ISLAMABAD, Dec 1: The Supreme Court on Monday reserved its judgment on a set of cases involving a common question: is marriage of a Muslim woman without the consent of her guardian (wali) valid?

The apex court bench, at the start of the proceedings on Monday, asked the counsel representing parties to confine themselves to the narrow controversy: if the high court had the jurisdiction to render a decision on an issue which had already been decided by the Federal Shariat Court in 1981, despite a provision in the Constitution that high courts should not reopen the issue which had been decided by the FSC.

Syed Riazul Hasan Gillani, the counsel representing Hafiz Abdul Waheed Ropri, stated that the issue before the court was of great significance and the apex court should make an authoritative pronouncement whether the consent of the guardian was mandatory for a valid marriage. Marriage, he argued, was not a bilateral but a multilateral contract.

Asked whose opinion would prevail in the case of a dispute between the sui genris girl and her guardian, the counsel argued that the marriage must be solemnized with consensus.

Appeals against the LHC decisions holding that a Muslim woman is not free to marry of her will, and nikha solemnized without the consent of her wali would be invalid had been pending in the Supreme Court since 1997.

The Lahore High Court, headed by Justice Khalilur Rehman Khan, sparked a controversy in the country by holding that a Muslim woman was not at liberty to marry of her free will.

The SC bench, comprising Justice Mian Mohammad Ajmal, Justice Sardar Raza Khan and Justice Karamat Nazir Bhindari, asked the counsel not to go into merits of the case and to address the court on the issue of jurisdiction of the high court to decide a case which had been decided by Federal Shariat Court (FSC) in 1981.

Syed Riazul Hasan Gillani, the counsel representing Hafiz Abdul Waheed Ropri, contended that the Constitution had used four expressions — decision, judgment, finding and order, while explaining the jurisdiction of the FSC.

The counsel argued that only the “decisions” of the FSC were binding on the high courts, while “judgment, findings, and orders” by the FSC were not binding on them.

Justice Karamat Nazir Bhindari observed that the word “decision” is a comprehensive word which included judgment, order and findings.

The counsel said the FSC ruling on the issue of validity of marriage without the consent of wali was its “judgment”, and not a “decision”, and that the Lahore High Court was free to decide the question.

The counsel said that out of five Muslim sects, Jafria and Hanafi are of the opinion that an adult woman has the right to marry of her free will and the consent of her wali is not mandatory. Three other sects — Shafaee, Maliki and Hambali — are of the view that a marriage solemnized without the consent of wali is not valid.

He urged the apex court to decide the issue of validity of a marriage without the consent of the guardian, as it had decided the case about the dissolution of marriage of Muslim couples in 1965.

He said the Supreme Court had decided that a Muslim woman was entitled to get her marriage dissolved if she wanted to end her relationship with her undesirable husband, even though the Hanafi fiqha clearly stated that a Muslim woman was not entitled to get divorce, and it was at the discretion of the Qazi (judge) to announce dissolution, if deemed it fit. The issue of validity of a marriage without the consent of wali should also be decided in the same spirit, he said.

He further argued that the FSC, while declaring that a Muslim woman was entitled to marry of her free will, had not struck down any “codified law” as required under the Constitution, and thus it was open to the high courts to assume jurisdiction.

Justice Karamat Nazir Bhindari observed that if the argument of the counsel was accepted, it would open floodgates and the high courts would reopen all the decided issues on the pretext of not being a “decision”, but a “judgment, order or finding”.

The counsel further argued that the FSC judgment delivered in 1981 was not worth relying on as all the references it had quoted were incorrect.

Justice Karamat Nazir Bhindari observed that if the counsel was so sure that the judgment was based on incorrect references, he should file a review petition before the Federal Shariat Court and seek reversal of the decision.

Syed Iqbal Haider, former attorney general, who represented Asma Jehangir in the case, said that Saima Waheed had been tortured by the appellant, Abdul Waheed Ropri, to dissuade her from marrying a man of her choice.

He said if the court decided to go into the merits of the case, he would inform the court how many laws were violated by the appellant by restricting an adult to marry of her free will.

Justice Karamat Nazir Bhindari said that it seemed that the judges of high court entered into the realm of desirability. He said that we want to fashion Islam according to our customs.

Syed Iqbal Haider stated that if the principle was accepted, then some day some court would justify Karo-kari, marriage with Quran, saying that it was prevalent in society.

He said that Saima Waheed who had married Arshad of her free will had been forced to leave the country, and was living happily with the man of her choice and was mother of two children.

Attorney-General Makhdoom Ali Khan, appearing on a court notice, argued that the judges should not enter into the realm of desirability, and instead confine themselves to legal domain.

The AG argued that distinction created by the counsel between the words — judgment, decision, finding and order — was not valid. He said it was impossible to have a judgment without having a decision. The word decision should be taken into ordinary dictionary meaning, the AG contended.

Makhdoom Ali Khan contended that according to Islamic teachings, marriage is a civil contract between two grown up individuals of the opposite sex.

The AG quoted Allama Muhammad Iqbal from his “Reconstruction of Religious Thought in Islam” as having said: “The teaching of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.”

He further quoted Allam Iqbal as having said: “In the Punjab, everybody knows there have been cases in which Muslim women wishing to get rid of undesirable husbands have been driven to apostasy. Nothing could be more distant from the aims of a missionary religion. In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the people are moving, the law remains stationary.”