234; Ghulam Hussain v.
Nawaz Ali and another 1975 PCr.LJ 1049; Mushtaq Ahmad v. Mirza
Muhammad Amin and another PLD 1962 (W. P.) Kar. 442; Allah Nawaz
v. Station House Officer, Police Station Mahmood Kot District,
Muzaffargarh PLD 2013 Lah. 243; Muhammad Aslam v. The State 2012
PCr.LJ 11; Ghulam Qadir v. the Judge Family Court, Murree and
another 1988 CLC 113 and Muhammad Azam v. The State and another
2018 PCr. LJ Note 175 rel.
(c) Islamabad Capital Territory Child Marriage Restraint Act (XI of
2025)---
----Ss. 2(a), 3, 10 & 11---Constitution of Pakistan, Art. 199---
Constitutional petition---Habeas corpus---Custody of wife---Petitioner
sought recovery of his wife who was minor at the time of her Nikkah
with him---Alleged detenue was produced by police before High Court
and the alleged detenue unequivocally affirmed that she had
contracted marriage with petitioner of her own choice and expressed
her desire to reside with him, explicitly declining to return to her
parents---Even during stay of alleged detenueat Crisis Centre, she had
consistently maintained such position---Held: Alleged detenue had
attained puberty and had given free and voluntary consent; she was
at liberty to reside with the petitioner---Marriage in question could
not be invalidated under the provisions of Islamabad Capital
Territory Child Marriage Restraint Act, 2025, rather it stipulated
punishment for those participating or promoting the same---Marriage
contracted inter se the parties was not in contravention to the
injunctions of Islam or any statutory provision---Constitutional
petition was disposed of accordingly.
Mst. Mumtaz Bibi v. Qasim and others PLD 2022 Isl. 228; Mst.
Bakhshi v. Bashir Ahmad PLD 1970 SC 323; Mauj Ali v. Safdar Hussain
1970 SCMR 437; Muhammad Khalid v. Magistrate 1st Class and others
PLD 2021 Lah. 21; Nasreen Bibi v. Station House Officer and others
2024 PCr.LJ 2058 and Ghulam Hussain v. Nawaz Ali and another 1975
PCr.LJ 1049 rel. Ms. Shumaila Rafique Awan for Petitioner.
Mirza Irfan Ghazanfar for Respondents Nos. 3 and 5.
Ms. Ramsha Khalid, State Counsel.
Assisted by: Ms. Amna Danial Khawaja, Judicial Law Clerk.
Date of hearing: 11th July, 2025.
JUDGMENT
MUHAMMAD AZAM KHAN, J.---Through the instant Writ Petition
under Article 199 of Constitution of the Islamic Republic of Pakistan,
1973 (hereinafter referred to as the Constitution ), Muhammad Riaz (
Petitioner ) has challenged the Order dated 23.06.2025 ( Impugned
Order ) passed by the learned District Judge, Islamabad-East (
Respondent No. 1 ) whereby petition under section 491, Cr.P.C for the
recovery of detenue namely Mst. Madiha Bibi wife of the Petitioner,
has been dismissed.
2. Brief facts of the case as per contents of the petition are that the
Petitioner contracted love marriage with Mst. Madiha Bibi (alleged
detenue) according to Muslim Family Laws Ordinance on 30.05.2025 at
Tehsil Courts Complex Taxila, District Rawalpindi, against the whim
and will of the Respondents Nos. 2 to 8. On 21.06.2025 at about 03:30
PM, Respondents Nos. 2 to 8 came to the house of the Petitioner by
trespassing and forcibly took away the detenue with them. The
Petitioner requested the Respondents Nos. 2 to 8 to hand over the
custody of alleged detenue to him but of no avail. Upon refusal, the
Petitioner filed a petition under section 491, Cr.P.C. before learned
Sessions Judge, Islamabad-East, which has been dismissed vide
Impugned Order. Being aggrieved by the Impugned Order, the
Petitioner has filed the instant petition.
3. The learned counsel for the Petitioner has argued that the learned
Trial Court did not appreciate the documents submitted by the
Petitioner while passing the Impugned Order; that the custody of the
alleged detenue is illegal, and if the detenue remains in the custody of
the Respondents Nos. 2 to 8, there is great apprehension to the life,
honor and dignity of the detenue; that the Petitioner being husband of
the detenue is entitled to reunion with his wife/detenue, but the
learned Trial Court while passing the Impugned Order overlooked this
important aspect of the case; that the Impugned Order is full of
surmises and conjectures and is against the principle of law and
criminal jurisprudence. Lastly, learned counsel prayed for acceptance
of instant petition, setting aside of the Impugned Order and handing over the custody of the alleged detenue to the Petitioner being her
husband.
4. On the other hand, learned counsel appearing on behalf of
Respondents Nos. 3 and 5 argued that the Impugned Order is well-
reasoned and does not call for any interference; that the alleged
detenue is not in the custody of Respondents Nos. 2 to 8; that the
alleged detenue was not sui juris at the time of solemnization of her
Nikkah. Lastly, learned counsel prayed for dismissal of instant
petition.
5. I have heard learned counsel for the parties and perused the
available record with their able assistance.
6. Upon meticulous examination of the record, it appears that Mst.
Madiha Bibi/alleged detenue and the Petitioner contracted marriage
on 30.05.2025 at the Tehsil Courts Complex, Taxila, District Rawalpindi.
The Nikahnama does not specify the precise date of birth of the alleged
detenue; instead, it vaguely records her age as 'almost 18 years'. It is
further noteworthy that the Birth Certificate of the alleged detenue,
produced by the Respondents, was registered with NADRA on
12.06.2025, subsequent to the solemnization of the marriage. The date
of birth of the alleged detenue i.e. 15.09.2009, on the said certificate
reflects that she is currently15 years old. In view of the conflicting
material on record, the age of the alleged detenue emerges as a
disputed question of fact, which necessitates recording of evidence
and adjudication by a competent forum of plenary jurisdiction.
Consequently, this Court while exercising its Constitutional jurisdiction
is not empowered to conclusively decide the question of age.
7. During the course of arguments, reliance was placed by the
Respondents upon the judgment reported as Mst. Mumtaz Bibi v.
Qasim and others (PLD 2022 Islamabad 228), to contend that marriages
contracted between a minor and an adult are considered void ab
initio, as the same constitute a criminal offence under the Child
Marriage Restraint Act, 1929 ( CMRA, 1929 ). Furthermore, it was
brought to the attention of this Court that the Islamabad Child
Restraint Marriage Act, 2025 ( ICRMA, 2025 ) has amended the
statutory definition of a 'child', raising the minimum age for females
from sixteen years to eighteen years, thereby bringing it at par with
the age prescribed for males. Prior to this amendment, the threshold
age was sixteen years for females and eighteen years for males under
the said legislation.
