Best Case Law On Marriage Topic
P L D 1997 Lahore 301
Before Ihsan-ul-Haq Chaudhry, Malik
Muhammad Qayyum and Khalil-ur-Rehman Ramday, JJ
Hafiz ABDUL WAHEED---Petitioner
Versus
Miss ASMA JEHANGIR and
another---Respondents
Criminal Miscellaneous No.425-H of
1996, decided on 10th March, 1997.
Per Malik Muhammad Qayyum and
Khalil-ur-Rehman Ramday, JJ.; Ihsan-ul-Haa Chaudhry, J. contra--
(a) Muhammadan Law----
--Marriage---Validity---Marriage
contracted by a female without the consent of the Wali, in circumstances, was
not invalid.
Per Ihsan-ul-Haq Chaudhry, J.---
(b) Muhammadan Law-----
----Marriage ---Nikah is Sunnah of
Holy Prophet in Islam.
(c) Muhammadan Law-----
---Marriage---Dower is no
consideration of marriage in Islam.
The dower is no consideration of marriage
in Islam.
The theory that dower was a
consideration for the marriage is otherwise falsified by three basic facts,
namely:--
Firstly, the fixation of dower is
not a necessary requirement of valid marriage and may not be in terms of money
or shape of material things;
secondly, the amount can be enhanced
by mutual agreement and bride can forego the same; and
lastly, but not least, dower can be
deferred, which would be payable after death or dissolution of marriage,
therefore this fact alone is sufficient to discard the view that dower is a
consideration for marriage.
(d) Muhammadan Law---
----Marriage---View that marriage is
simply a contract of sale purchase is not only inhuman but is most disgraceful
and is completely in derogation to teachings of Islam.
(e) Muhammadan Law---
---- Marraige---No marriage without
the consent of the female---Marriage forced on female is not a valid marriage
in accordance with the Injunctions of Islam.
(f) Muhammadan Law---
----Marriage---Denouncement of
marriage by female for want of her consent---If a female wanted to denounce her
marriage for want of her consent, she has to do that within the shortest
possible period from date of Nikah as option of puberty is exercised
immediately on attaining puberty otherwise plea would be rendered doubtful by
delay.
(g) Muhammadan Law---
----Marriage---Mode---Approved mode
followed by Muslims was that man desirous of marrying a girl or woman would
approach her father or the head of the family and after settling the dower the
Nikah would be performed.
(h) Islamic Jurisprudence----
---- Injunctions of Islam ---Hadith
which has been consistently repeated is to be accepted as correct.
(i) Islamic Jurisprudence---
---- Injunctions of
Islam---Difference of opinion on the point amongst Aimma and Foqaha and no
Qur'anic Verse or Hadith or Ijma on the point available---Court can form its
own opinion.
(j) Muslim Family Laws Ordinance
(VIII of 1961)-----
-----S
5.--Marriage---Nikah---Essentials---Assembly at Nikah---Witnesses--purpose---Registration
of Nikah, appointment of Wakil of bride and witnessing by two, persons is
compulsory under S.5 of Muslim Family Laws Ordinance, 1961---Wakil representing
the female cannot be a man from street because he is to perform
Ijab-o-Qabool---Wakil of the female, therefore, has to be one related to female
in the prohibited degree---Witnesses of Nikah if told to keep same secret,
Nikah would be invalid.
A pro forma for Nikah has been
prescribed and registration of Nikah has been made compulsory under section 5
of the Muslim Family Laws Ordinance, 1961. Serial No.7 of column I of the
Nikahnama provides for appointment of Wakil of bride. The same is to be
witnessed by two persons.
The term ' Wakil' has not been
defined in the Ordinance, 1961. The purpose semis to be that as the female is
not to appear in the assembly herself, therefore, she should be represented by
a male. The Wakil generally is representative of the party
appointing/nominating him. A Wakil representing the female cannot be a man from
the street because he is to perform Ijab-o-Qabool (Urdu). Therefore, keeping in
view the Islamic principles and the gene practice prevalent in the society, the
Wakil of the female has to be one related to her in the prohibited degree. It
is normally maternal/paternal uncle, sister's husband, brother, father etc. A
stranger cannot represent a female in Nikah The girl speaks through her Wakil.
This is not a restriction on the females but the purpose is to preserve their
honour. This way it is requirement of her protocol. She is entitled to this
being the honour of two families. This has to be observed for another reason
that it would exclude marriage through duress pressure, compulsion and fraud.
This will be in consonance with the
Islamic principles otherwise the marriage will lose all its sanctity and the
witnesses, Wakil would all be hired/arranged by the Marriage Bureaus.
The assembly is also essential
because Nikah has to be made known. It is improper to keep the same secret and
the declaration is one of the conditions of Nikah because it distinguishes the
same from Zina, therefore, if witnesses of Nikah were told to keep it a secret
then the Nikah becomes invalid.
(k) Muhammadan Law---
-Marriage---Consent of female is a condition
precedent for a valid marriage.
(l) Muhammadan Law---
--Marriage –Girl refusing to marry a
particular person at the instance of her for valid reasons-----Remedy High
Court proposed that the Government should enact law to provide a detailed machinery
in this behalf and in the meanwhile the petitions may be made to the District
Judge of the place where the girl last resided with the parents---Such
procedure can be adopted under the Quetta Declaration issued by the Chief
Justices Committee on 14-8-1991.Satisfactory provision for the institutions
where females and children could be lodged pending the decisions of the Courts
on the matters before them, was also desired by the High Court.
There can be cases where the girl
refuses to marry a particular person at the instance of her Wali for valid
reasons. Then the question would arise as to what is her remedy? The Government
should enact law to provide a detail machinery in this behalf and in the
meanwhile, the petitions may be made tote District Judges of the place where
the girl last resided with the parents. This could be done under the Quetta
Declaration issued by the Chief Justices Committee on 14-8-1991. The relevant
paras. read as under:--
"(2) to ensure that all
citizens, particularly the deprived and unaided sections of the society, become
conscious and assertive of their rights and obligations as guaranteed and
provided by Islam, the Constitution and the Law and in order to achieve this
objective, to provide an efficient machinery at the door-steps so that they can
protect the rights and fulfil the obligations;
(3) to strive for realizing the
objectives set out in the "OBJECTIVES RESOLUTION" as well as in the
"CONSTITUTION" with particular emphasis on Islamic social
justice."
The female or anybody may petition
on her behalf to the District Judge pointing out proposed marriage without her
consent. The District Judge should send for the parties and hear them day to
day till the controversy is resolved and in the interregnum he would lodge the
female in Dar-ul-Aman or allow her to remain with any of the blood relations
falling within the prohibited degree as per her choice. In case the District
Judge is a non-Muslim, the petition shall be entrusted to the senior most
Muslim Additional District Judge. It is not desirable to prescribe a specific
form of such petitions and the District Judge should exercise the parental
jurisdiction keeping in view the facts of the particular case, Shariat and
norms of the Muslim society.
There is no satisfactory arrangement
for lodging females and children particularly during the pendency of Habeas
Corpus petitions and other matters in the High Court, therefore, it is proposed
that the Government may provide for the institutions where females and children
could be lodged pending the decision of the Court matters. Such institutions
should cater not only for boarding and lodging facilities for the inmates but
also for jobs, vocations according to their education and experience. These
institutions should be established at least at the divisional level for the
time being. This is Constitutional duty of Government under Article 35 of
Constitution, 1973.
The Courts at the moment are mainly
relying on Dar-ul-Amat established by Anjuman Himayat-e-Islam. The same is voluntarily
financed therefore, sources at their disposal are limited and they have also to
face criticism from the parallel institutions run privately. It is not safe at
all to lodge a ,female or child in privately managed institution. The
Government should provide for strict supervision of such institutions which,
among other matters should prescribe for reporting as to the arrival of anyone.
in such institution to the Police as well as the District Judge within 24
hours, scrutiny of them accounts and antecedents of the persons connected with
the management of these institutions.
(m) Constitution of Pakistan
(1973)---
----Art. 203-DD-- Judgment of
Federal Shariat Court---Binding nature of Judgment passed in criminal appeal
by the Federal Shariat Court whether binding on High Court---[Minority view].
(n) Islamic Jurisprudence-------
Injunctions of Islam---Rights of
parents in Islam ---bbedience to parents by children---Such rights can be
enforced by the Courts---High Court desired that amendment in the Schedule of
West Pakistan Family Courts Act, 1964 be introduced and in the meanwhile
parents may file petition to the District Judge where they are putting up under
Quetta Declaration to enforce their right against children.
Per Malik Muhammad Oavvum. J.--
(o)
Muhammadan Law---
---- Marriage---Nikah contracted
without consent of Wali by a sui juris Muslim girl would be valid.
(p)
Constitution of Pakistan (1973)---
----Art. 203-GG ---Judgment of
Federal Shariat Court---Binding nature of--Judgment of Federal Shariat Court
is not only binding on High Court but also commands great respect and it
matters little whether the judgment was delivered in the exercise of appellate
or revisional jurisdiction by the Court.--[Precedent].
Per Khalil-ur-Rehman Ramdav, J.--
(q)
Islamic Jurisprudence--
----Faith---Muslims are called upon
to accept Islam in its totality and not just to follow what tastes sweet to
them and to discard what is not to their liking.
(r) Islamic Jurisprudence---
---- Family Laws---Islam not only recognised a female as an
independent legal entity, vested with all legal rights. but also refuted the
false conceptions amongst the earlier societies that it Was EVE (a woman) who
had yielded to the false temptations offered by the serpentine and it was thus
she who was responsible for the fall of man from heavens and consequent
miseries---Islam thus condemned pre-Islamic contemptuous concepts about women
and lifted them to a place of honour and respect.
(s) Islamic Jurisprudence---
---- Family Laws---God created mates
for men from amongst themselves declaring that all men and women were alike and
man had not been made of a superior material than the woman---Man and a woman
may be different from each other in certain aspects but one was not better than
or superior to the other.
(t) Islamic Jurisprudence-
---- Status of woman---Status and the place of woman in
Islam summarized.
The status conferred on the female by Islam is as under:---
(i) woman was granted recognition as
an independent, social and legal entity;
(ii) woman was declared worthy of
the same honour and respect to which a man was entitled;
(iii) it was declared that it was
not the woman alone who was responsible for the man's fall from heaven but it
was both, the woman and the man who had fallen a prey to the deceit of SATAN;
(iv) woman was permitted the same
social and legal status which was due to a man except in certain specified
spheres which distinction had been created by ALLAH not to lower the prestige
of a woman but for the smooth and proper running of the society, and finally
that
(v) woman had same rights to acquire, hold and enjoy
property as a man possessed.
(u)
Islamic Jurisprudence---
---- Faith---Once God has ordained a
matter then one must unquestioningly submit to His will.
(v)
Islamic Jurisprudence---
----
Family Laws---To avoid unpleasant consequences Islam has placed emphasis on the
matter of unbridled inter-action between the two sexes which stand bestowed
with physical attraction for each other.
(w)
Islamic Jurisprudence-
---- Family Laws---Islam mandates to
eliminate all possibilities which could attract men to women and women to men
who were not married to each other--Any courtship or romantic affairs between man
and woman other than between the one married to each other are not permitted in
Islam---Making secret love affairs and taking paramours is a conduct condemned
and prohibited by Islam.
The
intention of ALLAH and consequently of His PROPHET (S.A.W.) appears to be to
eliminate all possibilities which could attract men to women and women to men
who were not married to each other.
Allah
and His Prophet (S.A.W.) abhor any liaison between men -and women except
between the legally wedded spouses or between the ones in the prohibited degree
and of course the children and the ones who are too old. The logical conclusion
would obviously be that pre-marital and extra-marital liaisons between men and
women stand prohibited and banished in an Islamic set-up. Thus, any courtship
or romantic affairs between a man and woman other than between the ones married
to each other, are not permitted in ISLAM. [p. 369] CC
Making
secret love affairs and taking paramours is a conduct condemned and prohibited
by Allah.
(x)
Islamic Jurisprudence---
---- Family Laws---In the matter of
obligation that Islam casts on individuals, one's obligations and one's gentle
and kind conduct towards one's parents stands placed immediately after the
command to worship God and none other than Him.
(y)
Constitution of Pakistan (1973)---
----Art. 203-GG ---Decision of
Federal Shariat Court---Binding nature of--Judgments of Federal Shariat Court
are binding on High Court.--[Precedent].
(z)
Islamic Jurisprudence---
---- Status of woman---Obligations
of women going outdoor outlined in the light of Holy Qur'an.
The position obtaining from revelations of God is as
under:---
(a) The females should ordinarily stay indoors;
(b) if a woman needs to go outdoors then she must. extend
her veil over her face; must cover her chest and should not indulge in any act
which could attract men, and that,
(c) if it becomes inevitable for her
to talk to a man then she should not talk in a mild and a pliable tone and
further that if someone needs to ask her for something then she should talk to
the man from behind a screen or a veil.
(aa)
Islamic Jurisprudence---
---- Family system---Islam grants recognition to the family
system and the respect and importance attached thereto.
(bb) Muhammadan Law---
----Marriage---Division amongst the Aimmah, the jurists and
the scholars of Umma on the issue as to whether a marriage contracted by a
female otherwise than through her Wali (guardian) was or was not valid in terms
of the Islamic command summarised.
There
is a division amongst the AIMMAH, the Jurists and the Scholars of the UMMAH
(the Muslims) on the issue in question as a result of which the veracity or
soundness of the AHADITH in question becomes hazy and open to doubt. [p. 379]
HH
The position which emerges is
that:---
(i) MALIKIS, SHAFES and HAMBALS find
that the marriages of the type in question, without WALIS, are void;
(ii) HANAFIS and SHIAS hold just the
opposite view;
(iii) according to view mentioned at
(ii) above such a marriage is void but if cohabitation takes place then
proportionate dower has to be paid and the two are not guilty of fornication.
If marriage was void then why dower?
(iv) then there are other Jurists
and Scholars who declare that a marriage without a WALI is not void if
contracted with a KUFW and with adequate dower money;
(v) HAZRAT UMER (R.A.) only punished
the girl but -there is no evidence that he annulled the marriage;
(vi) HAZRAT ALI (R.A.) also did not
annul the marriage without a WALI where it had been consummated;
(vii) the Federal Shariat Court does
not consider such a marriage as void and finally, that.
(viii) the authenticity of the AHADITH in
question is in serious doubt. [p. 378] GG
(cc)
Muhammadan Law---
----Marriage---Invalidating a
marriage by Court ---Consequences---Conditions--Caution.
Invalidating
a marriage entails rather serious and even penal consequences not only for the
wife and the husband but even for the innocent children born out of such a
union. Such a declaration could, therefore, not be given unless material was
available which was of an unimpeachable character admitting of no doubt.
(dd)
Muhammadan Law---
----Marriage---Consent of the man
and the woman who are getting married is an indispensable condition for the
validity of a marriage ---Wali has no right to grant such a consent on behalf
of the woman without her approval. [p. 381] MM
(ee)
Muhammadan Law---
----Marriage---Secret marriage is
forbidden in Islam.
Islam
abhors establishment of liaison between men and women and court-ships,
pre-marital relationships, secret friendships and secret marriages are
forbidden in Islam.
(ff)
Muhammadan Law---
----Marriage---Concept of a young
girl or a boy venturing out in search of a spouse is alien to the teachings of
Islam.
(gg)
Muhammadan Law---
----Marriage---Search for marriage
partner---Notifying the requirements and preferences to the agents who look for
the required items in light of Islamic Injunctions and the established social
and moral norms of the society, was approved as ideal scheme for choosing
marriage partners.
(hh)
Constitution of Pakistan (1973)---
----Art. 199---Muhammadan Law---Marriage---Constitutional
jurisdiction--Grant of discretionary relief---Conditions---Persons having
acted in a mannei not honourable or having acted in breach of the established
social norms of the society, disentitled themselves to any relief in equity---Man
and woman having entered into secret marriage and having left their homes to
the surprise of their parents, were ones who had contravened the wishes of God;
offended their parents and families and had violated the established values of
the society and thus were not worthy of any relief in equity.
Discretionary relief in
equity is available only to those who approach a Court of Law with clean hands.
Persons having acted in breach of the established social and moral norms of the
society, disentitle themselves to any relief in equity. The persons who are
parties to the kind of marriages which are in question, are ones who have
contravened the wishes of ALLAH; who have offended their parents and families
and who have violated the established values of the society. It is, therefore,
declared that such-like persons are not worthy of any relief in equity.
(ii)
Muhammadan Law---
----Marriage---Failure of parents or
the elders of the family to discharge their obligations in lpoking for marriage
partners for their children or intentionally avoiding same for ulterior
motives---Remedy for children outlined.
There may be cases where the parents
or the elders of the family have either failed to discharge their obligations
in the matter of looking for marriage partners for their children or are
intentionally avoiding it for ulterior motives. In such a case, any such child
shall have a right to approach the competent Court complaining of this inaction
on the part of his/her parents etc. and if the Court finds that the elders etc.
are in default, then the Court shall grant a certificate to that effect where
after no blame shall lie on such a person if he or she gets married, of his or
her own accord.
(jj)
Muhammadan Law---
----Marriage---Dispute between Wali and the child in the
matter of choice of spouse---Remedy for children outlined.
In case of a dispute between the WALI and the
child, in the matter of the choice of a spouse, the QAZI (Court of Law) can be
approached who shall then resolve the issue. It will, therefore, be open to a
person, if his or her parents do not accept the choice made by him or her
having acted not in breach of social or religious values,. to approach a Court
of Law for the settlement of such dispute.
(kk)
Muhammadan Law---
----Marriage---Giving a girl in marriage to
someone and taking a girl in return and giving daughters and sisters etc. in
marriage for money are condemned by Islam---Remedy for such girls outlined.
The menace of SHIGHAAR' (giving a girl in marriage to
someone and taking a girl in return) and the menace 'of giving daughters and
sisters etc. in marriage for money, are rampant in certain sections of our
society. ALLAH condemns such-like practices. Any girl who is being forced into
such a marriage shall also have right to approach a Court of Law to seek
protection and if the Court finds that the girl is being bartered away, then
the Court shall pass necessary orders including an order absolving the girl
from her obligation towards such-like parents and elders etc.
(11) Muhammadan Law---
----Marriage---Parents or the family are not absolutely
aliens to the institution o marriage.
