Federal Shariat Court upholds Sindh child marriage law on minimum age for marriage

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According to report published by Daily Dawn on March 7, 2023, the Federal Shariat Court on 6 March 2023 dismissed a petition challenging the Sindh Child Marriages Restraint Act of 2013, saying that the law was not against the injunctions of Islam. It held that the legislature’s decision to fix a minimum age for marriage was in accordance with injunctions of Islam as laid down in the Holy Quran and Sunnah.

The two-judge bench, comprising Acting Chief Justice Dr Syed Muhammad Anwer and Justice Khadim Hussain M Shaikh, also observed that some of the issues raised in the petitions pertain to social norms, while other aspects require the advice of elected representatives.

The petition was filed by Ali Azhar, who had entered into a marriage with a minor Christian girl in 2020 after she allegedly converted to Islam. The Sindh High Court had ruled that it was not possible for the girl to enter into a legal marriage as her consent had no legal value as she was a minor. The court directed the police to take action against her alleged husband for violating the law.

The law in question prohibits the marriage of any child under the age of 18 years in Sindh and lays down penalties for a male contracting party, the person who solemnises the marriage as well as the parents or guardian concerned.

While relying upon some verses of the Holy Quran and Hadith, the lawyer for Nizar Tanoli, the petitioner, contended that setting the age of 18 years as the minimum legal marriage age, for both men and women, was against the injunctions of Islam.

But Sagheer Ahmed Abbasi, an assistant advocate general for Sindh, argued that the SHC had already dismissed an identical petition last year in the case of Farooq Omar Bhoja versus the State filed against the Child Marriage Restraint Act of 1929. The petitioner had prayed to the court to set 16 years as the minimum marriageable age for girls.

The bench, in its judgement, noted that puberty was only one factor necessary for marriage under Islamic law. Other considerations were financial well-being, health and mental maturity.

“Setting a minimum age for marriage, i.e. an act which is ‘mobah’ (permissible) and not absolutely mandatory (farz) like marriage is in accordance with the injunctions of Islam, because such fixation of minimum age limit provides a reasonable time to girls to complete basic education, which normally helps in developing mental maturity (rushd) in a person,” it added.

The order further stated that as per Islamic law, a wife was supposed to protect the rights, property and honour of her husband while a husband was also bound to do so.

It added: “In the light of principles of goals of Shariah, or Maqasid al Shariah, according to which protection of physical health as well as the mental health of a citizen is the duty of a Muslim state, firstly, under the goal of protection of life of its citizens and, secondly, under the goal of protection of intellect of its citizens. Likewise, to block the means of harm or evil that may be attached to child marriage under the concept of Islamic law called Saad al Dara”.

According to the principle, the state can take steps and set certain minimum thresholds for undertaking an act to protect that person or category of persons, it added. About a contention of the petitioner’s counsel that some aged or poor parents marry off their underage daughters for their well-being, the bench noted that this point can be considered as relevant in some exceptional situations only.

Published in Daily Dawn, March 7th, 2023

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