8. On the other hand, the Petitioner whilst resisting the above
argument has relied upon Mst. Bakhshi v. Bashir Ahmad (PLD 1970
Supreme Court 323), Mauj Ali v. Safdar Hussain (1970 SCMR 437) and Muhammad Khalid v. Magistrate 1st Class and others (PLD 2021
Lahore 21) in order to assert that the marriage contracted is valid
under the Muslim Family Laws Ordinance, 1961 ( MFLO, 1961 ),
therefore, the Petitioner has the right to recover his wife and protect
their lawful union.
9. Before delving deeper to examine the merits and legal intricacies
of the present case, it is imperative to first consider the definition of
child under the previous as well as the newly amended law. The
relevant provisions of CMRA, 1929 are reproduced herein below for
ready reference:-
2. Definitions. In this Act:
(a) child means a person who, if a male, is under eighteen years of
age, and if a female, is under sixteen years of age;
(b) child marriage means a marriage to which either of the
contracting parties is a child;
(c) minor means person of either sex who is under eighteen years of
age.
(Emphasis added)
10. Under the ICRMA, 2025, the amended definitions are as follow:
2. Definitions. In this Act, unless there is anything repugnant in the
subject or context.
(a) child means a person male or female who is under eighteen
years of age;
(b) child abuse means as defined under the Islamabad Capital
Territory Child Protection Act, 2018, and shall also include the
marriage of a child or solemnization of marriage of a child with
any person over the age of eighteen years or with another child;
(e) child marriage means an act of solemnizing marriage or Nikah
where both or either of the contracting party to the marriage is a
child.
(Emphasis Added)
11. A child marriage, in our legal context, refers to a matrimonial
union where at least one of the contracting parties is under the
minimum legal age prescribed by law, which is 18 years for both males
and females under the ICRMA, 2025. While Islamic jurisprudence
traditionally permits marriage upon attainment of puberty, present
statutory law in Pakistan criminalizes child marriage with an aim to
prevent exploitation, abuse, and premature burdening of the minors. Keeping in view the above position, following moot questions have
emerged for consideration:
1. Whether a marriage valid under Islamic law/Shariah can be
considered void under statutory law, particularly in light of
the ICRMA, 2025?
2. Whether a marriage contract, wherein both or one party is
minor, stands on a distinct footing from contracts governed
by the Contract Act, 1872;
3. In presence of ambiguity or legal silence regarding the
validity of child marriage under statutory law, can Islamic
principles and jurisprudence prevail in determining the
legality of such unions?
4. Whether the case of child marriage would fall within the
definition of Section 375, P.P.C., thereby constituting "rape"?
5. Whether the Court is obligated to engage Child Protection
Officers under the Islamabad Child Protection Act, 2018, to
conduct welfare assessment before and/or after determining
the custody, care, or the validity of the marital union
involving a minor?
1. Whether a marriage valid under the Islamic law/Shariah can be
considered void under the statutory law, particularly in light of
the Act of 2025?
12. Child marriage is deemed valid under the Shariah/Islamic
Jurisprudence on the basis of consent and attainment of puberty,
however, the same is criminalized under the ICRMA, 2025, if the
marriage is contracted under the age of eighteen. Therefore, such a
marriage contracted inter se both or either of the contracting party
under eighteen is not void under the Shariah, it is nonetheless
punishable by law and treated as contrary to public policy, especially
where it undermines the minor s physical, emotional, and educational
development. By adopting a progressive legislative approach aimed at
mitigating the adverse societal impact of child marriages, the
legislature had enacted the CMRA, 1929, which represents a laudable
step toward child protection. The provisions of the CMRA, 1929 have
been carefully and objectively structured, wherein penal
consequences have been imposed upon the adult contracting party (i.e.
an individual above 18 years of age), as well as upon other individuals
including inter alia the parents, guardians, or facilitators who help
arrange, solemnize, conduct, or cause a child marriage to take place.
The ICMRA, 2025 establishes a punitive deterrent for the
contravention of its provisions. It is manifestly clear that the legislation does not attribute any culpability to the minor party to the
marriage. It is pertinent to mention herein that the ICMRA, 2025 does
not render the marriage itself void; instead, as elaborated above, it
confines criminal liability to specific categories of individuals
responsible for the commission of a child marriage. As marriage is
governed under MFLO, 1961, Dissolution of Muslim Marriages Act,
1939 and the West Pakistan Family Courts Act, 1964 in Pakistan, the
provisions of CMRA, 1929 do not override them. The latter being a
separate law punishes those who are responsible for an underage
marriage, however, the ICMRA, 2025 does not nullify the marriage
itself. Reliance in this regard is placed upon judgement titled Nasreen
Bibi v. Station House Officer and others (2024 PCr.LJ 2058), wherein
the Lahore High Court, whilst keeping in view the CMRA, 1929,
commented on the legality and validity of the marriage contracted by
observing that:
21. The Act of 1929 applies to all citizens of Pakistan regardless of
religion. Since Respondent No.3 has married a minor, he may be
prosecuted under the Child Marriage Restraint Act. The case of
Mst. Bakhshi v. Bashir Ahmad (PLD 1970 SC 323) is quite
instructive although it pertains to a Muslim marriage. In the said
case a 15-year old girl, whose mother had remarried and whose
father had died when she was quite young, had contracted a
marriage of her own will. The mother lodged FIR accusing the
daughter's husband of kidnapping her. After examining her
medically, the doctor estimated the girl's age to be between 16
and 17 years old. The husband moved an application under
section 491, Cr.P.C. before the High Court to obtain his wife's
release. The High Court released the young girl and allowed her
to choose who she wanted to live with. The Hon'ble Supreme
Court upheld the decision noting that the husband or other
persons who helped to solemnize the marriage could be charged
with the crime but the marriage itself would not be void if a girl
under the age of 16 married in violation of the Act of 1929.
(Emphasis added)
13. Furthermore, the contention that this Court should not recognize
the marriage between the Petitioner and Mst. Madiha Bibi, as it is in
violation of the ICMRA, 2025, has no force. The Verse 6 of Surah Al-
Nisa lays down two preconditions when contracting marriage, i.e.,
Majority or Bulugh; and Mental maturity or Rushd.