(mm) Muhammadan Law---
----Marriage---Marriage on momentary impulses or
incompatible marriage-Validity---Boy or girl, in matter of marriage acting on
sheer momentary impulses or in case of incompatible marriages which decisions
are patently not in their interest and which are also a cause for shame and
disgrace to the whole family---Annulment of such marriages by competent
Court---Aggrieved person viz. the parents, in their absence, the brothers and
in their absence, any on falling within the prohibited degree of the concerned
girl as prescribed by Islam can initiate proceedings in the competent Court
seeking annulment of such ; marriage ---Law permits rescission of contracts
which are against law, against morality and against public policy etc.---High
Court directed that till such time that Legislature moves in the matter,
remedies provided by the High Court shall lie before the Family. Courts and the
decision and the orders passed in such proceedings or as a result of the same
shall be subject to appeals etc. as if they were orders and judgments etc.
passed by the Family Courts in exercise of the jurisdiction conferred on them
under the West Pakistan Family Courts Act 1964.
There
are cases where the boy or the girl act on sheer momentary impulses which
decisions are 'patently not in their interest and which are also cause for
shame and disgrace to the whole family. In such a situation, the aggrieved
person shall have a right to initiate proceedings in the competent Court
seeking annulment of such a marriage. The Court shall then have the power to
annul a marriage if after hearing all concerned; after taking 'into account the
wishes of the family and after considering all the attending facts and
circumstances, in the exercise of its parental jurisdiction, it finds that it
shall be in the interest. of all concerned if the marriage in question was not
permitted to continue. The aggrieved person, for the purposes of these
proceedings, shah mean the parents; in their absence, the brothers and in their
absence, any one falling within the prohibited degree of the concerned girl as
prescribed by Islam
Law permits rescission of contracts
which are against law, against morality and against public policy etc.
Marriage
can also be dissolved on account of incompatibility of the parties, which will
eliminate cases where aggrieved persons, finding no remedy, resort to extreme
measures by taking law into their hands.
Till
such time that the Legislature moves in the matter, the remedies that have been
made available, in the larger public interest of the society, shall lie before
the Family Courts of the concerned areas and the decision and the orders etc.
passed in these proceedings or as a result of the same shall be subject to
appeals etc. as if they were orders and judgments etc. passed by the Family
Courts in exercise of the jurisdiction conferred on them under the West
Pakistan Family Courts Act, 1964.
(nn)
Muhammadan Law---
----Marriage---Pre-marital or
extra-marital liaisons, court-ships, secret friendships and secret marriages
being offensive to the commands of Islam and also major sources of serious
crime in the society, High Court recommended that the Executive and the
Legislature examine the desirability of enacting laws to take care of such
menace and to provide remedies suggested by High Court--Legislature has also
been desired to consider the advisability of making such-like immoral
relationship and secret marriage etc. a penal offence.
[Verses
of Holy Qur'an, Ahadith, Reference Books
and
Case-law. extensively cited]
Malik
M. Nawaz, Rao Nasim Hyder Khan, Syed Riaz-ul-Hassan Gilani and Miss Iram Nazir
Ahmad for Petitioner.
Dr.
A. Basit, Abid Saqi, Salman Akram Raja, M. Khalid Ishaq, Nazir Ahmad Ghazi and
Aushtar Ausaf Ali for Respondents.
Dates
of hearing: 1st, 8th, 10th, 14th July; 22nd, 25th, 29th, 30th September; 1st,
2nd, 7th, 8th, 9th, 13th, 14th,.15th, 20th, 21st, 22nd, 23rd October, 1996.
JUDGMENT
IHSAN-UL-HAQ
CHAUDHRY, J.--It is proposed to decide Criminal
Miscellaneous No.425/W of 1996 filed by Hafiz Abdul Waheed on 18-4-1996,
Criminal Miscellaneous No. 435-H of 1996 habeas corups petition and Writ
Petition No.6484 of 1996 by Saima Waheed under Articles 9, 10, 11 and 15 of the
Constitution of Islamic Republic of Pakistan, 1973. During the pendency of
these petitions the Hon'ble Chief Justice also referred Writ Petitions Nos.2620/96,
7514/96, 8288/96, 6063/96, 11513/96 and 8912 of 1996 involving the same legal
controversy. The same, therefore, were taken up together and are being decided
through common judgment.
2. The brief background as ascertained from the arguments
and petitions is that Mst. Saima Waheed was a student of 4th year in Government
Lahore College for Women. She allegedly contracted marriage on 26-2-1996 with
Muhammad Arshad, who was a tutor of her brother. The petitioner Abdul Waheed,
her father, came to know of this secret marriage on 9-3-1996. He approached the
father and other family members of Muhammad Arshad Nikahnama was returned to
him with the note that no Nikah was performed in any case same is not
subsisting and stands cancelled. The detenue continued living with her father
till 9-4-1996 when she was allegedly abducted and family came to know on
11-4-1996 that she was being detained in the ' Dastak” managed by respondent
No. l and they started negotiation for release of detenue. Respondent No.2
feeling that failure of his scheme is evident proceeded to file Criminal
Miscellaneous 393-H of 1996 on 14-4-1996 for her release f Dastak but it was
dismissed on 16-4-1996.
Criminal
Miscellaneous by the father came up for hearing 18-4-1996 when the Bailiff was deputed
to recover the detenue for production this Court. The order was complied. In
the meanwhile, the remaining petitions were filed. The detenue was lodged
initially in Dar-ul-Aman but order, dated 22-4-1996 she was allowed to live in
' Dastak' . Thereafter, some arguments were heard and learned counsel for the
father of girl raised, inter following questions that:---
(i) Whether the parents have a right to be
obeyed and their right obedience
is judicially enforceable? '.
(ii)
Whether marriage in Islam is a civil
contract? and
(iii) Whether or not the permission of Wali is one of the main condition
a valid Nikah?
In view of these important issues
involved the matter was referred to the Hon’able Chief Justice for constituting
a Larger Bench and in this background this Bench was constituted.
3.
Malik Muhammad Nawaz, Advocate argued that ?.virgin girl step out of her house
without the consent of the parents can be asked to go back added that at the
moment in Islamic countries clash of two civilizations is c prominent because
some negligible number of Muslims are playing the assigned to them by the
vested interest from the west. The purpose is to s: foundation of Muslim
Society and introduce, in the words of Dr. Al Muhammad Iqbal in Guftar-e-Iqbal by
Mr. Muhammad Rafique Afzal, moralless society . He in this behalf proceeded to
rely on The Holy Qur'an, Islah-e-Inqlabe Ummat by Maulana Ashraf Ali Thanvi
Volume II, Seerat-un-Nabi (Life of The Holy Prophet, peace be upon him) M/s.
Allama Shibli Naumani (R.H.) and Maulana Sayed Suleman Nadvi (R.H.) Vol. VI,
Nuzhat-ul-Aula ( yU~l.'r ). Tafseer Ibne Kaseer (urdu) translated by Allarna
Muhammad Mamen Juna Gaddhi (R.H.), Vol. I Khirj- ul- Malki Sahi bokhari Sharif by Abu Abdullah Muhammad
Bin Islami Bokhari (R.H.), Vol. III, Muqadi Ibne Khaldoon by Allama Abdul
Rehman Ibne Khaldoon Almaghrabi (R Alauza-ul-Tashria by Almhami Subihee
Mahamsani and Holy Bible. The learned counsel in support of his arguments
referred to Sura-e-Ahzaab 6.33, Sura-e-Al Baqra 2.221, Sura-e-Alnoor 32.24,
Sura-e-Al Baqra 2.232, Sura-e-Alqassas 27.28. He referred to authentic
translations and commentaries on The Holy Book and also number of Ahadith in
support of his contentions. The learned counsel also submitted detailed written
arguments, with reference to verses of The Holy Qur'an, Ahadith Sharif and
reference to different textbooks, wherein he discussed the verses of The Holy
Qur'an, Ahadith and opinion of Jurists.
4.
Mr. Riaz-ul-Hassan Gilani, Advocate adopting the arguments added that children
are under the obligation to obey their parents. The learned counsel in this
behalf referred to Sura-e-Luqman 31.14, Sura-e-Ankaboot 29.8. He referred to
the explanation of Imam Fakhr-ud-Din Razi for interpretation of word ' Ehsan' (
~)l.•-I) which meant obedience with heart and soul, and Hadith Sharif Nos. 915,
916 and 917 of Sahi Bokhari Sharif, Volume III. He added that the orders of
parents are judicially enforceable. He further referred to Imam Ghazali, who
stated that the order should not be mala fide and also referred to
Mizaq-ul-Aarifeen by Imam Muhammad Ghazali (R.H.), Vol. II, Rights of Parents
and Children, Tashreeh Imam-ul-Hajri by Imam Hajar Askalani (R.H.) and Sunnan
Ibne Maaja Sharif by Imam Abu Abdullah Muhammad 'Bin Yazeed Ibne Maaja (R. H.),
Vol. II Hadith No. 2290.
5.
Syed Riaz-ul-Hassan Gilani, Advocate on the second point argued that marriage
in Islam is not a civil contract and is one of the Ibadat ( vhls ) and at the
best may be called social contract (compact). He referred to Mst. Khurshid Bibi
v. Baboo Muhammad Amin (PLD 1967 SC 97). He submitted that this theory of civil
contract is result of superficial .approach to the teachings of Islam. He, in
this behalf, referred to cases of Abbas Ali v. Karim Bakhsh (1909) 4 IC 466),
Abdul Qadir v. Salima (1886 ILR 8 Allahabad 149) and Saburannessa v. Sabdu
Sheikh and others (AIR 1934 Calcutta 693). The learned counsel explained that
before the promulgation of Shariat Act of 1936, the Muslim marriage unlike
Hindu and Christian was not enforceable and the Courts enforced it as a civil
contract but religious scholars like Maulana Ashraf Ali Thanvi in his book
Islah-e-Inqlabe Ummat, Volume II condemned it in the strongest possible words.
It was argued that after came into being Independence, Shariat was not given
effect as complete way of life for the Muslims. This theory of civil contract
remained somewhat alive. He submitted that in Christians marriage can only be
performed through Church and the same cannot be dissolved by. anyone except the
church. This was in order to dilute the effect of this strict mode that the
second specie common law marriage came into existence. Where male and female
would appear before Court/Registrar denounce their religion's allegiance and
claim that according to their religion there is restriction on their marriage.
The Court would grant the permission. This type of marriage could be dissolved
only by common law Courts. It was emphasised that in both types of marriages
there were three parties. In the first type, Church, male and female while in
the other type State, male and female were the three parties. It was argued
that the 'marriage' is a French word derived from marri. In this behalf, he
referred to Words and Phrases dictionary meanings of word 'marriage' and in
this behalf also referred to judgment reported as 47 LRA 467. On the either
hand, in Islam Nikah means to bind or
unite.. If, looked from this angle then it unites two fan besides two persons.
6.
It was explained that the dower is not a consideration for marriage the same
was wrongly treated as such in the above cases and even in some o Courts'
judgments. It was submitted that the dower finds mention in Sure and it is
stated to carry meanings of Nehla which
means some given as gift of free-will to the wife. The learned counsel argued
that acceptance by the spouses will not make the marriage a simple contract.
The learned counsel in this behalf referred to Encyclopaedia of Religion and
Ethics by James Hastings Volume V. The Age of Faith by Will Durant,
Alauza-ul-Tashria by Alamahami Subihee
Mahmsani Bab ul -Sadaq .( V!Zdju ) in Mishkat-ul-Masabih Urdu translation by
Maulana Muhammad Sadiq Khalil, Durr-ul-Mukhta Muhammad Ala-ud-Din translated by
B.M. Dayal, Islamic Family Law by Chibli Mallat & Jane Connors, Muslim
Personal Law and Judiciary by Muhammad Shabbir, Chapter of dower in Mahomedan
Jurisprudence by Abdul Rahim and American Society by Robin M. Williams, Jr. It
was argued that it was clear from the above books that Nikah in Islam is not a
social cot as interpreted and understood in some of judgments without an effort
being made to find out the real status of Nikah.
7.
It was argued that Nikah without the consent of the Wali is not valid this
behalf, reliance is placed on Sura-e-Al Baqra 2.232 and 2.221 which w be
reproduced in the latter part of this judgment. Thereafter, he referred
following four commands of The Holy Prophet (peace be upon him):
it was explained that as far Hadith No.l is
concerned there was no dispute amongst the companions of The Holy Prophet
(peace be upon him) Sahaba Karam (R. Z. A.)
and even thereafter. The same is the position of Muhaddaseen (R.H.) . It
was argued that the period can be divided into three phases, namely---
(a) from the life of The Holy Prophet (peace be upon him);
(b) from Hidaya and Fatwa Alamgiri to Shah Wali Allah; ,
and
(c) period starting with Hazrat Shah Wali Allah up to
present time.
It
was added that it has wrongly been attributed to Imam. Abu Hanifa that Nikah
without the consent of the Wall is valid. It was explained that Imam Abu Hanifa
has not written any book by himself and his views were not recorded in any of
the authentic book written by his pupils or contemporaries.
8.
The learned counsel for the petitioner argued that the judgment of Federal
Shariat Court in Muhammad Imtiaz and another (supra) is not binding on this
Court because the same has been rendered in a criminal appeal directed against
the judgment of Additional Sessions Judge, Attock. It was added that it seems
the Federal Shariat Court based its judgment on some written papers rather than
after referring to the original books tabulated in para. 24 of the judgment. In
this behalf, it was pointed out that in Fateh-ul-Bari the translation of the
text is that there were arrangements for marriage while in the other cases the
mother had married her daughter and not the daughter has contracted marriage
herself. There was no effort to find out the correctness of the view allegedly
attributed to Imam Abu Hanifa. .It was added that Verse of Holy Qur'an and
other three Ahadith were completely lost sight of the fact. It was added that
the Federal Shariat Court ignored the centuries old Islamic tradition that
marriage is not only union between two individuals but of two families and it
was always the head of the family who arranged for the marriage of the
children. It was argued that the guideline for Qazi as is clear from the letter
written by Hazrat Umar (R.Z.A.) to Qazi; the first comes the Orders of the
Almighty God as contained in the Noble Qur'an then Shariah and thereafter,
accepted norms in the Society. It was submitted that it is a matter of common
knowledge that runaway marriages are not solemnised in accordance with the
principles of Islam. There is even no proper Nikah because no Nikahkhawan is
prepared to perform the Nikah ceremony, no Registrar is prepared to register
Nikah, no person is willing to witness the same and show his participation
because they are all afraid of being involved in a case under Offence of Zina
(Enforcement of Hudood) Ordinance, 1979.
9.
The runaway marriages offend all norms of a Muslim society beginning to end.
The proposition would become clear from answer to the question how a girl would
arrange her marriage? There cannot be any other mode but of freely mixing with
males and then selecting one of them as future husband. This way of like is not
permitted lather than even encouraged by any fiqa or school of thought because
it is against basic teachings of Islam that the people from boot sexes should
not have free access to each other. In other words the beginning is tot
commendable. Then coming to the marriage. The universally accepted principle is
that it should be made known and announced. The Nikah ceremony. Walima and
giving of dowry are means adopted by people to make the marriage known. On the
other hand, runaway marriage is always kept secret. We have already noted the
manner in which it is usually performed No proper Nikah even takes place.
10. It was argued that history tells us that pre-Islamic
civilizations were authoritarian in pattern but the Islam brought democratic
pattern in the family as well as the Society. He referred to ' Azwaaj' by Ahmad
Bin Ali Bin Hajar Almakki, Volume II. It is argued that parents have right to
be obeyed and their rights arc judicially
enforceable provided ---(i) their order is not repugnant to Shariah and
they do not ask for Shirk; and (ii) it is not mala fide. The learned counsel in
this behalf referred to Hadith Sharif No. 2290, as recorded in Sunnan
Ibn-e-Maaja Sharif. The learned counsel also referred to following Verse of The
Holy Book:
(1) Sura-e-Al Tehreem Verse Nos. 6 and 7
(2) Sura-e-Bani Israeel Verse Nos. 23 to 25
(3) Sura-e-Kahaf Verse
Nos. 15 to 17
(4) Sura-e-Luqman Verse
No. 31.14
(5) Sura-e-Inaam Verse
No. 2.151
Thereafter, he referred to Mishkat
Sharif, Volume IV, page 23.
11.
The learned counsel stated that Nikah by the family of the bride is not only in
Islam but also recognized and practised in other religions. He in this behalf
referred to American Society by Robin M. Williams, Jr. He submitted that for
lawful Nikah following are the conditions that:---
(a) Aijabo Qabool ( J-pj-$ In, L„f I ) made in
the assembly convened by the family of the girl;
.(b) for lawful Nikah permission of the Wali and
consent of the girl are two essential
elements; and
(c) the contracting party is Wali and not the
girl herself.
He argued that according to Shia,
Imam Abu Hanifa is said to have differed from the other Imams on this point but
argued with force that the view attributed to Imam Abu Hanifa is not authentic.
There is nothing coming from any authentic and original source to prove imam
Abu Hanifa having said so.
12.
:t was argued that it is clear from verse 2.232 that the Wali. was restrained
from not standing in the way of woman remarrying previous husband. Ammar Bin
Yasir and Maaqal Bin Yasar said that this verse related to them. In Tafseer
Ibne Kaseer (Urdu), it has been explained that Wali has been stopped. It vas,
therefore, argued that it was not a permission to woman to marry of her own
freewill. This clearly was an exception to the rule that Wali is to arrange for
the marriage of his dependent females The word Wali has been used to Noble
Qur'an at numerous places including Sura-e-Kahf, Sura-e-Yousaf and
Sura-e-Shoora, etc. It carries different meanings in the context. In
Sura-e-Kahf, Wali has been used as person looking after the welfare. According
to the Durrul-Mukhtar by Muhammad Ala-ud-Din Haskafi, the Wali literally means
opposite of enemy. It was argued that these Ahadith were proved authentic from
several sources. In this behalf, reference was made to Sunnan Ibne Maaja
Sharif, Tirmazi Sharif and Sunnan Abu Dawood Sharif. It was added that in the
absence of Wali Sultan would be her Wali. The Nikah was explained by Imam Hafiz
Abi Abdullah Hakim Alnishapuri in his book Almustadrak Maa al Takhlees. It was
argued that the same was the expression in Neel ul Autar. The literal means are
to connect different views. It was added that it is clear from these textbooks
that there is a complete unity of views (Ijma) of Sahaba Kiram (R.Z.A.) on this point.
13.
The learned counsel thereafter referred to Hanafi Jurists. He in the first
instance referred to Sharah Maani-al-Aasar by Imam Abi Jafar, Ahmad Bin
Muhammad Bin Salaamah Bin Abdul Mulk Bin Salamaah A1 Azdi, a known jurist as
well as Muhaddis, who with reference to Hazrat Aisha and Abu Musa stated that
woman cannot perform her Nikah. 'I he ceremony is to lie arranged by a male and
beside these reliance was again placed on Sura-e-Al baqra 2.232 to hold that
Nikah of a female is the duty of the Wali. Thereafter, he referred to
Nasab-ul-Raiya by Allama jamal-ud-Din and Alsunnan-ul-Kubra. He argued that
Federal Shariat Court has wrongly referred in para. 18 of its judgment to
marriage of girl, in fact the marriage was performed by her mother. The learned
counsel thereafter referred to sunnan Dar Quatni by Imaam-ul-Kabir Ali Bin Umar
Dar Quatni, Tohfat-ul-Ahwazi by Hafiz Abdul Rehman Azhar, Moota Imam Muhammad
and Sahi Sunnah Tirmazi by Muhammad Nasiruddin Albani, Volume I.
