Girls can marry of their own will: SC

Published December 20, 2003

ISLAMABAD, Dec 19: The Supreme Court on Friday ruled that adult Muslim girls were free to marry of their own free will, adding they did not need to seek the consent of their Wali (guardian) or other relatives.

The Supreme Court’s bench, which reserved its judgment after hearing arguments in two different cases, announced the judgment on Friday.

The three-judge bench, comprising Justice Mian Mohammad Ajmal, Justice Sardar Raza Khan and Justice Karamat Nazir Bhandari, ruled that the Lahore High Court had no jurisdiction to reopen the matter, which had already been decided by the Federal Shariat Court in 1981.

The Supreme Court held that the Federal Shariat Court’s decision, allowing a sui juris Muslim female to marry of her own free will, would remain in the field.

The Lahore High Court, headed by Justice Khalilur Rehman Khan, had sparked a controversy by barring Muslim women from marrying of their own free will. Appeals against the LHC decisions were pending in Supreme Court since 1997.

Justice Karamat Nazir Bhandari, who authored the judgment, ruled that the marriage of Arshad Ahmad and Saima Waheed was valid. The apex court held that the high court had needlessly blown up the issue. “The sole controversy before the high court was whether Mst Saima Waheed was living in Dastak of her free will or not.”

Referring to the Lahore High Court’s conduct in this regard, the Supreme Court observed that it was “inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstones of injunctions of Islam, in proceeding under Section 491 of CrPC (Habeas Corpus).”

About the second case in which Justice Abdul Hafeez Cheema of the LHC had declared that the marriage of Shabina Zafar with Mohammad Iqbal was invalid because of the absence of Wali’s consent, the Supreme Court deprecated the judge’s conduct.

“The out of the way and abnormal course adopted by the learned single judge has raised misgivings, which could have been avoided in the larger interest of fairness, and impartiality of the judiciary.” Shabina Zafar, who had been sent with her parents by the LHC in 1996, after declaring her marriage invalid, has changed her views.

The Supreme Court stated that Shabina Zafar appeared in person, and denied her marriage with Mohammad Iqbal. The apex court held that her marriage was valid, but if the parties wanted to adjudicate “as to the existence and validity of marriage, they are free to approach” the competent court, in accordance with law.

The SC also exonerated Asma Jehangir, former chairman of Human Right Commission of any wrongdoing. Abdul Waheed Ropri had accused Asma Jehangir of kidnapping his daughter, Saima Waheed.

Attorney-General Makhdoom Ali Khan, appearing on court notice, had argued that the Federal Shariat Court had decided the question of requirement of Wali’s consent for valid marriage, and the LHC had no jurisdiction to decide the issue.

He had argued that at least two members of the full bench of the LHC, had “travelled beyond the realm of law and entered the domain of desirability or morality” of the controversy.

The AG had said that judges of the superior court should avoid such exercises.

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