And test the orphans [in their abilities] until they reach
marriageable age. Then if you perceive in them sound
judgement, release their property to them. In Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCMR
437), the august Supreme Court of Pakistan held:
"Mr. A.G. Choudhri, learned counsel for the Petitioner, has
contended that the High Court should not have accepted the
application filed by the Respondent under Section 491, Cr.P.C.
Mst. Musarrat being a minor girl should have been ordered to go
with her father. He further contended that as a case was
pending against Respondent No. 1 under Sections 363/366, P.P.C.,
the High Court should not have entertained an application under
Section 491, Cr.P.C. The contention of the learned counsel has not
impressed us. It is not disputed that Mst. Musarrat has attained
the age of puberty and she had married with Respondent No.1 of
her own free will. Such a marriage is valid according to
Muhammadan Law. It was urged that such marriage is invalid
under the Child Marriage Restraint Act and, therefore, it should
not have been recognized by the High Court. This contention
also has no force. Since the marriage is valid under the
Muhammadan Law, Respondent No.1 is the guardian of Mst.
Musarrat and the High Court was perfectly justified in allowing
her to go with her husband." (Emphasis added)
The above view was reiterated in Mst. Bakhshi v. Bashir Ahmad and
another (PLD 1970 SC 323) and followed in Tahira Bibi v. Station House
Officer and others (PLD 2020 Lahore 811), Muhammad Safeer v.
Additional Sessions Judge (West) Islamabad and others (PLD 2018
Islamabad 385), Mst. Shazia and another v. S.H.O. Police Station Kumb,
District Khairpur and others (2011 YLR 493), Allah Bakhsh v. Safdar
and others (2006 YLR 2936), Ghulam Qadir v. The Judge Family Court,
Murree and another (1988 CLC 113), Zafar Khan v. Muhammad Ashraf
Bhatti and another (PLD 1975 Lahore 234), Ghulam Hussain v. Nawaz
Ali and another (1975 PCr.LJ 1049), and Mushtaq Ahmad v. Mirza
Muhammad Amin and another (PLD 1962 (W. P.) Karachi 442).
14. The validity of the marriage, contracted with the minor, has not
been targeted in the ICMRA, 2025; rather the latter has been enacted
merely to punish the party contracting, arranging and/or solemnizing
a marriage with a child. Reliance in this regard is further placed upon
Allah Nawaz v. Station House Officer, Police Station Mahmood Kot
District, Muzaffargarh (PLD 2013 Lahore 243) in order to reiterate a
settled principle. The relevant portion in the judgement is reproduced
hereunder:
In this respect reference may be made to the case "Mst. Hajra
Khatoon and another v. Station House Officer, Police Station
Fateh Jang, District Attock and 2 others" (PLD 2005 Lahore 316),
wherein it has been held that "Nikah/Marriage contracted by a woman, not having attained the age of majority, as defined in
law, but having attained puberty as defined in Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 is valid and not void."
Furthermore, even the Child Marriage Restraint Act (XIX of
1929), does not declare marriage of a girl who is pubert but
under the age of sixteen years to be invalid or void. Had the
legislators any intent to declare the marriage of a girl below the
age of majority invalid, a specific clause could be inserted in the
Child Marriage Restraint Act (XIX of 1929). In the absence of any
such specific provision in the Act, ibid, it would be highly unjust
to import a negative intent which was not considered by the
legislators at the time when said law being formulated.
(Emphasis added)
Thus, the ICMRA, 2025 (or previously the CMRA, 1929) does not lay
down that the marriage so performed will be invalid, nor has it ever
been held that such a marriage will be void ab initio.
15. This Court, keeping in view the dictum laid down by the apex
Courts of Pakistan, is unable to agree with the findings in Mst. Mumtaz
Bibi (PLD 2022 Islamabad 228), wherein the marriage contracted in
violation of CMRA, 1929 is to be considered void ab initio. The concept
of attainment of puberty is not confined solely to the domain of
Muslim Personal Law in Pakistan; rather, it finds express recognition
within the statutory framework, thereby blurring the lines between
personal and codified law. For instance, Section 2(a) of the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 defines an adult as a
male who has attained the age of eighteen years or a female who has
attained sixteen years, or in either case, has attained puberty. This
statutory reference to puberty, as a determinant of legal majority in
certain contexts, gives rise to an interpretive overlap between
personal law and general legislative principles. Similarly, Section 2(vii)
of the Dissolution of Muslim Marriages Act, 1939 explicitly
acknowledges the right of a female to repudiate a marriage on
attaining the age of sixteen years, provided the marriage was not
consummated, thereby linking legal agency with both age and the
status of puberty.
16. This statutory incorporation of the concept is further affirmed
by judicial interpretation. In Tahira Bibi v. SHO and others (PLD 2020
Lahore 811), the Lahore High Court reaffirmed the doctrinal basis of
khiyar-ul-bulugh (option of puberty), noting that a female who has
attained puberty may repudiate a marriage contracted on her behalf
during minority, provided the repudiation occurs before the age of
eighteen and the marriage remains unconsummated. Thus, while the
notion of puberty originates in Muslim Personal Law, its integration into statutory provisions like the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 and the Dissolution of Muslim Marriages
Act, 1939 demonstrates that it has become embedded within Pakistan s
broader legal framework, making it a legally significant criterion
beyond personal law alone.
17. It has been overserved that the legal framework surrounding
child marriages in Pakistan reveals a deep-rooted contradiction
between personal law (incorporated into certain laws as mentioned
above) and statutory enactments. On one hand, under Islamic
jurisprudence, a marriage contracted with a minor who has attained
puberty and consents to the union is deemed valid. On the other hand,
the ICMRA, 2025, while stopping short of rendering the marriage void,
imposes penal consequences on the adult party and facilitators of a
child marriage. This bifurcation, where the marriage is considered
valid under one body of law but criminal under another, creates a
legal paradox that risks frustrating the very objective of the statute,
which is to act as a deterrent against child marriages and protect
minors from premature unions that could harm their physical,
emotional, and educational well-being.
18. If child marriages were to be rendered void ab initio, complex
issues of legitimacy of children born out of such unions in certain
cases and recognition of spousal rights would arise, leading to
significant social, legal, and procedural complications. However, by
validating such a marriage even though the statute criminalizes the
act, it would inadvertently weaken the deterrent effect of the ICMRA,
2025. This duality creates legal uncertainty and provides room for
parties to circumvent protective legislation under the guise of
religious permissibility, thereby undermining the legislative intent and
weakening enforcement mechanisms aimed at eradicating child
marriage. In light of these contradictions, it is recommended that the
Federal Government undertake a harmonization exercise to reconcile
personal law with child protection legislative framework.