14.
It was argued that the .girl after attaining majority is master of her property
but as far Nikah was concerned the same is subject to consent of Wali. It was
argued that the Islam is a natural religion and the unmarried girls are deemed
to be under the protection of Wall in the matters of Nikah for the reason that
all possible conceivable modes, which may result in Nikah by the female
herself, are against decency arid against accepted norms of Islamic Society.
15. The learned counsel thereafter
referrer to Fuqha to show that even amogstt Fuqha for most of the period there
was no dissection. It was submitted that Imam Abu Hanifa, who died in 150
Hijri, did not write any book himself. The works of Imam Abu Hanifa were
reduced into writing by Imam Abu Yousaf and Imam Muhammad Shaibani. Imam Abu
Yousaf left no writing on this subject while the book by Imam Muhammad Shaibani
(died in 189 A.H.) is known as Moota Imam Muhammad, which clearly referred to
the above Hadith. The learned counsel in this behalf has referred to Moota Imam
Muhammad and Aiqaz Hambrao-Ulil-Absaar by Imam Saleh Bin Muhammad. He added
that on the one hand this Haidth has been denied by some of the writers but on
the other hand, they have quoted Imam Abu Yousaf saying that the Nikah outside
Khffaw is invalid. He added that this cuts at the root of the criticism that
Hadith is not authentic. The second period starts with Fatawa-i-Karee Khan and
Fatwa-i-Alamgiri when reference was made to certain persons to deny the
existence of Hadith No. l but neither there is any writing to this effect nor
they could otherwise support their
views with any Sanad . The third period started with Shah Wali Alah Muhaddis
Dehlvi, Anwar Shah Kashmiri, Abul Hassan Ali Nadvi and Maulana Maudoodi,. They
by and large reverted to the view prevalent in first period. The learned
counsel in this behalf referred to Hujjat-ul-Allah Albaligha by Hazrat Imam
Shah Wali Allah (R.H.), Volume II, Fatawa-i-Alamgiria, Volume IL, Muasharti
Massail Din-e-Fitrit Ki Roshni Main by Maulana Muhammad. Burhannuddin Sunbhli
and Rasail-o-Masail by Maulana Abul Ala Maudoodi, Volume II.
16.
The learned counsel referred to Kanz-ul-Daqaiq by Maulana Abdullah, who died in
710 A.H. and Tafseer-ul-Haqaiq by Fakhar-ud-Din Zaili, who died in 743 A. H.
The right of the female to contract marriage has been justified with reference
to her right to enter into agreement to sell and purchase property. It was
argued that justification is too superficial, ignore norms of Muslim Society
and nature of women. Then he referred to Mazzaq-ul-Arifin by Imam Muhammad
Ghazali, who died in 500 A.H. and Ghuniat-ul-Talibeen by Sheikh Abdul Qadir
Jillani, where the conditions of valid Nikah have been noted. It was argued
that the Court can follow jurists, who have given weighty reasons in support of
their views or rules relating to social set-up. In this behalf, he has referred
to Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) and Iqbal Hussain
v. Deputy Commissioner/Collector, Lahore and 3 others (PLD 1995 Lahore 381).
The learned counsel thereafter reverted back to order, which could be passed by
a Court to compell female to join parents. He submitted that these are
reformative measures and follow as under:--
(1)
Sura-e-Nisa 4.15
(2)
Sura-e-Noor 24.2
(3) Al-Kashaf by Mahmood Bin Umar Alz Makhshri
Alkhawaruzmi
(4) Tafseer-ul-Kabir by Alfakhar-ul-Razi
(5) Islam Ka Nizam-e-Iffat-o-Asmat by Maulana
Muhammad Zafeer-ud-Din
(6) Islam and Family Planning by Shaikh Muhammad
Mahdi Shamsuddin
(7) Shariat-e-Islam Main Aurat Aur Mard Ka Rutba in
' Guftar-e-Iqbal' by
Muhammad Rafiq Afzal
(8) An
Introduction to Islamic Law by Jospeh Schacht
(9) Kitab-ul-Fiqa by Allama Aljaziri.
17. The learned counsel for the petitioner argued
with reference to Sura-e-
Nisa 4.15 and Sura-e-Noor 24.2 that
the Islam permits reformative measures and compelling the girls to join their
parents. He proceeded to refer to Al-Kashaf by Imam Alz Makhshri, Tafseer
Baizvi, Tafseer-ul-Kabir by Imam Fakhr-ud-Din Razi, Islamic System of Chastity
by Ch. Muhammad Zafar-ud-Din, Islam and Family Planning, Vol. I, Guftar-e-Iqbal
(collection of speeches by late Dr. Allama Muhammad Iqbal), An Introduction to
Islamic Law by Joseph Schacht and Kitab-ul-Fiqa by Allama Aljaziri.
18. On the other hand, respondent
No. l argued with reference to Article 199 of the Constitution of Islamic
Republic of Pakistan and section 491, Cr.P.C. She referred to PLD 1970 SC 323,
1970 SCMR 437, PLD 1972 SC 6, 1972 SCMR 398, 1973 SCMR 189, 1973 SCMR 577, PLD
1976 SC 298, 1987 SCMR 905., 1975 PCr.LJ 472, 1975 P.Cr.LI 1049, 1977 P Cr.LJ
17, PLD 1978 Kar. 374, PLJ 1979 Cr C. Kar. 362, 1987 MLD 1549, 1988 MLD 1822,
1995 PCr.LJ 2085, PLD 1962 (WP) Kar. 725, PLD 1962 (W.P). Kar. 442, PLD 1965
Dacca 553, 1968 PCr:LJ 1785, 1971 PCr.L1 489, 1971 PCr.L1 38, 1971 PCr.L1 523,
PLD 1971 Lah. 139, 1972 PCr.LJ 586, 1971 PCr.LJ 640, 1973 PCr.L1 61, 1973
PCr.LJ 79, 1973 PCr.LJ 559, 1973 PCr.LJ 1012, PLD 1975 Lah. 234, 1976 PCr.LJ
1447, PLD 1980 Lah. 350, PLD 1982 B.J. 74, 1984 MLD 1443, 1985 PCr.LJ 1560,
1984 PCr.LJ 2908, 1985 MLD 485, 1986 PCr.LJ 861, 1986 PCr.LJ 1404, 1986 PCr.L1
2269, 1986 MLD 2490, 1987 CLC 1496, 1987 MLD 2595, 1988 PCr.LJ 898, 1988 MLD
44, 1989 PCr.L1 1717; 1995 MLD 1507 to contend that the superior Courts have
normally permitted the girl sui juris to have her own way. She, however, added
that in the cases reported as PLD 1962 Karachi 725, PLD 1965 Dacca 553, 1968
PCr.LJ 1578, PLD 1972 Lah. 809, 1975 PCr.LJ 1444, 1977 PCr.LJ 499, PLD 1971
Lah. 128, PLD 1971 Lah. 343, PLD 1973 Lah. 591, 1984 PCr.LJ 755, 1984 PCr.L1
2977, PLD 1995 Lah. 364 and 1968 PCr.LJ 1758, a different view was taken but
this was mostly on account of the girl being minor or there being no Nikahnama
or more than one Nikahnamas. It was maintained that normally the Courts have
allowed female detenue to have her own way. This is the rule. It was argued
that restraint on movements of females against their will is unconstitutional
and would result in violation of Articles 10, 11, 14, 15, 20 and 25. She
submitted that the fundamental rights should not be violated. In this behalf,
she has referred to 1983 SCMR 1718, PLD 1993 SC 901, PLD 1992 SC 595, 1994 SCMR
681 and PLD 1993 SC 456. Thereafter she referred to the speech of Qauid-e-Azam
Muhammad Ali Jinnah (R.H.) on Hindu Child Marriage Bill in 1929 in the
Legislative Assembly and referred to the provisions of Muslim Family Laws
Ordinance, 1961 to maintain that there is nothing as to Wali: She also referred
to report of Ahtasham-ul-Haq Thanvi, Member Commission on Marriage. She also
referred the Code of Muslim Personal Laws, Volume I by Dr. Tanzil-ur-Rehman to
argue that -a major Muslim male or female can marry without intervention of the
guardian. Thereafter, she referred to the Dictionary of Islam by Thomas Patrick
Hughes; according to which the marriage is simply a civil contract. She also
referred to Durr-ul-Mukhtar where it is recorded that the consent of Wali on
condition of validity of marriage of Nikah of minor, a lunatic and a slave but
not of adult. Thereafter, she referred to 'Convention on the Elimination of all
forms of discrimination against Woman'. In the end she referred to article
titled 'Are Women their Walis puppets on a string' by Mr. Khalid Ishaque,
Advocate printed in the issue 11-10-1996 of the Daily 'DAWN', Karachi.
19.
Mr. Khalid Ishaque, Advocate argued that so far the Hanifies are concerned an
adult girl is at liberty to marry. He referred to book by Allama Ainee
Chapter which contained a detailed
discussion with reference to the different sayings of The Holy Prophet (peace
be upon him). He also referred to which is Urdu Commentary of Mishkat Sharif by
Allama Nawab Muhammad Qutabud-Din Khan Dehlvi then which is the commentary
on by Al Imam Abi-ul-Fazal Shahabuddi, 'Ahmad
Biri,, Ali Bin Muharumad Bin Hajar-ul-Askalanr, which is the commentary of Sahi
Bokhart Sarif. by Imam Muhammad Bin Ali Bin Muhammad Alsarkani, which is
the commentary on:
The
learned counsel argued that the judgments of the Hon'ble Shariat Court are
binding on a High Court. The learned counsel in this behalf has referred to
Articles 203-A, 203-DD and 203-GG. He in support of his arguments referred to
the judgments reported as PLD 1992 FSC 286, 1988 CLC 1877, PLD 1989 SC 777
(778), PLD 1989 Kar. 481, PLD 1994 SC 1, 1987 CLC 126, PLD 1986 SC 360 (475),
PLD 1994 SC 607, PLD 1994 SC 607(620) and PLD 1983 FSC 73.
20.
Mr. Nazir Ahmad Ghazi, Advocate argued that the marriage between the male and
female, therefore, can be performed validly without intervention of Wali. In
this behalf, he referred to Sura-e-Ahzab 22.22 and 22.151, Sura-e-Al Baqra
2.228, 2.230, 2.234 and 2.240. Thereafter, he supplemented his arguments with
the submission that when the adult female is master of her will in the property
matters it is not possible to maintain restriction in respect of marriage. He
proceeded to refer to -following sayings of The Holy Prophet (peace be upon
him):
Hadith No. Name of
the Book Page Other particulars
324 Sunnah
Abu Dawood 126 Volume II of
translation by
Shahjehan Puri and printed
by arid Book Stall,
Lahore.
4 Moota
Imam Maalik 416 Kiutab ul Nikah
67&68 Sahi Bokhari 51-52 English Volume VII
380
& 381 Sunnan Nissai Printed by Farid Book
Stall, Lahore.
1099 Tirmazi
Sharif 566 Volume I, Translated by
Siddique
Hazarvi and
printed
by Farid Book
Stall,
Lahore.
1101 `` 567 `` ``
1847 Sunnan
Ibne Maaja 114 Volume III, English
Translation
by Qazi
Publication
1870 " 129 "
1871 " 130 "
1889 " 140-141 "
Thereafter, he referred to the different instances which
took place in the life of The Holy Prophet (peace be upon him) and during the times
of Khulfa-e-Rashideen. Then he referred to Islamic Laws by Dr. Tanzil-ur-Pehman
and Haqooq-ul-Zaujain by Maulana Abu A'la Maudoodi.
21. We have given our anxious consideration to the arguments
of the learned counsel for the parties, Mr. Muhammad Akram Sheikh, Advocate and
Mr. Abdul Rehman Madni, gone through the record and relevant provisions of law,
precedents as well as textbooks. Now we proceed to consider the significance of
'family' in human life. The family is the basic sphere of human activity. The
child normally is said to learn good manners, discipline and follow religion
which he finds his parents and other members of the family practising or
following. Therefore, all religions have laid special emphasis on the
preservation, strengthening and protection of family. Suffice it is to refer
here following para. from ' A Handbook of Sociology' by William F. Ogburn and
Meyer F. Nimkoff:
"The type of citizen one becomes is related closely to
the type of mother, father, and home life one has."
In 'The Age of Faith' by Will Durant
"A History of Medieval Civilization--Christian, Islamic, and Judaic--from
Constantine to Dante" A.D. 325-1300 while dealing with the components of
integration has written as under:----
"Despite the comparative looseness of the marriage bond
in law, the family was the saving centre of Jewish life. External danger
brought internal unity; and hostile witnesses testify to the 'warmth and
dignity thoughtfulness, consideration, parental and fraternal affection', that
marked and mark the Jewish family ...."
Now we proceed to refer to Muqaddama Ibne Khaldoon by Allama Abdul Rehman Ibne Khaldoon
Almaghrabi 732 A.H. to 808 A.H. The great philosopher wrote as under:--
In the next chapter of the same book reads as under:---
And in the next part he wrote as under:--
22.
Islam being religion of nature and covering all human activity from cradle to
grave, has taken special care of the integrity, upkeep and preservation of
family. In Islam family unit is fully oriented. The Nikah is uniting/linking
not only two individuals but also two families. The rights and obligations in
Islam are not according to the sex but according to its contribution to the
family. The rights and liabilities of members of family are not as male and
female, girls and boys, man and woman but are with reference to their status in
the family namely, father, mother, husband, wife, brother and sister. The
champions of the women rights are ignorant ,of the status of mother in Islamic
Society. The highest respect which one can conceive has been given by Islam to
mother, therefore, to judge rights and obligations in Islam particularly family
life with reference to sex would not be justified.
23.
The parents are responsible for marriage of the children generally and girls
particularly. The learned counsel for the petitioner correctly referred to
Encyclopaedia of Religion and Ethics by James Hastings to argue that this is
not only in Islam but recognized by all religions. Bishop Kenenth appeared to
canvass the same point.
24.
Mr. M. Khalid Ishaque was asked as to the main reason for moral decline in the
west. He rightly remarked that it is on account of legislation against divine
law. He proceeded to explain that the law was enacted, of course on the
agitation of the women, that if the marriage breaks the spouses shall share the
assets equally. He added that the result is that now men and women are living
without marriage bond in order to save property. It would be relevant to refer
here Armstrong's emphasis on the preservation of family in his article in the
Reader's Digest, which appeared at page 39 of May, 1996 issue. The relevant
portion reads as under:---
"I thought about the power of a
good name when I heard General Colin Power say that America needs to restore a
sense of shame in its neighborhoods. He's right. If pride in a good name keeps
families and neighborhoods straight, a sense of shame is the reverse side of
that coin. Doing drugs, abusing alcohol, stealing, getting a young woman
pregnant out of wedlock-today, none of these behaviour is the deep
embarrassment it should be. Nearly one out of three births in America is to an
unwed mother. Many of these children will, grow up without the security and
guidance of a caring father and mother committed to each other.
Once the social ties and mutual obligation of the family
disintegrate, communities fall apart. Politicians may boast that crime is
falling, but while the population has increased only 40 per cent. since 1960,
violent crime in America has increased a
staggering 550 per cent.--and we've become
used to it. Teen drug abuse is rising again. No neighborhood is immune. In one
North Carolina country, police arrested 73 students from 12 secondary schools
for dealing drugs, some of them right in the classroom.
Cultural influences such as television and movies portray
mostly a world in which respect goes to
the most violent. Life is considered cheap."
25. Mr.
Muhammad Akram Sheikh, Advocate in his paper has referred to
following portion of the speech, of Mrs. Hillary Clinton
made by her in election campaign of her husband:---
" ... In
order to raise a family, a happy family; a confident family, it
needs a family, it needs a village,
it needs a society, it needs a president and, it needs Bill Clinton."
According to Mr. Muhammad Akram Sheikh, Advocate, who heard
the speech himself, the response of this touching speech was very positive and
for one moment it appeared that "evil empire" of United States of
America is within the reach of its lost paradise. Although it has become sole
power but is feeling hollow and deficient because of collapse of family
nucleus. Mr. Muhammad Akram Sheikh referred to social change which is being
thrusted upon Pakistan society in somewhat similar fashion, which is seen to have
prefaced the subsequent explosion of family unit in the other societies in
west. He referred to following statistics:---
"Household sizes.--More than a quarter of households in
Great Britain in 1994-95 consisted of one person living alone, almost double
the proportion in 1961. This is due to the increasing elderly population who
lives alone and the increasing number of men living alone.
The average household size in U.K., fell to 2,4 persons in
1994-95 as compared to 2.9 in 1971. This is due to the increase in the divorce
rate and the fall in family size. As the proportion of one person households
has been growing, the proportion of traditional one family households of a
couple with children has been declining. In 1961 38 % of households in Great
Britain comprised of married couples with dependent children, this proportion
fell by 13 percentage points to 25 % in 1994-95.
Single-parent families.--The proportion of dependent
children living in one-parent families in Great Britain has tripled since 1972;
19 % of children lived with just their mother and 1 % with just their father in
1994-95. This reflects the increase in the number of live births outside
marriage and the increase in the divorce rate.
The proportion of lone mother families increased gradually
until the late 1980s, but has since increased more rapidly, so that iii 1993
one in five mothers with dependent children was a lone mother. Nearly
two-fifths of lone mothers were single in Great Britain in 1994-95 while almost
the same proportion were divorced The gradual increase in the proportion of
lone mothers until the mid 1980 was caused mainly by the increasing numbers of
divorced mothers. Since then the proportion of divorced lone mothers has
stabilized, but the proportion of single, never married, mothers has more than
doubled.
Cohabitation.--The proportion of unmarried women aged
between 18 and 49 who were cohabiting in Great Britain almost doubled between
1981 to 23 % . Among single women, 33 % of those aged between 25-34 were
cohabiting in 1993-94.
Between 1986 and 1994-95 the proportion of non-married men
cohabiting increased by 10 percentage points, so that 21 % of men aged between
16 to 59 were cohabiting in 1994-95.
Divorce.--In 1993, the U.K. had the highest divorce rate in
the European union, at almost twice the average, difference in the European
Union rates may be attributed to the effects of religion, cultural acrd social
differences and legal requirement-,
The
Reader's Digest has published debate of the presidential candidates of the
preset U.S.A., Election in its November 1996 issue. One of the questions and
reply thereof by the main candidates read as under:---
"America has witnessed a sharp
increase in illegitimacy. In 1965 eight per cent. of all children were born out
of wedlock. The latest figure is 33 per cent. What is happening and what can be
done?