2. Whether a marriage contract, wherein both or one party is minor,
stands on a distinct footing from contracts governed by the
Contract Act, 1872:
19. Moreover, Section 11 of the Contract Act, 1872 stipulates that a
person is competent to contract if he/she has attained the age of
majority as prescribed by the law applicable. This necessitates
reference to Section 3 of the Majority Act, 1875, which provides that
every person domiciled in Pakistan shall be deemed to have attained
majority upon reaching the age of eighteen years. However, in
instances where a guardian has been appointed by a Court for the
person or property of a minor, or where the Court of Wards has assumed superintendence over the minor's property, majority is
deemed to be attained upon completion of twenty-one years of age.
These provisions are subject to Section 2 of the Majority Act, 1875
which reads as under:-
2. Savings: - Nothing herein contained shall affect:
(a) the capacity of any person to act in the following matters namely,
marriage, dower, divorce and adoption;
(b) the religion, religious rites and wages of any class of Her
Majesty's subjects in Pakistan; or
(c) the capacity of any person who before this Act comes into force
has attained majority under the law applicable to him.
Notably, Section 2 of the Majority Act, 1875 expressly excludes from
its ambit family matters pertaining to marriage, divorce and dower. A
harmonious reading of Section 11 of the Contract Act, 1872 and the
relevant provisions of the Majority Act, 1875 reveals that these
enactments do not govern a person s legal capacity in matters such as
marriage, which continue to be regulated by MFLO, 1961, Dissolution
of Muslim Marriages Act, 1939 and Family Courts Act, 1964. Reliance in
this regard is placed on judgement cited supra (2024 PCr. LJ 2058),
wherein the Lahore High Court observed the following:
25. Section 2 of the Majority Act expressly excludes marriage and
divorce from its application. A combined reading of this
provision and section 11 of the Contract Act would show that
they have no bearing on the capacity of a person to act in some
matters, including marriage, which are left to be governed by
the individual's personal law - unless the Parliament has enacted
a special law in that regard. As a result, the CMA and the Divorce
Act of 1869 govern Christian marriage and divorce in Pakistan.
The Child Marriage Restraint Act, 1929, does not override them.
It is a separate law that punishes those who are responsible for
an under-age marriage but does not nullify the marriage itself.
(Emphasis added)
20. Furthermore, the question of what amounts to consent for
purpose of entering into a marriage contract was addressed by the
learned Federal Shariat Court in Muhammad Aslam v. The State (2012
PCr.LJ 11) wherein it was held that a consenting adult is a person who
has come of age responsible enough to understand the consequence of
marriage and the responsibilities that it entails. There relevant portion
is reproduced as under:
10. Marriage involves a consent which is quite distinct in definition
and in differentiation from all types of other consent, e.g., common consent, mutual consent, or implied or express consent.
Consent for marriage is eloquent and declaratory, being more
specific and expressive. Consent for marriage has deeper and
wider implications for criminal, civil, and family laws, e.g.,
inheritance, etc. Therefore, free consent, for marriage, does not
mean just acceding to or saying 'yes' to the circumstantial or
situational dictate. While analyzing quality, value or worth and
features of such a free consent, following need to be considered:
Ability of exercising free choice; capacity (legal capacity: not
only sane, but mature mind, i.e., not only puberty, mere majority
but age of responsive and conscious consent); capability to use
that capacity; depending upon capacity, impediments to or
assistance available for application of mind e.g., availability of
assistance of wali and wakil (guardian-counsel and supporter-
protector); in one's own interest or benefit; extent of free
availability of possible options to choose from; environ of
freedom.
21. In light of the foregoing legal framework, it is evident that a
marriage contract stands on a distinct footing from contracts governed
by the Contract Act, 1872, owing to the personal, religious, and
sociocultural dimensions uniquely attached to matrimonial unions.
While Section 11 of the Contract Act prescribes that contractual
capacity is attained upon reaching the age of majority as defined
under the Majority Act, 1875, Section 2 of the Majority Act expressly
excludes matters pertaining to marriage, dower, and divorce from its
application. Unlike commercial contracts, which are founded purely
on legal capacity, marriage contracts are governed under special
enactments, wherein the determination of age has not been made
categorically by the legislature, thereby allowing the involvement of
personal laws.
3. In presence of ambiguity or legal silence regarding the validity of
child marriage under statutory law, can Islamic principles and
jurisprudence prevail in determining the legality of such
unions?
22. In the context of a minor girl attaining puberty, the developed
Islamic jurisprudence has consistently recognized her capacity to
contract a valid marriage, provided she gives free and informed
consent. Under the Muslim Personal Law, puberty is presumed at the
age of fifteen, and once attained, a Muslim female is considered sui
juris, capable of entering into a marital contract without the necessity
of a guardian s consent. Reliance in this regard is placed on a
judgement titled Ghulam Qadir v. The Judge Family Court, Murree and another (1988 CLC 113), wherein the Lahore High Court held the
following:
Points arising for our decision in the appeal are as to the age of the
respondent at the time of her marriage with appellant and the
effect of section 23 of Family Courts Act on the claim set up by
the respondent. For proper decision of these points, reference to
principles of Mohammadan Law on the subject of marriage is
necessary. In regard to capacity of marriage, pare-251 of
Mohammadan Law by Mulla states that every Mohammadan of
sound mind who has attained puberty may enter into a contract
of marriage. In the absence of evidence, puberty is presumed to
have been attained on completion of the age of fifteen years. By
section 13 of Muslim Family Laws Ordinance, 1961, in clause
(VII) of section 2 of Act No.VIII of 1939 (Dissolution of Muslim
Marriages Act, 1939), the word '15' was substituted by the word
'16'. This amendment, however, does not lay down that the
female attains puberty at that stage only. It simply enables a girl
to exercise the option of puberty when she attains the age of 16
years, whereas, in accordance with the unamended clause (VII),
if given in marriage before a female attained 15 years, she could
exercise her right of option of puberty after attaining the age of
15 years and before reaching the age of 18 years provided the
marriage was not consummated. See Zafar Khan v. Muhammad
Ashraf Bhatti and others; PLD 1975 Lahore 234. It may also be
observed that the provisions of Child Marriages Restraint Act
(XIX of 1929) do not render the marriage invalid though it makes
punishable a marriage made in violation of its provisions.