Clinton: The social stigma of
bearing a child out of wedlock is less than it used to be and less than it
should be. Once a baby is brought into the world, I don't think we should
condemn the mother and the child. But we should say that it is not a good thing
when a child is born out of wedlock. Dole: It's happening for a lot of reasons.
Some we can't legislate---it's family breakdown. That's why I want to go back
to education; the best place to start is kindergarten, We've got to go back to
our churches and service clubs. We've got to have some personal responsibility
too. We've got to go after tattlers who, don't support inch children.
26. Now we proceed to deal with the Nikah and its
significance. It is interesting to note here that the word marriage' commonly
used has been derived from word 'rnarri and means to take over, on the other
hand, the word 'Nikah' means to unite, bind. Robin and William in their book
American Society' wrote that marriage is more than an ordinary civil contract
It contains an element of status in the legal sense. If the family is the basic
unit 'of a society then marriage is the basic material of this unit.
26-A, Before proceeding with the
essential ingredients of a valid Nikah we would take up the issue whether Nikah
in Islam is civil contract as held iii tire cases of Munshi Fazal Rahim, Abdul
Qadir and Abbas Ali (supra). The marriage was treated as sale purchase with
dower its consideration. The background seems to be that in the sub-Continent
in early days of British Rule there was no Codified Law dealing with the Muslim
marriages, The result was that the suits for restitution of conjugal rights
were treated as suits for specific performance and the theory of civil contract
developed; as against that Hindu marriages were governed by their personal law
and there was no such rule, The decisions were given in utter disregard of the
position of Nikah in Islam and the purpose of dower was completely
misunderstood, The other reason seems to be the influence of development of
English Law of marriage, which was performed through church and the same could
be dissolved only with the intervention of the church. Then another specie of marriage
carne into existence to defy the Supremacy of church. Where man and woman would
go to the Court of law and after denouncing their religion would seek
permission to get, married This also seems to have influenced the mind of
Courts in Sub-Contitent while treating the marriage as a civil contract.
27. In Islam the NiKah is ' Sunnat'
of the Holy Prophet (peace be upon him) and it was made clear who gave up the
Sunnat he ceased to be a Muslim. The , notion of civil contract was taken
serious note by Maulana Ashraf Ali Thanvi in his book lslah-e-Inqlabe
Ummat at page 52 Volume Il. He opined as
under:---
28. The view that
marriage .was a civil contract in Islam was mainly supported by the argument that
dower was its consideration. The view is superficial and advanced without
taking into consideration the philosophy of dower. The dower is no
consideration of marriage in Islam. In sura 4.4 it has been called as nehla
which carried the meaning of gifting something. of free-will while in Mishqat
Sharif translated by Maulana Muhammad Sadiq Khalil, the same has been dealt in
Baab-ul-Sadaq while in Durr-ul-Mukhtar it means. In the Islamic Family Law
edited by Chibli Mallat while dealing with Jewish marriage it was noted that
"The salient features of the ceremony were that the groom gave the bride
an object of a specific worth, which in practice nowadays is the wedding ring.
This object must be given to the wife in the presence of two witnesses, whose presence
is not merely evidentially but constitutive". Then Ruben Levy in his book
"The Social Structure of Islam" opined that "The fact that in
Islam "Mahr" or "Sadaq" was paid to the wife has a bearing
on the question whether women in pre-Islamic times and in early Islam could own
property". The issue was also dealt by Dr. Muhammad Shabbir in his book
'Muslim Personal Law and Judiciary'. The learned author after reference to The
Holy Qur'an, jurists and various judgments rendered in the Sub-Continent concluded
as under:---
"The comparison between 'dower' and ' consideration' is
mere analogical and the one is not an identical precedent for the other. It
will be wrong to scratch the analogy of sale too far. Marriage is not a
contract of a sale in the strict sense nor the consideration that is known as
dower. In short, both propositions that the marriage is a 'purely civil
contract' and dower is a price of wife' do not hold much water.
It is really surprising as to how the Courts still treat
marriage as a transaction of a sale in spite of weighty, judicial precedents to
the contrary. The realities of human mind appear to have worked against the
true nature of the institution of marriage and dower and judicial sphere of
decision-making. As is evidence from the observation of Mr.Justice Mitter in
Subrannisssa v. Subdu Sheikh AIR 1934 Cal. 693 and opinion of Mookerjee and
Amiya Kumar, JJ., in B.M., Mondal v. D.R. Bibi AIR 1971 Cal. 162. It is
virtually the outcome of the decision of Abdul Qadir's case. "
Dr.
Muhammad Shabbir has also referred to case of Syed Sabir Hussain Shah v.
Farzand Hussain AIR 1933 PC 80, where it was finally concluded that it was not
only a pious obligation but legal responsibility of husband too. While in the
judgment of Anis Begum v. Malik Muhammad Istafa Wali Khan AIR 1933 All. 634 Sir
Sulaiman, Chief Justice ruled as under:---
" ....The analogy of the same cannot be carried out too
far. The marriage cannot be regarded as purely sale of the person of the wife
in consideration for the payment of the dower. "
The same view was expressed by
Justice Tek Chand in Fatima Bibi v. Lal Din AIR 1937 Lahore 345 clarifying the
scope of dower reads as under:---
"Under the Mahomedan law dower is not exchange or
consideration, as understood in the technical sense in the Contract Act, given
by the man to the woman for entering into the contract but an effect of the
contract imposed by the law on the husband as token of respect for its subject,
the woman. So, an agreement by the third person guaranteeing payment of a
post-nuptial dower, is not void as being without consideration and the third
person cannot escape liability under it."
Allahabad High Court in Kamar-un-Nissa
Bibi v. Hussain Bibi (1881) 3 All. 266 (PC) conclusively held as under:---
"consideration not to be taken or has been used in the
Indian Contract Act. "
And the learned Judge in support of
the above view referred to following passage of Mahomedan Jurisprudence by Sir
Abdul Rahim:---
" ... ...a marriage is valid though dower is not
settled at the time and it is wrong to say that dower is a consideration
proceeding from the husband for the contract of marriage. In reality it is an
obligation imposed by Muhammadan Law as a mark of respect for the wife. "
29.
The theory that dower was a consideration for the marriage is otherwise
falsified by three basic facts, namely:---
Firstly, the ,fixation of dower is
not a necessary requirement of valid marriage and may not be in terms of money
or shape of material things;
Secondly, the amount can be enhanced
by mutual agreement and bride can forego the same; and
Lastly but not leastly, dower can be
deferred, which would be payable after death or dissolution of marriage,
therefore, this fact alone is sufficient to discard the view that dower is a
consideration for marriage.
30.
The other argument in support of the view that the marriage is a civil contract
was acceptance. This was introduced by Islam
while in the earlier the women were treated as chattel. Syed
Riazul Hassan Gilani, Advocate in support of this view has referred to
Encyclopaedia of Religion and Ethics, Volume V. The relevant portions read as
under:---
"Page 464:
....Roman of early times did not think of marriage and manus
as inseparable: for the bride must have been properly married under usus, if
her children were to be Roman citizens, though for a year at least she was not
under manus ....
3. The historic period.---(a) Conditions of
marriage.---The necessary conditions, of marriage were: (1) the families of
both parties must possess the ius connubii (as explained above); (2) the
parties must not be within the prohibited degrees of relationship cognatio.
Page 470:
5. Abyssinian.---....Such marriages are
solemnized by a priest, and the contracting parties partake of the Holy
Communion.
Page 471:
When a man desires to marry a girl, he applies directly to
her parents or nearest relatives;
Marriage. (Slavic).---As early as the pagan period the
family life of the Slave was regulated by legal marriages, which were concluded
in a solemn manner.
Page 472:
A marriage became legal only after the precise performance
of all prescribed observances inherited from the ancestors and consecrated by
the family tradition;
and this conviction is still to be found among some of the
Slavic nations. "
Thereafter, he referred to
Auza-ul-Tashriah (legal system). The translation of the relevant portions read
as under:---
30-A.
The view that marriage was simply contract of sale purchase was projected
without keeping in mind that the womenfolk has been driven to the status of
slaves by this theory of sale purchase. This was not only inhuman but most
disgraceful and was completely in derogation to teachings of Islam.
31.
Now we take up the institution of Nikah and its ingredients. Dr. Syed Riazul
Hassan Gilani, Advocate argued that following are the conditions of a valid
Nikah:---
(1) permission of Wali and consent of the bride;
(2) the acceptance 'by the spouses ( '~; ~I)
should be in the assembly convened by the
family of the girl; and
(3) it shall be done in the presence of the two
witnesses.
The learned counsel added that the
contracting party is Wali and not the girl herself because she speaks through
Wali. There is not much difference between various sects except the permission
of the Wali because Imam Abu Hanifa is said to hold the view that consent of
Wali was not necessary for a valid Nikah.
32.
The learned counsel for the petitioner, Dr. Syed Riazul Hassan Gilani and Malik
Muhammad Nawaz, in support of their contention that sanction/consent of Wali is
one of the conditions of valid Nikah, have referred to Sura-e-A1 Baqra, Verse 221,
which reads as under:---
221. Do not marry.
Unbelieving 245-A woman. Until they
believe: A slave woman who believes Is better than an unbelieving 245-A woman.
Even though she allure you.
Nor marry (your girls) To unbelievers until. They believe:
A man slave who believes. Is better than an unbeliever 245-A
Even
though he allure you. 246 Unbelievers do
(but). Beckon you to the Pire.
But Allah
beckons by His grace To the Garden of Bliss And forgiveness .
The latter part of the above Verse
is clear command to the men, fathers/head of families and it negates the
marriage by female herself. In the marginal note the literal meanings of
unbelieving and unbeliever, are "pagan". Muhammad Yousaf Ondalsy, in his
commentary Tafseer-ul-Kabeer has written that the command is to be the Wali of
the woman, therefore, for valid Nikah consent of Wali is necessary while Imam
Qurtabee in his Tafseer'Qurtabee has referred to this verse in support of the
rule that the presence/participation of Wali is essential in Nikah. The great
Imam also added that nowhere in the Holy Qur'an, Almighty God has directed
other than man to perform the Nikah if the presence of Wali was not necessary
then address must have been to be women at least somewhere. The same is the
view expressed by Allama Hazam (R.H.) in Tafseer-ul-Minar.
The
second Verse relevant on the issue is Sura-e-Noor 32, which reads as under:.-.
32. Marry those among
you who are single, 2988 and The virtuous
ones among your slaves,
33.
Again the address is to the men and not women. The third verse, of course, the
main verse which supports the proposition is Verse No.232 of Surao-Al Baqra,
which reads as under:---
32, When ye divorce Women, and they fulfil The term of their
'Iddat, Do not prevent
them 265
From marrying Their former husbands, If they mutually agree on equitable terms.
This instruction is for all amongst you, Who believe in Allah And the last Day,
That is the course Making for most virtue And purity amongst you And Allah knows, And ye know not.
Imam Bokhari (R.H.) has cited above
two verses in support of Hadith. The Imam has his own style. He did not
incorporate the saying of The Holy Prophet (peace be upon him) one after the
other but proceeded to pick up issues, subjects or titles and then incorporated
all the Ahadith under the same with reference to Holy Qur' an.
34. Imam Bokhari (R.H.) under this
title has mentioned the incident of Maakkal Bin Yassar (R.Z.A.), according to
which, Aasim Bin Addi ex-husband of his sister wanted to remarry her after
having pronounced divorce. Maakkal (R.Z.A.), did not approve this move for the
reason that he has already caused insult to the family, therefore, he said on
Oath that he will not marry his sister once again to him but after revelation
of this verse he allowed the marriage of his sister to her ex-husband and paid
expiation ( o,)C;af'~ )for breaking the Oath. Imam Bokhari (R.H.) after citing
this instance concluded that woman in spite of wish cannot marry by herself and
the command of the Almighty God was directed to her Wali not to stand in her
way. The other interpretation that it permitted the woman to contract marriage
is not possible because Imam Bokhari (R.H.) has concluded this instance with
the words, so Maakal married his sister to this man while according to Imam
Shaafi (R.H.) this is the strongest and decisive argument in favour of the rule
that the consent of the Wali is necessary for Nikah of a woman. Allama Ibne
Kaseer in his work Tafseer Ibne Kaseer has expressed the same opinion as
under:---
In the end we would refer to
commentary of this verse in Tafseer-ul-Jamia Ahkam-ul-Quran by Imam Qurtabee,
which reads as under:---
And to the same effect is commentary
in ' Tafseer Jamia-ul-Bian-ul-Batri' by Imam Ibne Jareer Tibree and '
Tafseer-ul-Taheer-o-Tanveer' by Muhammad Tahir Ibne Aashhoor.
35.
Now we proceed to refer four Ahadith, relied by the learned counsel for the
petitioner on the point of ' No Nikah without Wali', which are reproduced as
under:---
Besides this there are other
sayings, one of which has already been noted in the foregoing paragraphs.
36.
On tire other hand, Mr. Nazir Ahmad Ghazi, Advocate, counsel in W.P. 2620 of
1996 argued with reference to swan Verses of tire Holy Qur'an. noted in his
argument that to fact the commands of Almighty God with reference to marriage
are to the women and not to the men, He referred to number of complaints
brought to The Holy Prophet (peace be upon him) and Khulafa-eRashideen (R.Z.A.),
where women complained that the marriage has been 'forced on them and they do
not approve the same. These marriages were dissolved. A careful perusal of all
these instances would show that in all these cases the consent of the woman was
missing or secured through duress and pressure. We have already recorded that
there cannot be a marriage without the consent of the female. The marriage
forced on her is not a valid marriage in accordance with the Injunctions of
Islam. This sufficiently disposes of the arguments of Mr. Nazir Ahmad Ghazi,
Advocate. ,
37.
It is made clear that if a female wanted to denounce her marriage for want of
her consent then she. has to do it within shortest possible period from date of
Nikah as option of puberty is exercised immediately on attaining puberty
otherwise plea would be rendered doubtful by delay.
37-A.
According to Sunnan Abu vawood Sharif, it there is a difference of opinion
between the Walis or there is none then Sultan Ruler is the Wall. In this
behalf, reference is made to Hadith No.315, which reads as under:---
In the end we would like to refer to views of Hazrat Abdul
Qadir Jilani (R.H.) expressed in Ghunia-tul-Talibeen Urdu translation by
Maulana Ahmad Sahib Madrasi as under:---
38.
We would proceed to examine different types of marriages prevalent in Arab on
the dawn of Islam and the type approved and followed as it would make the point
further clear. In this behalf, it is relevant to refer following portions of
saying of Hazrat Aisha (R.Z.A.) as included in Maaref-ul-Hadith by Maulana
Muhammad Manzoor Naumani:---
It
is clear from the opening passage that the mode which was approved and followed
by Muslims was that man desirious of marrying a girl or woman would approach to
her father or the head of the family and after settling the dower the Nikah
would be performed. In my humble opinion this not only was in line with command
of the Holy Qur'an but also supported the above Hadith that a woman cannot
marry herself. It is matter of common knowledge that this mode is in vogue in
the Muslim Society including this Sub-Continent till today. What more clear,
strong and direct evidence is required to uphold the rule that. This is the
only known mode of marriage prevalent in our society and to disturb this arrangement
would if not wreck then _ completely shake the structure of the society rather
strengthening it. The Holy Qur'an says (mischief is more devastating than
murder). The other established rule is that a Hadith, which has been
consistently repeated is to be accepted as correct. Imam Abu Hanifa himself in
clear terms told his followers that if they come across a Hadith against his
views then they shall follow the Hadith and not him. Above all no writing of
the Imam to this effect is available.
39. M/s. Khalid Ishaque and Nazir Ahmad Ghazi, Advocates
have referred to Code of Islamic Law by Dr. Tanzil-ur-Rehman. Suffice it is to
record here that learned author debated the point without keeping in mind
startling results. It was lost sight of the fact that it would lead to a
society free from all social and moral values and to borrow the words of Dry
Allama Muhammad Iqbal (R.H.). The Muslims did not strive in the past, they are
not making efforts today and they would never endeavour for such a society in
future. The views of the learned author also lost sight of the sufferings of
west by following the theory of equality and sui juris. Hafiz Salah-ud-Din
Yousaf, Advisor to Federal Shariat Court, in his Articles printed in the Daily
' Nawa-I-Waqt' has elaborately exposed the pitfalls and shortcomings of the
views expressed by the learned author.
40.
We have recorded our views on the point with reference to Holy Qur'an, Ahadith,
Ijma and in the historical perspective. The admitted position is that there is
difference of opinion on the point amongst Aimma and Faqihs. Assuming that
there is no Qura'nic Verse or Hadith or Ijma on this point then this Court may
form its own opinion. We are fortified in our view by the judgment in the case
of Mst. Zohra Begum v. Sh. Latif.Ahmad Munawwar PLD 1965 (W.P.) Lahore 695. The
relevant portion reads as under:---
"8. On this view, it would be permissible for Courts to
differ from the Rule of Hizanat stated in the textbooks on Muslim Law for there
is no Qura'nic or Traditional text on the point. Courts which have taken the
place of Qazis can, therefore, come to their own conclusions by process of
Ijtihad which, according to Imam-Al--Shafei', is included in the doctrine of
Qiyas. It has been mentioned earlier that the rule propounded in different
Textbooks on the subject of Hizanat is not uniform. It would, therefore, be
permissible to depart from the rule stated therein if, on the facts of a given
case, its application is against the welfare of the minor .... "
This was affirmed by the Hon'ble
Supreme Court in B.Z. Kaikus and 10 others v. President of Pakistan and 15
others PLD 1980 SC 160. The relevant portion of the judgment reads as under:---
"8. With' great humility I venture to submit that it
would not be correct to lay it down as a positive rule of law that the
present-day Court in this country should have no power or authority to
interpret the Qur'an in a way different from that adopted by the earlier
jurists and Imams. The adoption of such a view is likely to endanger the
dynamic and universal character of the religion and law of Islam. At the same
time it is clear that the views of the earlier Imams and Jurists are entitled
to the utmost respect, and no Court or Commentator would differ from them
except for very compelling and sound reasons. I would also like to make it
clear at this stage that this difference of interpretation does not, and
cannot, mean a departure from a clear injunction of law as contained in the
Qur'an or Sunnah, or even Ijma', on any grounds of equity, good conscience or
public policy."
It will be beneficial to refer to
another portion of this judgment, which reads as under:--- ,
"6. Islam is not a priest-dominated theocracy. Its
principles are neither hidden nor complicated or involved, and not
impracticable. It is a law which has within it the capacity or capability of
being practised, enforced and applied, and adopted at all time and all places,
only if it is understood and interpreted in a true and proper manner and in its
true spirit, keeping in view the environments and the circumstances of the
situation at the relevant time. "
We are national Judges and as such
custodian of the morals of the citizens, therefore, it is not possible to
subscribe to the opinion expressed by Dr. Tanzil-ur-Rehman. Even otherwise
rule of interpretation is that view which is in line with the moral standards
of the society is to be accepted.
42.
The Judges are not debarred from giving their own opinion in the matters for
which there is no direction in the Holy Qur'an as well as there is no Hadith to
guide the Umma and there is difference of opinion between various Imams,
Muhaddaseen and jurists. We in this behalf may refer to the judgment of the
Hon'ble Supreme Court in the case of Mst. Khurshid Bibi v. Baboo Muhammad Amin
PLD 1967 SC 1997. The relevant paras. read as under:---
"The fundamental laws of Islam are contained in the
Qur'an and this is, by common consent, the primary source of law for Muslims.
Hanafide Muslim jurisprudence also recognises Hadith, Ijtehad and Ijma as the
three other secondary sources of law. The last two really fall under a single
category of subsidiary reasoning, 1jtehad being by individual scholars and Ijma
being the concensus of scholars who have resorted to Ijtehad in any one age.
That this is the order of priority, in their importance, is clear from the
well-known Hadith, relating to MuadhIbn-e-Jabal who was sent by the Prophet as
Governor and Qazi of Yemen. The Prophet asked him, how he would adjudicate
cases. 'By the Book of God', he replied, 'But if you find nothing in the Book
of God, how?: 'Then by the precedent of the Prophet'. 'but if there be no
precedent?' 'Then I will diligently try to form my own judgment'. On this, the
Prophet is reported to have said, 'Praise be to God who hath fulfilled in the
messenger sent forth by him apostle that which is wellpleasing to the apostle
of Allah'."
The four orthodox schools of Sunni Fiqh were headed by Imam
Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad-bin-Hanbil. The learned
Imams never claimed finality for their opinions, but due to various historical
causes, their followers in subsequent ages, invented the doctrine of Taqlid,
under which a Sunni Muslim must follow the opinions of only one of their Imams,
exclusively, irrespective of whether reason be in favour of another opinion
There is no warrant for this doctrinaire fossilization, is the Qut'au or
authentic: Ahaditb_ In the Aimital-wan-Nihal, page 39, it is stated that the
great Abu Hanifa used to say ""This is my opinion and consider ii to
be the best. If someone regards another person's opinion to be better, he is
welcome to it 'for him is his opinion and for us ours'. "
43.
In the case of Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901
the Hon'ble Supreme Court ruled that principle of Islamic Law and Injunctions
of Islam have to be kept into consideration while interpreting the statutes. It
was held that the Courts are competent to enforce well recognized principles of
common law hence-such interpretation which is in conformity with the
Injunctions of Islam is to be followed.
44.
Now coming to the Muslim Family Laws Ordinance, 1961 wherein a pro forma for
Nikah has been prescribed and registration of Nikah has been made compulsory
under section 5 thereof. Serial No.7 of column I of the I Nikahnama provides
for appointment of Wakil of bride. The same is to be witnessed by two persons.
45.
The term ' Wakil' has not been defined in the Ordinance, 1961. The, purpose
seems to be that as the female is not to appear in the assembly herself
therefore, she should be represented by a male. The Wakil generally is
representative of the party appointing/nominating him. We are, at the moment;
not concerned with the different views as to the capacity of a minor to act as
Wakil in Hanafi and Shaafi schools but one thing is clear that a Wakil
representing the female cannot be man from the street because he is to perform
Ijab-o-Qabool. Therefore, keeping in view the Islamic principles and the
general practice prevalent in our society the Wakil of the female has to be one
related to her in the prohibited degree. It is normally maternal/paternal
uncles, sister's husband, brother, father etc. The stranger cannot represent a
female in Nikah. The girl speaks through her Wakil. This is not a restriction
on the females but the purpose is to preserve their honour. This way it is
requirement of her protocol. She is entitled to this because being the honour
of two families. This has to be observed for another reason that it would
exclude marriage through duress, pressure, compulsion and fraud. In the case of
Saima her Wakil was one Syed Shaukat Hussain. Nobody knows, who he was, but one
thing is established that he has no blood relation with her.
This
will be in consonance of the Islamic principles otherwise the marriage will
lose all its sanctity and the witnesses, Wakil would all be hired/arranged by
the Marriage Bureaus as is happening in Reno Nevada U.S.A Where man and woman
just engage a marriage agency and they make all the arrangements including
ceremonial dresses, witnesses, priest etc.
46.
The assembly is also essential because Nikah has to be made knowij it is
improper to keep the same secret and according to imam Malik (R.H.) the
decimation is one of the conditions of Nikah because it distinguishes the same
from Zina, therefore, he was of the view that if witnesses of Nikah were told
to keep it a secret then the Nikah becomes invalid.
47. Before leaving the topic we want
to make it clear that it is the duty of the parents to marry the children
particularly girls at the earliest point of time They should tint afford
opportunity to outsiders in the house or outside to come across the young girls
may be visitors, servants, drivers of public conveyance. It is absolutely
essential to preserve the purity of the homes and this is why much emphasis has
been laid by the Islam that females should not mix up with male:
48. The Government should also regulate,
if not totally ban, the marriage bureaus and such like institutions, which have
become a menace in the society and most of them are otherwise of not bad
character. The innocent parents of both sides and would be spouses become their
victims and their whole life is spoiled.
49. We have held that according td
Shariah consent of female is a condition precedent for a valid marriage. There
can be cases where the girl refuses to marry a particular person at the
instance of her Wali for valid reasons. Then the question would arise as to
what is her remedy? We propose that the Government should enact law to provide
a detailed machinery in this behalf and in the meanwhile, the petitions may be
made to the District Judges of the place where; the girl last resided with the
parents. This could be done under the Quetta Declaration issued by the Chief
Justices Committee on 14-8-1991. The relevant paras. reads as under:---
"(2) to ensure that all
citizens, particularly the deprived and unaided sections of the society, become
conscious and assertive of their rights and obligations as guaranteed and
provided by Islam, the Constitution anti the Law and in order to achieve this
objective, to provide an efficient machinery at the door-steps so that they can
protect the rights and fulfil the obligations;
(3) to strive for realizing the objections set
out in the "OBJECTIVES RESOLUTION" as well as in the
"CONSTITUTION" with particular emphasis on Islamic social
justice;"
The female or anybody may petition
on her behalf to the District Judge pointing out proposed marriage without her
consent. The District Judge should send for the parties and hear them day today
till the controversy is resolved and in the interregnum period he would lodge
the female in Dar-ul-Aman or allow her to remain with any of the blood
relations falling within the prohibited degree as per her choice. In case the
District Judge is a non-Muslim, the petition shall be entrusted to the senior
trust Muslim Additional District Judge, It is not desirable to prescribe a
specific form of such petitions and the District Judge should exercise the
parental jurisdiction keeping in view the facts of the particular case, Shariat
and norms of the Muslim society.
There
is no satisfactory arrangement for lodging females and children particularly
during the pendency of habeas corpus petitions and other matters in this Court,
therefore, it is proposed that the Government may provide for the institutions
where females and children could be lodged pending the decision of the Court
matters. Such institutions should cater not only for boarding and lodging
facilities for the inmates but also for job, vocations according to their
education and experience. These institutions should be established at least at
the divisional level for the time being. This is Constitutional duty of
Government under Article 35 of Constitution, 1973.
50.
The Courts at the moment are mainly relying on Dar-ul-Aman established by
Anjuman Himayat-e-Islam The same is voluntarily financed, therefore, sources at
their disposal are limited and they have also to face criticism from the
parallel institutions run privately. It is not safe at all to lodge a female or
child in privately managed institutions. The Government should provide for
strict supervision of such institutions which among other matters should
prescribe for reporting as to the arrival of anyone in such institution to the
Police as well as the District Judge within 24 hours, scrutiny of their
accounts and antecedents of the persons connecting with the management of these
institutions.
51. The next question for
determination is whether the judgment of the Federal Shariat Court in the case
of Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 rendered in a
criminal appeal is binding on this Court. Article 203-D details the powers, jurisdiction
and functions of the Federal Shariat Court. It is empowered to examine
provision of law, which appears to be repugnant to injunctions of Islam while
under Article 203-DD the Court has suo motu revisional powers in respect of the
case decided by a Criminal Court under the enforcement of Hudood. The Federal
Shariat Court has not been vested with appellate jurisdiction under this
chapter. However, it has been provided in clause (3) of Article 203-DD that it
shall have such other jurisdiction as may be conferred on it by or under any
law. The relevant clause reads as under:---
"(3) The Court shall have such other jurisdiction as
may be conferred on it
by or under any law."
The words jurisdiction as may be
conferred in the above clause are all important. This way the Federal Shariat
Court has two-fold jurisdiction, namely (i) Constitutional; and (ii) under
other law. The other relevant Article is 203-GG, which reads as under:---.
"203-GG. Subject to Articles 203-D and 203-F, any
decision of the Court in the exercise of its jurisdiction under this Chapter
shall be binding on a High Court and on all Courts subordinate to a High Court.
"
The keywords in this Article are
exercise of its jurisdiction under 3-A Chapter or Part VII of 1973-Constitution.
Now when this Article is read with clause (3) of Article 203-DD then it becomes
clear that an appeal from judgment of Criminal Court is dealt by the Federal
Shariat Court not under this Chapter, therefore, the decision in appeal is not
binding on High Court. It is interesting to note that while Federal Shariat
Court enjoys revisional jurisdiction, as already noted, in respect of the cases
decided by the Criminal Courts under any law relating to the enforcement of
Hudood but no appeal has been provided in this Chapter. The intention of the
Legislature clearly seems to be not to make a judgment passed in criminal
appeal by the Federal Shariat Court binding on this Court.
52.
Now we proceed to examine the rights and obligations of the parents and children
inter se. We are here concerned whether the obedience of the orders of the
parents is obligation of the children or not? Before proceeding any further we
would like to refer to the rights of the parents as appearing in the Holy
Qur'an. First -of all would be referred to some of the Verses and first in the
series is Sura-e-Nisa, Verse No.l. The English translation reads as under:---
111. O mankind! fear Your Guardian Lord who created
you From a single person, 504 Created, out of it, His mate, and from them twain
Scattered (like seeds) Countless men and women;---Fear Allah, through Whom 505
Ye demand your mutual (rights), And be heedful of the wombs 506 (That bore
you): for Allah Ever watches over you.
(504. Nafs may mean: (1) soul; (2) self; (3) person, living
person; (4) will, good pleasure, as in iv. 4 below. Minha: I follow the
construction suggested by Imam Razi. The particle min would then suggest here a
species, a nature, a similarity. The pronoun ha refers of course to Nafs).
(505. All our mutual rights and duties are referred to
Allah. We are His creatures: His Will is the standard and measure of Allah; and
our duties are measured by our conformity with His Will. "Our wills are
ours, to make them Thine," says Tennyson In Memoriam. Among ourselves
human beings our mutual rights and duties arise out of Allah's Law, the sense
Right that is implanted in us by Him).
(506. Among the most wonderful mysteries of our nature is
that of sex. The unregenerate male is apt, in the pride of his physical
strength, to forget the all-important part which the female plays in his very
existence, and in all the social relationships that arise in our collective
human lives. The mother that bore us must ever have our reverence. The wife,
through whom we enter parentage, must have our reverence. Sex which governs so
much of our physical life, and has so much influence on our emotional and
higher nature, deserves-not our fear, or our contempt, or our amused indulgence,
but-our reverence in the highest sense of the term. With this fitting
introduction we enter on a discussion of women, orphans, and family
relationships).
The other relevant Verse is Sura-e-Inam Verse No. 151. The
English translation reads as under:---
"151. Say: "Come, I will
rehearse What Allah hath (really) 9'6 Prohibited you from" join not
Anything with Him: Be good to your parents; Kill not your children On a plea of
want;---We
(976. Instead of following pagan superstitions, and being in
constant terror of imaginary taboos and prohibitions, we should study the true
moral law, whose sanction is Allah's Law. The first step is that we should
recognize that He is the One and Only Lord and Cherisher. The mention of
goodness to parents immediately afterwards suggests: (1) that Allah's love of
us and care for us may--on an infinitely higher plane--be understood by our
ideal of parental love, which is purely unselfish: (2) that our first duty
among our fellow creatures is to our father and mother, whose love leads us to
the conception of divine love. Arising from that is the conception of our
converse duties to our children, Allah provides sustenance (material and
spiritual) not only for us, but for them; hence any custom like to Pagan custom
of sacrificing children to Moloch stands condemned. Then come the moral
prohibitions against lewdness and all unseemly acts, relating to sex or
otherwise, open or secret. This is followed by the prohibition of killing. All
these things are conformable to our own interests, and therefore, true wisdom
from our own point of view).
Thereafter, we would refer to
Sura-e-Bani Israil Verses Nos.23 and 24. The English translation reads as
under:---
"23. Thy Lord hath decreed
That ye worship none but Him,
And that ye be kind
To parents. Whether one
Or both of them attains,
Old age in thy life,2204
Say
not to them a word
of
contempt, nor repel them
But
address them,
In terms of honour.
24. And, our of
kindness,
Lower to
them the wing 2205
Of
humility, and say:
"My
lord! bestow on them
Thy Mercy
even as they
(2204. The spiritual and moral
duties are now brought into juxtaposition. We are to worship none but Allah,
because none but Allah is worthy of worship, not because "the Lord thy God
is a jealous God, visiting the inquiry of the fathers upon the children unto
the third and fourth generation of them that hate Me)"
Note that the act of worship may be collective as well as
individual; hence the plural ta'budu. The kindness to parents is an individual
act of piety; hence the singular taqul, qul, etc.
(2205. Cf. xv. 88 and n. 2011. The
metaphor is that of a high-flying bird which lowers her wing out of tenderness
to her offspring. There is a double aptness. (1) When the parent was strong and
the child was helpless, parental affection was showered on the child: when the
child grows up and is strong, and the parent is helpless, can he do less than
bestow similar tender care on the parent? (2) But more; he must approach the
matter with gentle humility: for does not parental love, remind him of the
great love with which Allah cherishes His creatures? There is something here
more than simple human gratitude; it goes up into the highest spiritual
region). _
(2206. Note that we are asked to honour our father and
mother, not "that thy days may be long upon the land which the Lord thy
God giveth thee" (Exod. xx. 12), but upon much higher and more universal
grounds, such as befit a perfected revelation. In the first place, not merely
respect, but cherishing kindness, and humility to parents, are commanded. In
the second place, this command is bracketed with the command to worship the One
True God. Parental love should be to us a type of divine love: nothing that we
can do can ever really compensate for that which we have received. In the third
place (see next Verse) our spiritual advancement is tested by this: we cannot
expect Allah's forgiveness if we are rude or unkind to those who unselfishly
brought us up.)
Then we refer to Sura-e-Luqman
Verses Nos. 14 and 15. The English translation reads as under:---
"14. And We have enjoined on
man
(To be good) to his parents:
In
travail upon travail
Did
his mother bear him.
And
in years twain 3196
Was
his weaning: (hear
The
command), "Show gratitude
To
Me and to thy parents:
To Me is thy final
Goal.
15. "But if they strive 3591
To make thee join
In worship with Me
Things of which thou hast
No knowledge, obey them not;
Yet bear them company
In this life with
justice
(And
consideration), and follow
The way of those who
Turn to Me: 3198
In the End the return
Of you all is to Me,
And I will tell you
All that ye did. 3599
(3596. The set of milk teeth in a human child is completed
at the age of two years, which is, therefore, the natural extreme limit for
breastfeeding. In our artificial life the duration is muchless.)
(3597. Where the duty to man conflicts with the duty to
Allah, it means that there is something wrong with the human will, and we
should obey Allah rather than man. But even here, it does not mean that we
should be arrogant or insolent. To parents and those in authority, we must be
kind, considerate, and courteous, even where they command things which we
should not do and, therefore, disobedience becomes our highest duty.)
(The worship of things other than Allah is the worship of
false things, things which are alien to our true knowledge, things that go
against our own pure nature as created by Allah.)
(3598. In any apparent conflict of duties our standard
should be Allah's Will, as declared to us by His command. That is the way of
those who love Allah; and their motive in disobedience to parents or human
authority where disobedience is necessary by Allah's Law is not selfwilled
rebellion or defiance, but love of Allah, which means the true love of man in
the highest sense of the word. And the reason we should give is: "Both you
and I have to return to Allah; therefore, not only must I follow Allah's Will,
but you must command' nothing against Allah's Will".)
(3599. These conflicts may appear to us strange and puzzling
in this life. But in Allah's Presence we shall see their real meaning and
significance. It may be that that was one way in which our true mettle could be
tested: for it is not easy to disobey and love man at the same time.
53.
Now we proceed to refer to Ahadith. Imam Bokhari (R.H.) has dealt Ahadith under
the heading that disobedience of the parents is a major sin ( o )and quoted
following Ahadith, which are also included in the Sahi Muslim:---
There are number of other Ahadith,
according to which, the children are bound to obey their parents. Imam
Fakhr-ud-Din Razi explained the word 'Ehsan' (ﻥﺎﺴﺤﺍ)
appearing in Sura-e-Luqman as total obedience or to accept the orders of the
parents willingly with heart and soul. The rule accepted is that whatever a
person wants to do of his own volition he is bound to obey the parents in that
behalf. Imam Ghazali (R.H.) besides (ﻙﺭﺸ) has put another condition that
basis or reasons for such order should not be mala fide (ﻕﺴﺎﻔﺽﺭﻏ).
Now the question is whether such obedience could be enforced
through Court. In this behalf, the well-known precedent narrated by Abdullah
Bin Umar (R.Z.A.), that he was married to a woman whom he loved but Hazrat Umar
(R.Z.A.), his father, did not like this woman and asked him to divorce but
Abdullah (R.Z.A.), did not comply with the direction. Thereupon, Hazrat Umar
(R.Z.A.), complained to the Holy Prophet (peace be upon him) about this.
Thereupon the Prophet (peace be upon him) ordered Abdullah (R.Z.A.) to divorce
that woman. It is amply clear from the above instance that the obedience of the
parents could be enforced by the Courts.
54.
The next question is that how it should be enforced in the present date. We
propose amendment in the schedule to the Muslim Family Courts Act, 1964 and in
the meanwhile, parents may petition to the District Judge where they are
putting up under Quetta Declaration to enforce their rights against the
children.
55.
We are conscious of the fact that some principles, rules of Sharia look harsh
or offending to fundamental rights and other laws. The legal position is that
as per section 3 of the Sharia Act, 1991 Sharia is the supreme law of the
country. The difficulty is that although we profess Islam but do not practise.