23. This position has been reaffirmed through various judicial
pronouncements, wherein the Courts have held that while such
marriages may constitute an offence under the CMRA, 1929, they are
not rendered void or invalid merely on account of the girl being under
the statutory age of sixteen or eighteen, if she has attained puberty
and consented. Reliance in this regard is placed upon Muhammad
Azam v. The State and another (2018 PCr. LJ Note 175), wherein the
Lahore High Court held that:
There is no cavil about the proposition that Nikah of girl under the
age of sixteen years is violative of Child Marriage Restraint Act,
1929 but in the light of dictum laid down by this Court in the
case reported as Allah Nawaz v. Station House Officer Police
Station Mahmood Kot District. Muzaffargarh (PLD 2013 Lahore
243), Mst. Atia Bibi, a Muslim girl below sixteen years of age who
has otherwise attained puberty and was a consenting party to
the marriage, her marriage with the petitioner though, is prima facie, an offence under Child Marriage Restraint Act, 1929
carrying maximum sentence of imprisonment exceeding upto
six months yet, the same cannot be termed as invalid marriage.
24. In situations where statutory law appears to criminalize an act
otherwise valid under Shariah, and where the statute does not
explicitly declare such a marriage void, Islamic principles shall
prevail, particularly in matters of personal law as preserved under
Article 227 of the Constitution read with provisions of the Enforcement
of Shari ah Act, 1991 (hereinafter referred to as the Act, 1991 ).
Sections 3 and 4 of the Act, 1991 state the following: -
3. Supremacy of Shari'ah. (1) The Shari'ah that is to say the
Injunctions of Islam as laid down in the Holy Qur'an and
Sunnah, shall be the supreme law of Pakistan.
(2) Notwithstanding anything contained in this Act, the judgment of
any Court or any other law for the time being in force, the
present political system, including the Majlis-e-Shoora
(Parliament) and Provincial Assemblies and the existing system
of Government, shall not be challenged in any Court, including
Supreme Court, the Federal Shariat Court or any authority or
tribunal:
Provided that nothing contained herein shall affect the right of the
non-Muslims guaranteed by or under the Constitution.
4. Laws to be interpreted in the light of Shari'ah. For the purpose of
this Act:-
(a) while interpreting the statute-law, if more than one
interpretation is possible, the one consistent with the Islamic
principles and jurisprudence shall be adopted by the Court; and
(b) where two or more interpretations are equally possible, the
interpretation which advances the Principles of Policy and
Islamic provisions in the Constitution shall be adopted by the
Court.
25. Therefore, in cases of ambiguity or legislative silence regarding
the validity of such unions under the ICMRA, 2025, the Shariah-
compliant marriages have to be given recognition, unless there exists a
clear and unambiguous legislative intent to override personal law
through a special statute or provision contained therein. Therefore,
when there is ambiguity present in a statute, external sources of
Islamic principles and jurisprudence in the light of Sections 3 and 4 of
the Enforcement of Shari ah Act, 1991, can be made applicable with a
view to determining the factum of legality of the marriage. Section 3 of
the Act, 1991 unequivocally declares that the Shari ah, as laid down in the Qur an and Sunnah, shall be the supreme law of Pakistan, while
Section 4 mandates that laws must be interpreted in a manner
consistent with Islamic principles where multiple interpretations are
reasonably possible. In this context, when the ICMRA, 2025,
criminalizes the act of child marriage without expressly declaring
such marriages to be void, the statutory silence on the question of
validity cannot be presumed to imply an intent to override settled
Islamic principles. To infer such an intention, otherwise absent in the
legislative language, would itself amount to reading into the law,
which is prohibited as held in the Allah Nawaz s case (supra) (PLD
2013 Lahore 243). It is thus respectfully submitted that Shari ah-
compliant marriages, as long as they are not explicitly declared void
by the Legislature, are to be given legal recognition in cases where the
statute is silent. Reliance herein is placed upon Ghulam Hussain v.
Nawaz Ali and another (1975 PCr.LJ 1049), wherein the Court held the
following:
There can, therefore, be no doubt that though under sixteen she is a
pubert, which fact has not been disputed. All that is said is that
she is under 16 years of age and could not have contracted a
marriage without the consent of her guardian, that is the
petitioner, not only under the Muhammadan Law but also under
the provision of the Child Marriage Restraint Act, 1929. The
detenu was produced in Court pursuant to an order dated 9th
August 1974, and we have examined her. She has stated that she
has married respondent No. 1, Nawaz Ali Dero, willingly and
that she was living with him of her own free will and accord. As
against the petitioner she stated that he used to beat her and
make false allegations against her. She also expressed her desire
to live with her husband. In the context of the above statement
and the fact that she is pubert, we do not see how she cannot
contract marriage on attaining puberty under the Muhammadan
Law without her father's consent a law is well-settled and, in
this view of the matter, the consent of the father was
immaterial. Even the validity of the marriage cannot be assailed
for tine effect of the Child Marriage Restraint Act would merely
be to punish the male for contracting a marriage with a child.
(Emphasis added)
26. It is important to mention herein that the principles contained in
Mohammedan Law could only be consulted as a reference book,
therefore, they cannot be termed to be statutory law having binding
effect upon which any presumption could be drawn against a person.
However, it does serve the purpose of providing guidance in matters
related to personal law, which can be relied upon in order to reach a
holistic viewpoint. The real legal and ethical dilemma arises when the child involved in a marriage is between the ages of tender years, who
may have attained puberty, but might not have Rushd (mental
maturity). Indubitably, a child of tender age lacks the physical,
emotional, and psychological maturity to comprehend or withstand
the obligations of marital life, even after attaining puberty. If such a
marriage is validated, either due to statutory silence or under the
Islamic personal law, it can lead to grave and irreversible
consequences, including physical harm, psychological trauma, denial
of education, and exposure to abuse or exploitation. Recognizing such
marriages as valid also risks normalizing child exploitation and
effectively defeats the purpose of protective legislation such as the
ICMRA, 2025. The law must, therefore, adopt express and firm stance
that balances religious principles with the constitutional and moral
obligation to protect children from harm.
27. Furthermore, Article 12 of the United Nations Convention on the
Rights of the Child (UNCRC), which was not mentioned in Mst. Mumtaz
Bibi (Supra), mandates that every child capable of forming their own
views shall have the right to express those views freely in all matters
affecting them, and that such views must be given due weight in
accordance with the age and maturity of the child. For ready
reference, Article 12 of UNCRC is reproduced hereunder:
Article 12:
1. States Parties shall assure to the child who is capable of forming
his or her own views the right to express those views freely in
all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent
with the procedural rules of national law. (Emphasis added)
This obligation is binding upon States and reinforces the principle
that children are not passive subjects, but active rights-holders. In
judicial proceedings, especially those involving custody, guardianship,
or protection matters, the Courts are therefore bound to assess both
the age and maturity of the child before determining the weight to be
given to their opinion. This also aligns with Islamic jurisprudence,
which similarly recognizes the concepts of bulugh (puberty) and rushd
(mental maturity) as essential criteria for determining legal
competence and decision-making capacity in minors.
4. Whether the case of child marriage would fall within the
definition of Sections 375 and 377A, P.P.C. thereby constituting
"rape"? 28. In Mst. Mumtaz Bibi (2022 PLD Islamabad 228), the Islamabad
High Court stated that a marriage contract involving a child under 18,
being contrary to Sections 375 and 377A of the P.P.C., is executed for an
unlawful purpose, and is therefore void ab initio. Such a contract
cannot be registered or enforced, as doing so would undermine child
protection laws and Article 9 of the Constitution. However, this issue
was discussed prior in time in the judgement titled Allah Nawaz
(Supra), wherein the Court determined whether the case of child
marriage would fall within the definition of Section 375, P.P.C., thereby
constituting "rape"? Relevant portion of the judgement is reproduced
hereunder:-
5. It is therefore, held that marriage of a muslim girl, she may be
below the age of sixteen years who has otherwise attained
puberty and is also a consenting party to the marriage and there
being no factor whatsoever to disbelieve the said factual
position is valid for all intents and purposes. The next question
would be whether the case of such a couple would fall within
the definition of section 375, P.P.C. and this relationship can be
termed as "rape"? In order to elucidate this point, Section 375,
P.P.C. is reproduced hereunder: -
"375. Rape: - A man is said to commit rape who has sexual
intercourse with a woman under circumstances falling under
any of the five following descriptions: -
(i) against her will;
(ii) without her consent;
(iii) with her consent, when the consent has been obtained by
putting her in fear of death or hurt;
(iv) with her consent, when the man knows that he is not
married to her and that the consent is given because she
believes that the man is another person to whom she is or
believes herself to be married; or
(v) with or without her consent when she is under sixteen years
of age."
Although section 375(v), P.P.C. provides that in case of sexual
intercourse of a man with a girl under the age of sixteen would
amount to rape, whether such act is committed with, or without
the consent of such girl, but I am afraid this section, cannot be
made applicable to the case where a girl, though under the age
of sixteen years, in explicit terms admits to have entered into
marriage, as is the case in hand. The word "rape" has been
defined in BLACK'S LAW DICTIONARY-SIXTH EDITION as under: "Unlawful sexual intercourse with a female without her consent.
The unlawful carnal knowledge of a woman by a man forcibly
and against her will. The act of sexual intercourse committed by
man with a woman not his wife and without her consent,
committed when the woman's resistance is overcome by force or
fear, or under other prohibitive conditions.
A male who has sexual intercourse with a female not his wife is
guilty of rape if: (a) he compels her to submit by force or by
threat of imminent death, serious bodily injury, extreme pain or
kidnapping, to be inflicted on anyone; or (b) he has substantially
impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs,
intoxicants or other means for the purpose of preventing
resistance; or (c) the female is unconscious, or (d) the female is
less than 10 years old."
Keeping in view the above reproduced definition of word "rape" in
Black's Law Dictionary Sixth Edition, the relationship of Mst.
Janaeela Bibi with Muhammad Iqbal respondent No.2 cannot be
equated with "rape". In the same terms it may be held that
performance of conjugal rights by the spouses, even though the
girl may be below the age of sixteen years but has attained
puberty and is also consenting party to such marriage, cannot be
termed as "unlawful sexual intercourse" so as to attract section
375, P.P.C. in order to initiate proceedings against them.
6. For what has been discussed above, since, Mst. Jameela Bibi
claims herself to be pubert and by admitting her willful nikah
with Muhammad Iqbal respondent No.2 deposed to accompany
her husband, therefore, the instant petition is found to be devoid
of merit, resultantly the same is dismissed and Mst. Jameela Bibi
is set at liberty. (Emphasis added)
29. The consistent judicial position has been that a Muslim girl, who
has attained puberty and freely consents to marriage, has the right to
contract marriage, even if under sixteen years of age. These
precedents clearly hold that while such a marriage may amount to an
offence under the CMRA, 1929, it does not render the marriage invalid,
nor can consummation within such a marriage be treated as rape
under Section 375 of the Penal Code. The element of lawful
relationship and consent within marriage fundamentally distinguishes
such cases from exploitative acts that Sections 375 and 377A P.P.C.
were designed to penalize.
30. To render marital relations void ab initio solely on the basis of
statutory age as done in Mst. Mumtaz Bibi Supra, while disregarding the attainment of puberty and the existence of lawful consent, may
give rise to grave legal and societal consequences, including but not
limited to the question regarding the legitimacy of a child born out of
such wedlock, severe emotional and psychological distress to the
minor, potential physical harm, the real and pervasive risk of honor-
based violence, and exposure to maltreatment or domestic abuse
within the familial environment. On the other hand, legalizing child
marriage carries grave consequences of its own, particularly for girls
in rural and underprivileged communities, where limited access to
education, healthcare, and economic opportunities already prevail.
Early marriages often lead to forced pregnancies, poor reproductive
health, domestic violence, and lifelong socio-economic
marginalization. These marriages deny the minors their right to
education, personal development, and autonomy, thereby
perpetuating gender inequality and intergenerational poverty.
Reliance in this regard is placed on Para No. 9 in the judgement titled
Tahira Bibi v. Station House Officer and others (PLD 2020 Lahore 811).
5. Whether the Court is obligated to engage Child Protection Officers
under the Islamabad Child Protection Act, 2018, to conduct
welfare assessment before determining the custody, care, or the
validity of the marital union involving a minor?
31. In cases involving underage or child marriages, where issues
qua puberty, consent, psychological maturity, or potential harm to the
minor arise, it is imperative for the Courts to undertake a case-specific
inquiry. Such determination must account for multiple contextual
factors, including the attainment of puberty, voluntariness of consent,
medical examination to assess bone age, socioeconomic background of
the minor, and the character and age differential of the adult party to
the marriage, which may create a power imbalance. The overarching
principle of welfare of the minor remains paramount, irrespective of
the nature of the proceedings. Courts are therefore obligated to adopt
a child-centric and childsensitive approach, ensuring that the minor s
mental, physical, and emotional well-being is thoroughly assessed and
protected through appropriate judicial and administrative safeguards.