But once we accept the Islam fruan core of heart as ordained by the Almighty
God in Sura-e-Al Baqra Verse No.208. Until we follow this golden rule
prescribed by the Creator we would continue facing the superficial
difficulties.
56.
It is, therefore, held that Mst. Saima Waheed and Arshad were not validly
married. However, it is observed that petitioner-Hafiz Abdul Waheed as well as
Mst. Saima Waheed may approach the learned District Judge, Lahore in view of
our findings recorded in earlier portion of this judgment.
57.
It is made clear that the rule as to participation of Wali in the marriage
would have no application to the marriages solemnised in past except those
which are subject-matter of this and other connected petitions.
58.
In this view of the matter, this Criminal Miscellaneous No.425-H of 1996 is
allowed.
(Sd.)
(Sd.)
Malik Muhammad Qayyum, Ihsan-ul-Haq
Chaudhry,
Judge.
Judge.
(Sd.)
Khalil-ur-Rehman
Ramday,
Judge.
MALIK MUHAMMAD QAYYUM, J.----I have had the privilege of going through the judgment
proposed to be rendered by my learned brother Irsan-ul-Haq Chaudhry, J. Despite
my high respect and regard for him, I am not in a position to subscribe to the
opinion expressed by him on certain aspects in his judgment. To me the sole
question which arises for determination is as to whether a Muslim adult girl
can marry without consent of her Wali. While sharing the anxiety of my learned
brother that Islamic norms of our society and the sanity which Islam attaches
to a family must be protected and safeguarded, my answer to the above question
has to be in the affirmative. True enough that runaway marriages are abhorrent
and against the norms of our society and must, therefore, be deplored but I
have despite my best efforts not been able to discover any principle on the
basis of which it can be held that Nikah of sui juris Muslim girl without
consent of her Wali would be invalid. However, the nature of the marriage and
the manner in which it has been performed may be relevant consideration for
granting or withholding relief in a matter in which the Courts of law are called
upon to exercise their discretion.
2.
Though we had heard lengthy arguments of the learned counsel for the parties
yet I agree with Mr. Khalid Ishaque, Advocate that it is not necessary for us
to enter into detailed discussion on the subject as the Federal Shariat Court
in the case of Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 after
examining all aspects of the matter has ruled that in Islam, a Muslim adult
girl can marry without the consent of her Wali. This judgment of the Federal Shariat
Court is not only binding on us in view of Article 203-GG of the Constitution
of Islamic Republic of Pakistan, 1973 but also commands great respect in view
of the eminence of the learned Judges and Ulema forming Bench
3.
It has been argued on behalf of the petitioner that the aforesaid judgment was
delivered its the exercise of appellate jurisdiction by the Federal; Shariat
Court and has, therefore, no binding effect. The distinction pointed out, is
specious. It matters little whether the judgment was delivered in the exercise
of appellate or revisional jurisdiction as it would be anomalous to hold that
one judgment of a Court is binding, another of its judgment can be ignored. It
is idle to draw any such distinction.
4. Even otherwise Article 203-DD(3) of the Constitution
envisaged conferment of any other power by law upon the Federal Shariat Court
and as such it cannot be said that the appellate jurisdiction in the exercise
of which the above-cited judgment was delivered by the Federal Shariat Court
was outside the contemplation of Chapter 3-A of the Constitution. In view of
the clear provision of Article 203-GG, the said judgment is binding on this
Court.
5.
Be that as it may, coming from a high Constitutional Court like Federal Shariat
Court constituted for the specific purpose of dealing with the questions as to
interpretation of Islamic principles, the judgment in any case is entitled to
great respect. Therefore, respectfully following the judgment on the vital
question, I am of the view that Nikah contracted without the consent of Wali by
a sui juris Muslim girl would be valid.
(Sd.)
MALIK MUHAMMAD QAYYUM,
JUDGE.
KHALIL-UR-REHMAN
RAMDAY, J.---I have had the privilege of
reading the elaborate, well considered and learned judgments proposed to be
delivered by my learned brothers, Ihsan-ul-Haq Chaudhry and Malik Muhammad
Qayyum, JJ. In Criminal Miscellaneous No.425/H-96, Criminal Miscellaneous
No.435/H-96, W.P. No.6468/96, W.P. No.8288/96, W.P. No.8912/96, W.P.
No.6063/96, W.P. No.11513/96 and W.P. No.2620/96.
2.
In view of the importance of the issues, involved in these petitions, I have
considered it appropriate to give my own views and my own decision thereon and
the reasons therefor.
3.
The facts and circumstances leading up to all these petitions have been noticed
in some detail by my learned brother Ihsan-ul-Haq Chaudhry, J., and I do not
wish to unnecessarily burden this judgment by repeating the same. Suffice it,
however, to say that in all those cases, each young, unmarried girl had managed
to establish contact with a man; this contact then developed into a secret
liaison and this secret affair then allegedly culminated into a secret
marriage; each girl disappeared from her parental home; apprehending worst of
consequences, the family in each case commenced a frantic search for their
daughter/sister to ultimately find out, after weeks in some cases and after
months in others, that their dear-one had contracted an alleged marriage.
4.
The one crucial question, amongst others, which is common in all these
petitions is as to whether such a NIKAH marriage, surreptitiously
contracted, by a male or a female of his or her own accord and otherwise than through
a WALI (a guardian or an elder) was or was not valid in terms of the
Injunctions of ISLAM?
5. Since the task before me is to identify the Commands of ALLAH
and his PROPHET (S.A.W.) on the issues in question, therefore, I
consider it imperative, at the very outset, to notice some of the basic
principles ordained by ALLAH about His Injunctions and the light in which they
have to be viewed and appreciated. The Muslims are called upon to:---
"Enter into Islam
Whole heartedly;
And follow not
The footsteps
Of the Evil-One;
For he is to you
An avowed enemy".
SURAH 2.208.
We must also understand the purpose which had, inter alia,
led the Creator to create us and which is:--
"Blessed be He
In Whose hands
In Dominion:
And He over all things
Hath Power.
He Who created Death
And Life, that He
May try which of you
Is best in deed."
SURAH 67.1 and 2.
ALLAH
ALMIGHTY further declared that:---
"It
is your Lord
That
knoweth best all beings
That are in the heavens
And on earth."
SURAH
17.55.
And
that:---
"Should He not know,
He that created?"
SURAH
67.14.
We
also need to know that ALLAH had condemned, in rather strong terms, the
ones who used to accept only that part of His revelations which suited them and
who used to reject the other part of the Divine Book which was not to their
liking. One such Verse is reproduced
hereunder for ready reference:---
"Then is it only a part of the Book
That ye believe in,
And do you reject the rest?
But what is the reward for hose
Among you who behave like this
But disgrace in this life?--
And on the Day of Judgment
They shall be consigned
To the most grievous penalty
For Allah is not unmindful
Of what ye do."
SURAH
2.85.
It
has been further ordained by the ALMIGHTY ALLAH that we should not
question the Commands of ALLAH when He has -decided some issue and
should willingly accept the same. The relevant Verse is as under:---
"It is not fitting
For a Believer, man or woman,
When a matter has been decided
By Allah and His Apostle,
To have any option
About their decision
If anyone disobeys Allah
And His Apostle, he is indeed
On a clearly wrong Path."
SURAH
33.36.
It
is thus obvious that the Muslims are called upon to accept ISLAM in its
totality and not just to follow what tastes sweet to them and to discard what
is trot to their liking. It is also the belief of a Muslim that ALLAH is
the Creator of all, things and He knows his creations the best. And finally
that when a Command of the Creator is available with respect to a particular
matter, then the believers must accept and follow the same.
6.
In order to discover the essentials of a valid marriage, I propose first to
examine the status, social and legal, which ISLAM has conferred on
females. The next aspect that I shall attend to would be the Code of Conduct
prescribed by ALLAH and His PROPHET (S.A.W.) which the men and
women are expected to abide by. This shall be followed by a discourse on how ALLAH
and His PROPHET (S.A.W.) view the
premarital and extra-marital relationships between a man and a woman. I shall
thereafter try and identify the obligations of the children towards their parents and the place which the family
occupies in terms, of the HOLY QUR'AN and the SUNNAH of the HOLY PROPHET (S.A.W.) and then venture to
determine the crucial question of the validity of a marriage without the
intervention of a WALI.
7.
To appreciate the status which ISLAM conferred on a woman, it would at
of advantage to notice tile place of a woman in the pre-Islamic societies aid
also her position in post-Islamic societies which did not follow ISLAM. The Greeks believed that the
cause of evils and all worldly calamities, was the woman. PANDORA whose
box is proverbial for being a collection of evil and mischief wits a mythical
woman amongst the Greeks. APHRODITUS, according to their mythology, had
sexual relations with three gods and a MORTAL being and CUPID was
the product of extra-marital sexual relationship between APHRODITUS and
the said MORTAL being. Amongst the Greeks, a woman had no rights; was
considered evil and was treated only as a source catering for satisfaction of
sexual lust. Abuse of woman even amongst the Romans was rampant. She was never
regarded as an independent respectable entity and her status stood degenerated
to that of a child-bearing slave who was never considered equal to man in any
respect. Encyclopaedia Brittaniea, 1984 Edition, Vol. 19, p.909. In ancient
Israel, men had proprietary rights over women and the father could even sell
his daughter into bond-service Encyclopaedia of Religion and Ethics, Vol.5,
p.724. In civilised countries like England and America, a woman was hardly ever
treated as an independent legal entity. By the rules of Common Law in England,
the legal capacity of a wife got sunk in that of her husband; husband and wife
were regarded as one person and a married woman was incapable of acquiring and
enjoying, independently of her husband, any property, real or personal. The age
of faith by Will Durrant, p.36
and Halsbury's Laws of England, Lord Simonds Ed. Vo1.19, p.822. It was only
through the Law of Property Act of 1925 that a married woman was recognise as
an independent legal entity and was Petted to own and enjoy property
independent of her husband. In the year 1935, another enactment called the Law
Reforms Married Women and Tortfeasors Act was promulgated which made a married
woman capable of entering into contracts as if she were a female sole. In
America, a married woman had no legal existence apart from her husband till the
19th Century Conds of Women by Nancy F.Cott, p.5. Needless to mention here that
all these rights which the West conceded to the women in the 19th and the 20th
Century stood conferred, by ISLAM, on the females in the beginning of
the 7th Century A.D. while I am on the subject, I also feel tempted to
reproduce a quotation from the Old Testament which is as under:---
"The woman that you had given me,
gave me this fruit and I ate it" and then God told Eve "I will
increase your pain in labour you shall deliver a child with pain; you shall be
attracted towards your husband and he shall rule over you. "
Old
Testament--Birth--Chapter 3.
8.
The Holy Qur'an also notices how girls were treated in the pre-Islamic
societies and the relevant Verses are as under:---
"When news is brought
To one of them, of the birth
Of a female child, his face
Darkens and he is filled
With inward grief!
With shame does he hide
Himself from his people,
Because of the bad news
He has had!
Shall he retain it with the
Sufferance on contempt
Or bury it in the dust?
What an evil choice
They decide on!
SURAH 16.58 AND 59.
"When the female (infant),
Burried alive, is questioned--
For what crime
She was killed.
SURAH
81.8 AND 9.
9.
This was then the contempt with which a female was treated in the pre-Islamic
societies and also in the contemporary extra-Islamic societies of the world.
10.
ISLAM hastened not only to recognise a female as an independent legal
entity, vested with all legal rights but also refuted the false conceptions
amongst the earlier societies that it was Eve (a woman) who had yielded to the
false temptations offered by the serpentine and it was thus site who was
responsible for the fall of man from heavens and all his consequent miseries.
It may be mentioned here that the word 'Evil' coined by the English is derived
from the word ' Eve'.
11. The Holy Qur'an declared, almost
1400 years ago, that it was not just the EVE but both the ADAM and the EVE who
had got mislead and lured by SATAN into eating the forbidden fruit. The
relevant Verses are as under,-
"Then began Satan to whisper,
Suggestions to their, bringing
Openly before their minds
And their shame
That
was hidden from them
Before
he said 'Your Lord
Only forbade you this tree,
Let ye should become angels,
Or such beings as live for ever'
And he swore to them
Both, that he was
Their sincere adviser."
SURAH 7.20 AND 21.
"Then did Satan make them slip
From the Garden, and get them out
Of the state of felicity in which
They had been. We said:
'Get ye down, all ye people,
With enmity between yourselves.
On earth will be your dwelling-place
And your means of livelihood
For a time."
SURAH
2.36.
12.
ISLAM thus contradicted and condemned the pre-Islamic contemptuous concepts
about women and lifted her to a place of honour and respect.
13.
ALLAH declared in Surah 30.21 and to the same effect is ALLAH's! revelation
through Surah 16.72 that He created mates for men from amongst themselves and thus declaring that all men
and women were alike and that it was not a case where man had been mach of
superior material than the woman. And
from this it also follows that although a man and a woman may be different from
each other in certain aspects but one was not better than or superior to the
other Surah 2.228 tells us that:
"Women shall have rights
Similar to the rights
Against them, according
To what is equitable
Only that men had a degree
Of advantage over the
In certain matters,"
SURAH 2.228.
ALLAH informs the
females that:
"Never will I suffer to be lost
The work of any of you,
Be he male or female:
Ye are members, one of another:"
SURAH 3.195.
To
the same effect are the Verses of Surahs 4. 124, 16.97 and Surah 40.40. How
much and what a woman means to a man and what is her place in the heart of a
man and how close according to the will of ALLAH she is to a man, is indicated
by the following verses: --"They are your garments And ye are their
garments."
SURAH
2.187.
"O ye who believe!
Ye are forbidden to inherit,
Women against their will.
Nor should ye treat them
With harshness, that ye may
Take away part of the dower
Ye have given them, --except
Where they have been guilty
On open lewdness
On the contrary live with them
On a footing of kindness and equity.
If ye take a dislike to them
It may be that ye dislike
A thing, and Allah brings about
Through it a great deal of good. "
SURAH 4.19.
"It is He who created
You from a single person,
And made his mate
Of like nature, in order
That he might dwell with her
In love. When they are
United, she bears a light
Burden and carries it about
Unnoticed. When she grows
Heavy, they both pray
To ALLAH their Lord, saying:
If thou gives us
A goodly child,
We vow we shall
Ever
be grateful."
SURAH 7.189.
"And among His Signs
Is this, that He created
For you mates from among
Yourselves, that ye may
Dwell in tranquillity with them,
And He has put love
And mercy between your hearts;
Verily in that are Signs
For those who reflect. "
SURAH
30.21.
14.
These declarations of ALLAH are further reflected and lucidated by the HOLY
PROPHET (S.A. W.), through His following sayings:---
(i)
"And God has forbidden you to disobey your mothers and to bury alive your
daughters."
BUKHARI SHARIF
(ii) "Whoever has a daughter
and he does not bury her alive and does not treat her with contempt and does
not prefer his son over his daughter then ALLAH shall bless him with
Heaven."
ABU DAUB.
(iii)
"Whoever has daughters and brings them up well; these daughters shall save him from Hell."
MUSLIM SHARIF
(iv)
"Do not manhandle the females."
IBN-E-MAJA.
(v) "ABI HURAIRA a companion of
the HOLY PORPHET (S.A.W.) and HAZARAT AISHA (R.A.) a wife of the HOLY PROPHET
(S.A.W.) reported the HOLY PROPHET (S.A.W.) saying that the best amongst you is
he who is best with the members of his family and also the best vis-a-vis his
females. "
(vi)
"A woman is the ruler of her husband's house and is also answerable for her acts vis-a-vis this rule."
SAHI BUKHARI:
And
one need not dwell much upon the oft quoted and well-known saying of the HOLY
PROPHET (S.A.W.) through which he had declared that heavens lay under the feet
of our mothers and one entitled most to a man's care and benevolence was his
mother.
15.
ISLAM also conferred on women, almost 1400 years ago, the right to hold and to
enjoy property, independent of their husbands; their fathers and thee brothers.
One of the indispensable conditions of a Muslim marriage is payment of dower
money which is either a specified amount of money or a specified item of
property. This payment of dower by the husband to his wife at the time of
marriage is, amongst other things, a recognition on the part of the husband, of
the wife's right to acquire, hold and enjoy property. Needless also to mention
here that ISLAM made a female a shareholder in the estate left behind by he
father, mother, husband and children. One of the Verses on the subject
reproduced as under:
"From
what is left by parents
And those nearest related
There is a share for men
And a share for women,
Whether the property be small
Or large,---a determinate share."
SURAH
4.7.
16.
I conclude this aspect of the judgment by summarizing hereunder, the status
conferred on the females by ISLAM---
(i) woman was granted recognition as an
independent, social and legal entity;
(ii) woman was declared worthy of the same honour
and respect to which man was
entitled;
(iii) it was declared that it was
not the woman alone who was responsible for the man's fall from heaven but it
was both, the woman and the mat who had fallen a prey to the deceit of SATAN;
(iv) woman was permitted the same
social and legal status which was due to a man except in certain specified
spheres which distinction had beet created by ALLAH not to lower the prestige
of a woman but for the smooth and proper running of the society, and finally
that
(v) woman
had same rights to acquire, hold and enjoy property as a mal possessed.
17.
An impression, though incorrect, is, however, in currency in certain quarters
that according to the Islamic set-up of society, men were the master and women
the slaves. Although the above-quoted Verses of the HOLI QUR'AN and the
AHADITHS the sayings of the Holy Prophet (S.A.W.) are sufficient to dispel such
an inference yet consider it necessary to discuss the matter in some further
detail. The relevant Verses quoted in this context are as under:---
"Men are the protectors
And maintainers of women,
Because Allah has given
The one more strength
Than the other, and because
They support them,
From their means
SURAH 4.34.
And women shall have rights
Similar to the rights
Against them, according
To what is equitable;
But men have a degree
Of advantage over them.
And Allah is Exalted in Power, Wise."
SURAH
2.228.
In
the first-quoted Verse, ALLAH declares that He had given more strength to the
men as compared to the females. Needless to mention here that only because one
was physically stronger than the other did not mean that the one stronger had
to be the ruler and the weaker in physical strength thus had to withdraw to the
position of the ruled. A guard employed by an individual to protect and defend
him does not become the master of his employer only because the guard happens
to be superior in physical strength. We know that the basic unit of the society
is the family and in a family a number of functions need to be performed. There
has to be someone to defend and protect the members of the family from any
threat to their safety or security. There also has to be someone in the family
who would go out and arrange food by hunting birds and animals as in the olden
days and by earning of livelihood as in modem terminology. The family also has
the nature urged towards reproduction, thus the necessity to produce and then
to bring up the new bores. Since it would not have been practically possible
for the same individual to have undertaken all these assignments, therefore, in
His ultimate wisdom, ALLAH ALMIGHTY distributed the performance of these
functions between the PAIR. As the security and the protection of the family
and doing the hunting and earning the livelihood for them required more
physical strength, therefore, the Creator bestowed the strength on one member
of the couple and granted the other the capacity to produce their like and to
bring them up. The men have one kind of obligations to discharge while the
females have certain other duties to perform. Thus, the man and the woman might
well be different from each other in some ways but it would be fallacious to hold
that this differentiation implied the superiority of one over the other. If men
have certain qualities reserved only for them, then the females also have
certain characteristics peculiar to them alone.