The risk of coercion, psychological manipulation, and social pressure
is considerably higher in child marriage cases, thereby warranting
even greater judicial vigilance and child-sensitive adjudication.
Applying child-centric approach to cases of child marriage, the Court
must explore whether the minor has voluntarily, independently, and
knowingly consented to such a union. This includes evaluating their
maturity, developmental stage, and any power imbalances,
particularly in instances involving significantly older spouse. The
presence of cultural or religious justification cannot eclipse the legal
requirement to assess and ensure the holistic welfare of the child. In Tahira Bibi s case (supra) PLD 2020 Lahore 811, the Lahore High Court,
keeping in view the welfare of the minors involved, observed the
following:
Examining this proposition while seeing it through the prism of rule
"loco parentis" is observed that the paramount consideration
before the Courts has always been the welfare and betterment of
a minor. The Courts always act in loco parentis position while
keeping in view a variety of considerations. A formalistic
approach commonly associated with the adjudication of
adversarial civil disputes may not be conducive to the exercise
of parental jurisdiction by this Court. A more proactive role shall
have to be adopted so as to ensure the protection of the best
interest of the minor. The expression welfare shall have to be
construed in a way as to include in its compass all the dominant
factors essential for determining the actual welfare of the
minor/child with a progressive outlook enabling him to prove as
a useful entity. Technicalities of law are not supposed to
circumvent the exercise of jurisdiction and powers by the Courts
in dealing with the matters pertaining to the minor/child. All
courts are therefore, supposed to exercise their jurisdiction
proactively to forestall any endeavor to cause a breach to the
fundamental rights of the children, the protection/provision of
which essentially is also in the welfare of the minor/child.
32. In view of the above, it is imperative that all Courts dealing with
cases involving alleged child marriages adopt a participatory,
protective and trauma-informed approach, one that treats the minor
not merely as a subject of parental or spousal authority, but as a
rights-bearing individual whose voice must guide the inquiry and
whose welfare must define the outcome. In accordance with the
Islamabad Child Protection Act, 2018 (ICPA, 2018), the Child Protection
Officers (CPOs) should be engaged by the Courts to provide
professional assistance and to ensure that the welfare of the child
remains paramount. Pursuant to Section 12 of the said Act, 2018, the
CPOs must conduct an initial assessment upon receiving information
from the Court that the child may be in need of care and protection.
This assessment includes engaging the child, parents, or guardians,
and evaluating the immediate environment to determine if protective
measures are warranted. For ready reference, Section 12 of the ICPA,
2018 is reproduced hereunder:-
12. Initial assessment. (1) Whenever a Child Protection Officer
receives a report that a child is in need of protection and care,
he shall carry out, as soon as possible, an initial assessment as prescribed to determine whether the child requires care in
accordance with the provisions of this Act.
(2) During initial assessment, the Child Protection Officer may
request that the child and his parents, legal guardian or any
other person responsible for the care of the child, if any, attend
at such premises as may be specified by the Child Protection
Officer, as may be prescribed.
If the initial assessment under Section 12 indicates potential harm,
neglect, or abuse, the Child Protection Officer is obligated under
Section 13 to carry out a comprehensive assessment of the child and
the family environment within thirty days, whilst incorporating the
child's own views where they demonstrate sufficient age and maturity.
Should this assessment reveal a credible risk to the child, such as the
threat of honor killing, domestic violence, exploitation or
psychological abuse, the CPO must develop a Child Care Plan under
Section 14. Furthermore, where necessary, an application for care and
placement is to be made to the Court under Section 16, and the Court,
upon consideration of representations from the family and the CPO s
report as mandated under Section 17, may pass such orders as are
necessary to secure the child s safety, including placement in
appropriate alternative care. This collaborative judicial-administrative
mechanism ensures that the child s best interests are assessed and
protected through a legally structured and evidence-based process,
rather than presumptive adjudication. Sections 16 and 17 of the ICPA,
2018 are also reproduced hereunder for the ease of understanding:
16. Care and placement of a child. Notwithstanding the provision of
section 15, where the child care plan specifies that the child will
be at risk of significant harm, abuse or exploitation if he
remains in care of his parent, legal guardian or other current
carer, if any, an application shall be made immediately to the
Court for the care and placement of the child in an appropriate
form of alternative care.
17. Application to the Court and its procedure. (1) Subject to the
provisions of the Guardians and Wards Act, 1890 (VIII of 1890),
any application to the Court for care and placement of a child or
to implement child care plan under this Act shall be made by the
Child Protection Officer.
(2) Before making any order the Court shall
(a) order parents, legal guardian or current carer, if any, of the child
to make representations to the Court;
(b) consider the reports of and take evidence from the child
Protection Officer and any other relevant parties to the proceedings;
(c) consider the Child Care Plan which must be filed as part of the
application; and
(d) seek views of the child where the child is of sufficient age and
level of maturity.
(3) Upon the application under subsection (1), the Court may make
such order as it deems necessary to ensure that the child is
provided with appropriate care or alternative care services, as
the case may be:
Provided that the Court shall specify the length of time for which
the care and placement order is applicable.
33. In view of the sensitive and complex nature of cases involving
underage or child marriages, it is mandatory that all Guardian Courts,
Family Courts, and Courts exercising jurisdiction under Section 491,
Cr.P.C. shall, in the larger interest and welfare of the minor, call upon
the Child Protection Officers (CPOs) appointed under the Islamabad
Child Protection Act, 2018, to assist the Court through a statutory
welfare assessment. The Courts shall consider such assessments and
reports as essential tools in evaluating the welfare of the child, and no
final determination regarding custody, marital status, or care shall be
made without due consideration of the findings and recommendations
of the CPO. This direction is issued to ensure that decisions affecting
minors are grounded in a child-centric, legally structured, and
evidence-based process, consistent with the mandates of the ICPA,
2018 and the constitutional obligation to protect the best interests of
the child under Articles 9, 14, 25, and 35 of the Constitution.