18.
It is also common knowledge that a group or a team of individuals which has to
exist and operate together, has to have a leader or a captain, otherwise
anarchical consequences could follow. Never has the captain of a team or a
leader of a group been considered the ruler. He might at best be the first
amongst the equals. And I may add here that never has it ever been mentioned by
ALLAH that men were the rulers and the women were their servants or slaves. As
teas been mentioned above, it is just a matter of division of labour and I may
also refer here to a saying of the HOLY PROPHET (S.A.W.) which is as order:--
"A
women is the incharge of the household and shall be questioned about the same.
SAHI
BOKHARI KITAB-UL-AMAARAH
19. A reference is
at times also made to the Commands of ALLAH where He, while granting
share to a woman in the inheritance, decided that a woman shall get half of
what a man gets. This is not because the man is twice a superior but because in
His infinite wisdom ALLAH had charged the man with the responsibility of
supporting and maintaining the family. This is so mentioned in SURAH 4.34
quoted above.
20. Curiosity and
rebellion is inherent in every human being which is examplified by the eating
of the forbidden fruit. And it is also ingrained in the nature of the mortals
that to him or her, grass on the other side of the fence always looks greener.
Therefore, I am not surprised to find females craving to be left outdoors to
become professionals and the men yearning for opportunities to be able to stay
home. The above notice is, however, the DIVINE division of labour and it is our
faith that Creator knows his creations the best (SURAH 67.14 (supra)) and it is
also a part of our faith that once He has ordained a matter then we must
unquestioningly submit to His will (Surah 33.36 (supra)).
21, However, ALLAH has, for our benefit explained that some
have edge over others in certain matters not only as between men and women but
also between men and men so that the system could be made to work and that we
could also be tested:
"Is it they who would portion out
The Mercy of the Lord?
It is We Who portion out
Between them their livelihood
In the life of this world:
And We raise some of them
Above others in ranks,
So that some may command
Work from others:
But the Mercy of thy Lord
Is better than the wealth
Which they amass."
SURAH 43.32.
"It is He Who hath made
You His agents, inheritors
Of the earth: He hath raised
You in ranks, some above
Others: that He may try you
In the gifts He hath given you:
For thy Lord is quick
In punishment: yet He
Is indeed Oft-Forgiving,
Most Merciful."
SURAH 6.165.
22.
Since this distribution of gifts and
blessings was with a purpose, therefore, ALLAH commanded us not to cry and
grumble over this DIVINE will. Reference is made to the following Verse:---
"And
in no wise covet
Those things in which ALLAH
Hath bestowed His gifts More freely
On some of you. Than on others: to men
Is allotted what they earn, And to
Women what they earn: But ask Allah of
His bounty: For ALLAH hath full
Knowledge of all things."
SURAH
4.32.
23.
It might be of consolation to us that this differentiation exists not only
between men and women and men and men but was there even amongst the Prophets
and Apostles. We know that one of them could ride the air; could understand the
language of the birds and animals and had control over JINS while another had
the gift of conversing directly with ALLAH and yet another was endowed with the
power to cure the blind and to put life into the dead. The following Verses
confirm the excellence which some Prophets had over the others:---
"Those apostles we endowed with gifts,
Some above others: To one of them ALLAH
Spoke; others He raised to degrees of
Honour; to Jesus the son of Mary We gave
Clear signs, and strengthened him with
The Holy Spirit ................. "
SURAH
2.253.
"And
it is your Lord that knoweth best all
Beings
that are in the heavens and on
Earth:
We did bestow on some Prophets more
And
other gifts than on others: and We gave
To
David the gift of the Psalms. "
SURAH
17.55.
And
yet We stand commanded to say that:---
" ... ...We make no distinction between
One and another of His messengers ...."
SURAH
2.285.
Therefore,
the conclusion is inevitable that this differentiation in certain matters,
amongst various creations, as noticed above, is not intended to make some
superior to the others or to make some the masters and others the servants.
24. Having this identified the
status and the placement of the women in our society; their rights and
obligations, I now proceed to the next question which requires attention i.e.,
how does ALLAH expect the females to conduct themselves indoors and outdoors
and also vis-a-vis the men.
25.
Amongst the basic urges inherent in every being, be it an animal or a human
being, one of the strongest is the sex. The Creator knew that if the human
beings were to be left unchecked and unguided in the matter of sex then the
same would lead to disasterous results. The unfortunate and the unpleasant
consequences faced today by the more permissive societies are unknown to none
and thus need not be mentioned in any detail. It was for this reason that we
find some emphasis in the HOLY QUR'AN and the AHADITHS of the HOLY PROPHET in
the matter of unbridled interaction between the two sexes which stand bestowed
with physical attraction for each other. Thus, the command to all human beings
to:---
"Guard
the private parts."
SURAH
23.5.
And;
"Nor
come nigh to adultery:
For it is a shameful deed
And
an evil opening the road
To
other evils."
SURAH
17.32.
It
may be appreciated that ALLAH did not just say that, "do not commit
adultery" but commanded that do not come near it. Therefore, what is
forbidden is not just the commission of ZINA fornication but all gestures,
every act and every conduct which could ultimately lead to it: It could be
noticed also from the verses which are being reproduced below that ALLAH
forbade all FAWAHISH shameful
and indecent deeds. These Verses are as follows:---
"
... .. ....come not
Nigh
to shameful deeds,
Whether
open or secret;
-----------------"
SURAH
6.151.
"Say: The things that my Lord
Hath indeed forbidden are:
Shameful deeds, whether open
Or secret; . . . . . . . . . . . "
SURAH
7.33.
" and
He forbids
All shameful deeds, .. . . . "
SURAH
16.90.
"Those who avoid the greater
Crimes and shameful deeds,
And, when they are angry
Even then forgive; . . . . . "
SURAH
42.37.
"Say:
Nay, ALLAH never
Commands
what is shameful:
Do
ye say of ALLAH
What
ye know not?"
SURAH
7.28.
Knowing
that a contact between man and woman was liable to lead to undesirable, nay,
horrifying results, ALLAH advised the women to stay indoors, as is apparent
from the following Verse:---
"And stay quietly in
Your houses, and make not
A dazzling display, like
That of the former Times
Of Ignorance; and establish
Regular Prayer and give
Regular Charity; and obey
ALLAH and His Apostle.
And ALLAH only wishes
To remove all abomination
From you, ye Members.
Of the Family, and to make
You pure and spotless."
SURAH
33.33.
And
further commanded that if at all the women are required go outdoors, then
following rules were to be observed:---
"And say to the believing women
That they should lower
Their gaze and guard
Their modesty; that they
Should not display their
Beauty and ornaments except
What must ordinarily appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty except
To their husband their fathers,
Their husbands' fathers, their sons,
Their husbands' sons,
Their brothers or their brothers' sons,
Or their sisters' sons,
Or their women, or the slaves'
Whom their right hands
Possess, or male servants
Free of physical needs,
Or small children who
Have no sense of the shame
Of sex; and that they
Should not strike their feet
In order to draw attention'
To their hidden ornaments.
And O ye Believers!
Turn ye all together
Towards ALLAH, that ye
May attain Bliss."
SURAH
24.31.
"O Prophet! tell .
Thy wives and daughters,
And the believing women,
That they should cast
Their outer garments over
Their persons when abroad:
That is most convenient,
That they should be known
As such and not molested:
And ALLAH is Oft-Forgiving,
Most Merciful."
SURAH 33.59.
The
caution that ALLAH expects the females to exercise when they come into contact
with men is further evident from the following Verses:---
"O Consorts of the Prophet! ye are
Not like any of the other women: If
Ye do fear ALLAH, be not too complainant
Of speech, lest one in whose heart is a
Disease should be moved with desire: but
Speak ye a speech that is just. "
SURAH
33.32.
".. ... ... ...And when ye ask his ladies
For anything ye want, ask them from
Behind a screen: that makes for greater
Purity for your hearts and for theirs.
---------------------------------"
SURAH
33.53.
26.
The intention of ALLAH and consequently of His PROPHET (S.A.W.) appears to be
to eliminate all possibilities which could attract men to women and H women to
men Who were not married to each other. On one of the occasions B HAZRAT
IBN-E-UME-MAKTOOM (R.A.) who was a companion of the HOLY PROPHET (S.A.W.) and
was totally blind came to the house of the HOLY
PROPHET (S.A.W.) who asked his wife HAZRAT UME-SALMA (R.A.) to observe
HUAAB (veil) to which HAGRAT UME-SAIMA (R.A.) replied that the gentleman was
totally blind and could not see her. The HOLY PROPHET (S.A.W.) remarked that
the gentleman was blind but She was not (SUNAIN ABI DAWOOD.) The HOLY PROPHET
(S.A.W.) had also prohibited the females from using perfumes when going
outdoors lest the fragrance attracted some men towards them (SUNAIN ABI DAWOOD
(KITAB-AL-RAJL).
27.
Having thus examined the commands of ALLAH regulating the conduct of the
females vis-a-vis their contact with men, the inference is obvious the ALLAH
and His PROPHET (S.A.W.) abhor any liaison between men an women except between
the legally-wedded spouses or between the ones in the prohibited degree and of
course the children and the ones who are too old. The logical conclusion would
obviously tie that pre-marital and extra-martial liaison between men and women
stand prohibited and bannished in an Islamic set-up Thus, any courtship or
romantic affairs between a man and woman other that between the ones married to
each other, are not permitted in ISLAM. The Verses of the HOLY QUR'AN are also
available which verify and sanctify the conclusion. They are as under:--
“………..But do not
make a secret contact with
Them except in terms
Honourable ..... ... .... ... "
SURAH 2.235.
"Also prohibited are women already married,
Except those whom your right hands possess.
Thus, hath ALLAH ordained
prohibitions
Against you: Except for these, all others
Are lawful, provided ye seek them in
Marriage with gifts from your property,---
Desiring chastity, not lust ........... "
SURAH 4.24.
"…...Lawful unto you in marriage are
not
4
Only chaste women who are believers,
but
Chaste women among the People of the Book,
'"
Revealed before your time---When ye give
Them their due dowers, and desire,
Chastity, not lewdness, nor a
Secret intrigues.............. "
SURAH
5.6.
28.
It is thus clear that making secret love affairs and taking paramours is a
conduct condemned and prohibited by ALLAH.
29.
Some of us decry the restrictions envisaged by the above noticed regulations as
a clog on one's basic rights. The exponents of this claim forget that no
rights, anywhere, even in, the most democratic of societies, are ever absolute.
Look at any Constitution of any country of the world and one would find that
every right guaranteed therein was subject to reasonable restrictions.
American, is perhaps the only Constitution where fundamental rights are couched
in unconditional terms but then the U.S. Supreme Court moved in to declare that
even if it was not specifically so stated that the rights could be subjected to
reasonable restrictions the State always had the right to impose reasonable
conditions thereon. This is what came to be called the POLICE POWERS of the
State. And then it was not an orthodox religious scholar of the East but a
political philosopher of the West who said that the man was only born free but
was in chains everywhere.
30.
We have before us the examples of those societies which could not maintain a
proper balance between the extent of the individual's freedom and the limits to
which the individual’s rights extended. The result is legalisation of carnal
intercourse against the order of nature; the so-called marriages between
brothers and sisters; unmarried 'wives'; unmarried 'husbands'; unwed mothers and parentless children. If this is freedom
then I am afraid this is only a freedom from all civilised norms of society and
a freedom to take human beings back into the animal world. Sex, cohabitation
and the instinct of procreation exist both, among animals and among the human
beings. The civilization, the DIVINE BOOKS and His MESSANGERS transformed, for
us, a mere animal cohabitation into an institution of marriage and
raised a temporary carnal relationship to an honourable and durable union
between men and women which also provided for a lasting bondage with the
products of this union.
31.
Some of us also clamour to break all shackles of morality and reasonableness on
the pretext of following the more knowledgeable and the more progressive West.
This, to my mind, is a false accusation on the people inhabiting that part of
the globle. Not many years ago, a rather strong Presidential candidate in one
of the countries of the West appeared to be found involved in an extra-marital
relationship with a lady. Not only that the gentleman had to withdraw from the
race but has in fact disappeared into oblivion eversince. Another gentleman
from the same country who stood nominated for the Judgeship of a superior Court
got accused of having, some times in the past, made passes on a female
colleague. The gentleman was put through a humiliating, worldly televised,
public test and was decree to be a judge only after he had cleared himself of
the charge as result of a marathon and a deeply embarrassing bout. These are
the values to which the West still holds stead-fastedly. It is just that the
common man in the streets of the West has got led astray which is definitely a
source of great concern and anxiety amongst the leaders of those nations. I am
tempted to quote some passages from two judgments of U.S. Supreme Court in
verification of this fact. The first case is Myra Bradwell v. State of Illinois
83 U.S. 442:---
“On the contrary, the civil law, as well as nature herself,
has always recognized a wide difference in the respective spheres and destinies
of man and woman. Man is, or should be, woman's protector and defender. The
natural and proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life. The constitution
of the family organization, which is founded in the divine ordinance, as well
as in the nature of things, indicates the domestic sphere as that which
properly belongs to the domain and functions of womanhood. The harmony, not to
say identity, of interests and views which belong or should belong to the
family institution, is repugnant to the idea of a woman adopting a distinct and
independent career ............"
The paramount destiny and mission of
woman are to fulfil the noble and benign offices of wife and mother. This is
the law of the Creator. And the rules of civil society must be adapted to the
general constitution of things, and cannot be based upon exceptional cases
………."
The
next case, and a more recent one, decided on 20-11-1961 is Gwendolyn Hoyt v.
Florida 368 U.S. 57:---
"………….Despite the enlightened emancipation of women
from the restrictions and protections of bygone years, and their entry into
many parts of community life formerly considered to be reserved to men, women
is still regarded as the center of home and family life………."
32.
This brings me to the consideration of the question of relationship between the
children and their parents and the obligations, if any, arising therefrom. The relevant
Verses of the HOLY QUR'AN are as under:---
"And
remember We took a covenant from
the
children of Israel to this effect:
Worship
none but ALLAH; Treat with
Kindness
your parents and kindred, and
Orphans and those in need; Speak fair
To the people; be steadfast in prayer;
And practise regular charity. Then did ye
turn back, except a few among you,
And ye backslid even now. "
SURAH
2.83.
"They ask thee what they should spend';
In charity. Say: whatever ye spend
That
is good, is for parents and kindred.
And orphans and those in want and for
Wayfarers. And whatever ye do that is
Good,---ALLAH knoweth it well."
SURAH
2.215.
"Serve
Allah, and join not any partners
With
Him: and do good---to parents,
Kinsfolk,
orphans, those in need,
Neighbours
who are near, neighbours
Who
are strangers, the companion by
Your
side, the wayfarer ye meet, and
What
your right hands possess. For
ALLAH
loveth not the arrogant,
The
vain glorious---. "
SURAH
4.36.
"Say:
'Come, I will rehearse what Allah hath really prohibited from you': Join not
anything as equal with Him: Be good to your parents ..... "
SURAH
6.151.
"Thy
Lord hath decreed that ye worship
none
but Him, and that ye be kind to
Parents.
Whether one or both of them
Attain
old age in thy life, say not to
Them
a work of contempt, nor repel them,
But
address them in terms of honour.
And,
out of kindness, lower to
them
the wing of humility, and say:
'
My Lord: bestow on them thy Mercy
Even
as they cherished me in childhood!.
SURAHS 17.23 AND 24.
"We
have enjoined on man kindness
To
parents ... .. ... ... ....."
SURAH
29.8.
"And
We have enjoined on man to be
Good
to his parents: In travail upon
Travail
did his mother bear him,
And
in years twain was his weaning:
Hear
the command, 'show gratitude
To
Me and to thy parents: To Me
Is
thy final Goal'.
SURAH
31.14.
"We have enjoined on man kindness to his
Parents: In pain did his mother bear him,
And in pain did she give him birth. The
carrying of the child to his weaning is
A period of thirty months. At length, when
He reaches the age of full strength and
Attains forty years, he says, ' O my Lord!
Grant me that I may be grateful for Thy
Favour which Thou hast bestowed upon me
And upon both my parents, and that I may
Work Righteousness. Such as Thou Mayest
approve; and be grievous to me in my issue.
Truly have I turned to Thee and truly
Do I bow to Thee in Islam'. "
SURAH 46.15.
"Then, when the son reached the age of
Serious work with him, he said: ' O my
Son! I see in vision that I offer thee
in sacrifice: Now see what is Thy view!
The son said: ' O my father! do as thou
Art commanded: Thou wilt find me, If
Allah so wills, one practising patience
And constancy'."
SURAH 37.102.
"O mankind! reverence your Guardian Lard,
Who created you from a single person,
Created, of like nature, His mate, and
From them twain scattered like seeds
Countless men and women; --Reverence
Allah, through Whom ye demand your
Mutual rights, and reverence the wombs
That bore you: for Allah ever watches
over you."
SURAH 4.1.
"O ye who believe! save yourselves
and your families from a Fire .... "
SURAH
66.6.
Having
read these Verses what becomes obvious is that in addition to the will of
ALLAH, a human being owes his creation and his existence to his parents. How
can one not remember the pain and misery that his mother had suffered while
conceiving him and then carrying him in her womb for nine months; the
discomfort that she had faced in delivering him and the suffering that she
experienced in bringing him up in that part of his age when he could neither
walk nor talk and when he could not even express or describe his wants? How can
one become oblivious of how his father had tolled day in and day out; how his
father had shed his blood and sweat and how he had remained untested and
un-slept so that he could earn enough to cater for his child's needs and to
make his child's life comfortable and secure? Should then this child, when he
comes of age, discard these benefactors and either dump them in the old
peoples' homes or throw them in the bin like one throws away the used and the
useless articles. Thus, if ALLAH commands us to be kind and gentle to our
parents then this command is not without a cause. In HAZRAT ISMAIL (A.A.), we find the right example of what a person
owes to his parents and how a person should willingly submit to the wish of his
parents even if it involved laying down of his life. Does it behave a person
when he is grown-up, to say that since he or she had become SUI JURIS,
therefore, she or he did not need to listen to his or her parents any more or
even to consult them in any matter concerning him or her?
33.