34. In the present case, the alleged detenue was produced by Mr.
Shabbir, S.I., before this Court on 11-07-2025, wherein the alleged
detenue unequivocally affirmed that she had contracted marriage
with the Petitioner of her own choice and expressed her desire to
reside with him, explicitly declining to return to her parents. It is
noteworthy that even during her stay at the Crisis Centre, Islamabad,
she has consistently maintained this position. Accordingly, in view of
the fact that the alleged detenue has attained puberty and appears to
have given free and voluntary consent, she shall be at liberty to reside
with the Petitioner. In these circumstances, the instant petition is
disposed of. The ICMRA, 2025 does not invalidate their marriage,
rather it has stipulated punishment for those participating or
promoting the same. Therefore, the marriage contracted inter se the
parties in the instant case cannot be said to be in contravention to the
injunctions of Islam or any statutory provision. 35. Before parting with this judgment, this Court deems it
appropriate to make certain recommendations in aid of legislative
clarity and institutional consistency:
RECOMMENDATIONS:
I. Given the sensitive nature of cases involving underage or child
marriages, it is hereby directed that all Guardian Courts, Family
Courts, and Courts exercising jurisdiction under Section 491,
Cr.P.C. must engage Child Protection Officers (CPOs) under the
Islamabad Child Protection Act, 2018 to conduct a statutory
welfare assessment. The CPO s report should be treated as an
essential aid in determining custody, care, or marital status of
the minor. This approach ensures child-centric, evidence-based
decision-making in line with constitutional protections under
Articles 9, 14, 25 and 35.
II. In light of the inconsistencies across various statutes qua the
determination of age, it is recommended that the Federal
Government must urgently undertake a legislative review.
Harmonizing these laws with the ICPA, 2018, and Pakistan s
obligations under the UNCRC to essentially protect minors,
uphold constitutional rights, and ensure legal clarity. For the
convenience of the Federal Government, the discrepancies in
different statutes are highlighted as under:-
(i) The definition of adult under Section 2(a) of the Offence of Zina
(Enforcement of Hudood) Ordinance, 1979, wherein an adult is
defined to be a person who has attained, being a male, the age of
eighteen years or, being a female, the age of sixteen years, or has
attained puberty.
(ii) Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 states
that she, having been given in marriage by her father or other
guardian before she attained the age of sixteen years,
repudiated the marriage before attaining the age of eighteen
years:
Provided that the marriage has not been consummated.
(iii) Section 21 of the Guardians and Wards Act, 1890 talks about the
capacity of minors to act as guardians. A minor is incompetent
to act as guardian of any minor except his own wife or child or,
where he is the managing member of an undivided Hindu
family, the wife or child of another minor member of that
family.
(iv) The Majority Act, 1875. Section 2 of which states the following
Savings: - Nothing herein contained shall effect. (a) the capacity of any person to act in the following matters
(namely), marriage, dower, divorce and adoption;
Section 3 states that the age of majority, of persons domiciled in
Pakistan, would be attained on becoming 18 years old.
(v) 375. Rape:- A man is said to commit rape who has sexual
intercourse with a woman under circumstances falling under
any of the five following descriptions,
(i) against her will,
(ii) Without her consent,
(iii) With her consent, when the consent has been obtained by
putting her in fear of death or of hurt,
(iv) With her consent, when the man knows that he is not
married to her and that the consent is given because she
believes that the man is another person to whom she is or
believes herself to be married; or
(v) With or without her consent when she is under sixteen years
of age.
(vi) 377A. Sexual abuse. Whoever employs, uses, forces,
persuades, induces, entices, or coerces any person to engage
in, or assist any other person to engage in fondling, stroking,
caressing, exhibitionism, voyeurism or any obscene or
sexually explicit conduct or simulation of such conduct
either independently or in conjunction with other acts, with
or without consent where age of person is less than eighteen
years, is said to commit the offence of sexual abuse.
(vii) The National Commission on the Rights of Child Act, 2017.
2. Definitions-- In this Act, unless there is anything repugnant in
subject or context,--
(b) "child" means any person below the age of eighteen years;
(c) "child rights" mean and include, but limited to, rights of child in
the United Nations' Convention on Rights of the Child and in any
other domestic law;
(viii) Juvenile Justice System Act, 2018
2. Definitions. In this Act, unless there is anything repugnant in the
subject or context, (b) "child" means for the purposes of this Act a person who has not
attained the age of eighteen years;
(ix) Islamabad Capital Territory Child Protection Act, 2018.
Definitions:- (1) In this Act, unless the context otherwise requires,-
(d) "child" means a person who has not attained the age of eighteen
years;
III. It is recommended that the Federal Government adopt a clear
statutory stance regarding the marriage contracted involving
minors, even if they have attained puberty and show signs of
mental maturity. It is necessary to do so in order to protect
children of tender age. To uphold constitutional rights and
safeguard minors from harm, statutory clarity is urgently
needed.
IV. The District Administration and license-issuing authorities shall
ensure that all Nikah Registrars are fully informed about the
provisions and penal consequences under the ICMRA, 2025. They
must be trained to strictly avoid solemnizing or registering any
marriage involving a minor, as registration of child marriages
deals with the root cause.
V. In the event of a complaint against a Nikah Registrar who
facilitates or registers a child marriage, the Chief Commissioner,
Deputy Commissioner, and Chairman Union Council shall
immediately revoke the license of the concerned Registrar and
initiate criminal proceedings under the ICMRA, 2025 against all
involved parties. It is the legal obligation of all Nikah Registrars
and officiants to thoroughly verify the age and free consent of
both parties before solemnizing a marriage, ensuring that no
minor is subjected to marriage in violation of child protection
laws.
VI. NADRA and relevant marriage registration authorities must
integrate the Birth Registration Certificate into their systems,
ensuring verification of age before issuing a Marriage
Certificate, to prevent the registration of underage marriages.
All birth and marriage records must be accurately recorded in
NADRA s central database. If any inconsistency arises regarding
the age or date of birth, the subsequent marriage document shall
not be issued without a valid Court order or legal verification.
VII. In view of Articles 35 and 37 of the Constitution, which obligate
the State to protect the institution of marriage, the family, the
mother and the child, and to promote social justice and
eradicate social evils, it is strongly recommended that the Federal Government launch a sustained and comprehensive
awareness campaign to educate citizens, public officials, Nikah
Registrars, and community leaders about the harmful
consequences and legal implications of child marriages.
36. In view of the foregoing recommendations, the Office is directed
to transmit copies of this judgment to the Law and Justice Commission
of Pakistan, the Ministry of Law and Justice, the Ministry of Human
Rights, the Ministry of Interior, the Chief Commissioner, Islamabad
Capital Territory, the Director General, NADRA, the Secretary of the
Council of Islamic Ideology, and the Secretaries of the relevant Union
Councils. Additionally, copies shall be sent to all District and Sessions
Judges, Guardian and Family Judges, and Magistrates exercising
jurisdiction under Section 491, Cr.P.C. within the Islamabad Capital
Territory, for their information and necessary compliance.
MH/157/Isl Order accordingly.
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