Needless to add here that one would notice from the above Verses that in the
matter of obligations that ALLAH casts on individuals, one's obligations and
one's gentle and kind conduct towards one's parents stands placed immediately
after the command to worship ALLAH and none other than Him. This is then the
divine indication of what importance ALLAH attaches to one's parents and to
one's obligations towards them.
34.
Besides SURAH 4.1 quoted above, SURAH 6.6 above-referred, is also an evidence
of the importance that ALLAH attaches to a family system This inference is
further strengthened when we find that when ALLAH orders us to be gentle and
kind to our parents, He also commands us to show similar kindness to the
AQRABEEN (the ones near and around us). ALLAH emphasises strengthening of the
family bondages because He knew that welfare of society lay in the protection
and preservation of the family system. The lessons of the societies which did
not and could not maintain this system and the consequent miseries that they
suffered and are still suffering, are not far to fine It is not surprising that
in the 1992 American Presidential Elections, one of the issues m which the
campaign of both the candidates revolved was the steps that were required to be
taken to restore the family system so that the fabric of their society could be
reconstructed on correct lines.
35.
Needless to mention here that inherent in the existence and the preservation of
social groups, the family system and the society, is the basic requirement for
each member of such groups, families and societies to be willing to surrender
some of his rights and desires and if every such member, claiming to be SUI
JURIS had to go his or her way without being prepared to sacrifice any of his
pleasures or desires then the societies shall get blown off on account of
disorder and anarchy.
36.
The cardinal principle of enjoying one's rights is to exercise them in a manner
that others did not get deprived of the opportunities of enjoying the rights
vesting in them. One's rights and where the nose of another begins. And also
that one is expected not to pursue one's pleasures in a manner that it causes
disgrace, embarrassment and at times even injury and death of another. The
parents sacrificed their rights and pleasures so that their children
flourished. Should the children then insist on exercising their rights and
pursuing their pleasure in a manner which sinks the parents in shame, is a
question not difficult to answer.
37.
It is said that the commands of ALLAH such as the ones regulating one's conduct
towards one's parents were only directory in nature and not mandatory because
the HOLY QUR'AN did not envisage
any corporeal penalties for the ones contravening them. The interpretation is
appalling. Should one, not pay ZAKAT religious tax or not keep fasts nor offer
prayers or should one worship others besides ALLAH because not doing or doing
all this did not entail corporeal punishment in this world? What an
appreciation of DIVINITY and His messages?
Even if it be presumed for the sake of discussion that the above noticed is just
a pious wish of ALLAH, or a command neither mandatory nor culpable,
then how many have we seen ignoring a wish of the ruler or violating his
command only because the breach was not punishable? And here we are talking of
a desire, even if it be just a desire, of the RULER of all rulers.
38.
Having found that as per the
Islamic Principles and Injunctions a woman was a social and legal entity
independent of her father, husband, brothers and the like; that she had the
same status as that of a man except in certain specified matters; that this edge which men had over
women in certain matters did not make the men the rulers and the women their
slaves; that no man whatever his capacity, had any proprietary rights over
females and also having found that ALLAH and His PROPHET (S.A.W.) did not
encourage women to leave their homes and to go outdoors and further that ALLAH
and His PROPHET (S.A:.) abhored unchecked intermingling of the two sexes: and
having thus as the parameters prescribed by ISLAM in this context, I now
proceed to determine whether a marriage contracted by a female otherwise than
through her WALI (guardian) was or was not valid in terms of the Islamic
Commands.
39.
Dr. Syed Raz-ul-Hassan Gillani, Advocate and Malik Muhammad Nawaz, Advocate,
who addressed the Court on behalf of the parents of the females who are patties to the marriages in question,
submitted that a NIKAH marriage contracted by a maiden female
even if she was an adult and sane, was invalid if this marriage had been
contracted without the consent of her WALI (guardian). Reliance was placed on the AHADITHS allegedly emanating from the HOLY PROPHET (S.A.W.)
which are as under:---
(There
is no NIKAH marriage without a
WALI (guardian).
The
women who contracts marriage without the permission of her WALI, her NIKAH marriage-is invalid, invalid, invalid. And if
the husband has cohabited, then he shall have to pay dower money. If there is
difference of opinion or if one has no WALI then the ruler is the WALI (guardian). Reliance was placed on
the AGADITHS allegedly emanating from the HOLY PROPHET (S.A.W.) which are as
under:--
(There is no NIKAH marriage without a WALI (guardian.))
The women
who contracts marriage without the permission of her WALI, her NIKAH marriage
is invalid, invalid. And if the husband has cohabited, then he shall have to
pay dower money. If there is difference of opinion or if one has no WALI then
the ruler is the WALI.
Reference
had also been made by these learned Advocates to various other Works and
Commentaries carrying the same view. Most of the authors of these authorities
belong to SHAAFI and MALIKI Schools of Thought. The learned counsel also
attempted to show that some Jurists, though the followers of IMAM ABU HANIFA
also held the same view. An effort was also made to demonstrate that Muhammad
Imtiaz's case decided by the Federal Shariat Coup and reported as PLD 1981 FSC
308 proceeded on inaccurate authorities and was thus not a good law. The
learned counsel had also placed reliance on certain judgments of the Supreme
Court but I am not noticing the same because they were not specifically
relevant to the question is issue.
40.
Mr. Khalid Ishaq, Advocate, Dr. Abdul Basit, Advocate and Mrs. Asma Jehangir,
Advocate who led the arguments in defence to the marriages contracted by the
girls without intervention and the consent of their WALIS, however,
contended that the FIQAH being followed generally in sub-Continent and in
Pakistan was HANFI FIQAH and that IMAM ABU HANIFA (R.A.) was of the considered
opinion that the above-noticed AHADITH„ relied upon by the other side were not
sound and had not been followed by IMAM ABU HANIFA (R.A.). These learned
Advocates also brought out books and Works in support of the view canvassed by
them.
41.
Having examined the literature produced by both the sides and also having
considered the opinions of the AAIMMA (Leaders of different Schools of thought)
I find that the AAIMMA are rather sharply divided on the issue in question.
According to the SHAFI, MALIKI and the HUMBALI Schools, the marriage of an
unmarried girl even though she was sane and adult, was invalid if she had
entered into such a marriage without the consent of her WALI guardian) but if
cohabitation had ensued as a result of this marriage, then the man was required
to pay proportionate dower money to the female and further that the man and the
woman involved in this cohabitation were not liable to be punished for
fornication.
42.
According to IMAM ABU HANIFA (R.A.) and the SHIA Schools of thought, a maiden,
if adult and sane, was competent to enter into a marriage and did not require
the consent of a WALT for its validity. Some of the later HANIFIS (however)
added that a marriage contracted without the consent of a WALI would be valid only
if the man qualified as a KUFW of the female and also if the dower fixed in
respect of this marriage was not inadequate. These Scholars and Jurists further
opined that if these two conditions relating to KUFW and dower money did not
stand satisfied then the WALI of the bride was entitled to approach the QAZI
Court of Law and could demand annulment of the same. It may be mentioned here
that KUFW is stated to mean, inter alia, that the man should come from a
background similar to that of the woman and should have a status in the matters
of education, wealth and family background which is similar to that of the
female. To demonstrate the SHIA view, reliance is placed on MARRIAGE, ACCORDING
TO FIVE SCHOOLS OF ISLAMIC FIQA PART-2 by Allama Muhammad Jawad Maghniyyah. The
SHAAFI and the MALIKI view can be found, amongst others, in TRIMZI SHARIF
SUNNAN ABU DAWOOD, SUNNAN IBN-E-MAAJA, ALMUSTRADRAKALASSAHIHAIN by Imam
Abne-e-Abdullah Al-Hakim Naishapuri, NEEL-ULAUTAR and SHARAH MUANI-AL-AUTAR.
43.
Inter alia, FATAAA-ALMGIRI, FATAH-UL-BART, TUHFAT-ULAHWAZI SHARAH
FATAH-UL-QADEER by Ibn-e-Humman and AL-BINAI FETE SHARAH-AL-HIDAYA of Allama
Aaine, are the Works carrying the above-noticed HANAFI view,
44.
MUHAMMADAN LAW, RASSAIL-O-MASSAIL by Syed Abul-A"la Modoodi,
FATAH-UL-BART, A DICTIONARY OF ISLAM by Thomas Patric Hughas and the CODE OF
MUSLIM PERSONAL LAW by Dr. Tamil-ur-Rehman, notice the difference of opinions
between the various Schools of thoughts as abovementioned.
45.
SARAKHSI who belonged to SHAAFI School explains in his book ALMABSOOT that the
insistence of the SHAAFI view of the consent of WALI was based on the reason
that the young girl intending to get married may not be able to take proper
care of KUFW and adequacy of dower. Similar is the view of IMAM SHAH WALI ULLAH
MOHADDIS DEHLVI expressed
through his book HUJATUL-BALAGHA.
46.
NEEL-UL-AUTAR makes a mention also of IMAM ABU-YOUSAF'S view according to which
if a marriage without WALI was amongst the KUFW then it was valid otherwise, it
was liable to be annulled at the instance of the WALI Similar view also finds
mention in Dr. Tanzil-ur-Rehman's Code of Muslim Personal Law as also in
MUAARIF-UL-QUR'AN by Maulana Mufti Muhammad Shaft.
47. Dr. Muhammad Rawass Qallaji of Dharaan
University of Saudi Arabia has compiled the FIQAH of 'various CALIPHS (R.A.) In
his book FIQAH HAZRAT UMER (R.A.), while he mentions that HAZRAT UMER (R.A.)
was of the opinion that a marriage without WALI was invalid yet he quotes a
case from HAZRAT UMER'S Court that in respect of a female who had contracted
marriage without her WALI, the CALIPH had ordered that she be punished with 100
stripes. No indication is available as to whether the marriage contracted by
this female had also been annulled by the CALIPH. The possibility thus could
not be ruled out that the CALIPH punished the female for having entered into a
marriage in a manner which was not proper and then permitted the marriage to
continue. In FIQAH HAZRAT ALI (R.A.) we find at page 751 that HAZARAT ALI
(R.A.) was also rather strict about females getting married without the consent
of their WALIS. But two cases decided by CALIPH ALI (R.A.) are also quoted: one
relating to a lady by the name of Salma from AIZULLAH tribe where the marriage
had been arranged not by a male guardian but the mother of the girl and since
the marriage had got consummated the CALIPH ALI (R.A.) did not annul the same.
Then there was the case of a girl by the name of BEHRIAH who was the daughter
of one HANI-BIN-QABISA and had on her own entered into marriage with
QAQA-BIN-SHORE and on a complaint trade by the father of the girl, the CALIPH
ALI (R.A.) did not annul the marriage because cohabitation has taken place.
About this Behriah's case there is also a tradition that her marriage had been
arranged by her mother to which the father was not a party. This case is also
reported by SARKHASI in KITAB-AL-MABSOOT.
48.
Dr. Syed Riaz-ul-Hassan Gillani, Advocate made an effort to show that the
above-referred Federal Shariat Court judgment was not binding on this Court. In
view of the provision of Article 203-GG of the Constitution, I cannot accept
this view.
49. The position which thus emerges is that:---
(i)
MALIKIS, SHAFES and HAMBALS find that the marriages of the type in question,
without WALIS, are void;
(ii)
HANAFIS and SHIAS hold just the opposite view;
(iii) according to the AHDITH
mentioned at No.(ii) above, such a marriage is void but if cohabitation takes
place then proportionate dower has to be paid and the two are not guilty of
fornication. If marriage was void then why dower?
(iv)
then there are other Jurists and Scholars who declare that a marriage without a
WALI is not void if contracted with a KUFW and with adequate dower money;
(v) HAZRAT UMER (R.A.) only punished the girl but
there is no evidence that he
annulled the marriage;
(vi) HAZRAT ALI (R.A.) also did not annul the
marriage without a WALI where it had been consummated;
(vii) the Federal Shariat Court does
not consider such a marriage as void and finally that
(viii) the authenticity of the
AHADITH in question is in serious doubt.
50.
There is thus a division amongst the AIMMAH, the Jurists and the Scholars of
the UMMAH (the Muslim) on the issue in question as a result of which the
veracity of soundness of the AHAWTH to question becomes hazy and open to doubt.
51.
But there are certain other matters relating to the controversy under
adjudication which are open to no doubt and are incontrovertible i.e. the
revelations of ALLAH on the subject which stand quoted by me (supra). The
position obtaining therefrom is as under:---
(a) The
females should ordinarily stay indoors;
(b) if a woman needs to go outdoors
then she must extend her veil over her face; must cover her chest and should
not indulge in any act which could attract men, and that,
(c) if it becomes inevitable for her
to talk to a man then she should not talk in a mild and a pliable tone and
further that if someone needs to ask her for something then she should talk to
the man from behind a screen or a veil.
52. Then there is the command of ALLAH:---
(a) not to
go near fornication or adultery;
(b) not to
indulge in FAWAAHISH (shameful, immoral and indecent deeds), and finally
(c) the
prohibition about pre-marital or extra-marital relationships and the secret courtships and secret marriages.
53.
The detailed discussion supra, reveals also that children are ordained to I
obey their parents; to be kind to them; not to offend them by words or by deeds
lit and not even to say ' UFF' (expression of displeasure) if the parents were
to say something which was not to their
liking.
54.
The Verses of the HOLY QUR'AN noticed in the earlier part of this judgment
further demonstrate the recognition granted to the FAMILY SYSTEM and the respect and importance which ALLAH and His
PROPHET attach to it.
55.
There is yet another aspect of this matter. Societies are known to be cautious
and careful in the matter of admitting strangers to their fold. The laws
recognizing and consequently granting the right of pre-emption provide ample evidence of the existence of this norm
amongst the human beings. If an outsider is ought to be introduced in a
vicinity or a locality, the law of pre-emption confers a right on the ones in
the neighbourhood to decide whether they would or would not accept such a
person in their midst. Needless to state that a family is a much more closely
knit entity than a neighbourhood and the members of a family have far greater
rights and claims on each other than the neighbours in a locality. If the
neighbours have legal rights to the matter of outsiders entering their locality
then how could it be said or maintained, legally, logically, socially or
religiously that the members of a family would have no such right in the matter
of strangers being brought into the household either in the form of a son in
law or the form of a daughter-in-law?
56.
This being so, let us now examine the marriages which are in dispute before us.
Take the case of Ms. Saima. Her family had employed her alleged husband as a
tutor to coach her brother and thus trusted him with access to their household.
She carne into contact with him. Says she developed a liking for him. The two
then established a secret liaison and instead of approaching their respective
families or parents to persuade them to accept the two in their respective
families, they surreptitiously contracted a secret marriage. More than a month
after this alleged marriage, Ms. Saima suddenly disappeared from the house to
the horror of the family who ultimately found her parked in a destitute home.
57.
Which part of this entire exercise is in consonance either with the
abovementioned commands of ALLAH and his PROPHET (S.A.W.) or in conformity with
the dictates of the established norms of our society? When we put this question
Mr. Khalid Ishaq, Advocate, he frankly conceded that he did not approve of such
a conduct either on the part of Ms. Saima or on the part of her husband:
58.
This brings me to the conclusions that I draw from all that has been discussed
by me above and the same are as follows:---
(a) invalidating a marriage entails
rather serious and even penal consequences not only for the wife and the
husband but even for the innocent children born out of such a union. Such a
declaration could, therefore, not be given unless material would, available
which was of an unimpeachable character admitting of no doubt. The authenticity
of We AHADIT relied upon for the
purpose is tent incontrovertible. Therefore, it could not be said that the
marriages in question were invalid
and I hold accordingly; I
(b) the consent of tire wan and tire woman who art
,getting married is and indispensable
condition for the validity of a marriage and a WALI has no right to grant such a consent on behalf of the woman
without her approval;
(c) ISLAM abhors establishment of liaison between
men and women and courtships, pre-marital
relationship, secret friendships and secret marriages are forbidden in ISLAM;
(d) the parents and the family have a definite
importance and place in the social
set-up ordained by ALLAH. Although, it is not possible far me to hold that the
parents or the family could have a right to force someone to marry a particular
individual yet they have a right to be consulted and their wishes were entitled
to respect;
(e) the
concept of a young girl or a boy for that matter, venturing out in search of a spouse is alien to the teachings of
ISLAM and even otherwise this scheme of
HUSBAND-SHOPPING which obviously involves test in and trial of the desired
material is fraught and pregnant with dangers and cannot be viewed with favour;
(f) instances are not unknown where certain person
or class of persons, for certain
acceptable reasons, do not go out shopping. They notify their requirements and
preference to their gents who look for the required items; report back about whatever is available in the required
category and the concerned person then makes the final choice of whatever appears
attractive to him from the available lot. In the light of ISLAMIC INJUNCTIONS
and the established social and moral norms of our society, this appears to be
the ideal scheme for choosing marriage partners. Let the elders of the
family---males or females do the search and even research and then let whatever
is available be put before the boy or the girl, as the case may be, who should
then have the final
choice in the matter. This procedure would also be in consonance with respect
and dignity of all concerned and would even eliminate crime which erupts where marriages are contracted in a
manner which' injures honour and
pride;
(g) discretionary relief in equity is available
only to those who approach a court of Law with clean hands. Persons having
acted in a manner not honourable or
having acted in breach of the established social and moral norms of the
society, disentitle themselves to any relief in equity. As has been mentioned
above, the persons who are parties to the kind of marriages which are in
question, are ones who have contravened the wishes of ALLAH; who have
offended their parents and families and who have violated the established
values of the society. It is, therefore, declared that such like persons are
not worthy of any relief in equity;
(h)
There may be cases where the parents or the elders or the family have either
failed to discharge their obligations in the matter of looking for marriage
partners for their children or are intentionally avoiding it for interior
motives. In such a case, any such child shall have a right to approach the
competent Court complaining of this inaction on the part I of his/her parents
etc. and if the Court finds that the elders etc. are in default, then the Court
shall grant a certificate to that effect whereafter no blame shall lie on such
a person he or she gets married, of his or her own accord;
(i) authority is also available in
ISLAM that in case of a dispute between the WALT and the child, in the matter
of the choice of a spouse, the QAZI Court of Law can be approached who shall
then resolve the issue. It will, therefore, be open to a person, if his or her
parents do not accept the choice made by him or her having acted not in breach
of social or religious values, to approach a Court of Law for the settlement of
this dispute;
(j) the menace of SHIGHAAR (giving a girl in
marriage to someone and taking a girl in return and the menace of giving
daughters and sisters etc. in marriage for money, are rampant in certain
sections of our society. ALLAH condemns such-like practices. Any girl wits is
being forced into such a marriage shall also have right to approach a Court of
Law to seek protection and if the Court finds that the girl is being bartered
away, then the Court shall pass necessary orders including an order absolving
the girl from her obligations towards such-like parents and elders etc.;
(k) it has been held by me above that
parents or the family are not absolute aliens to the institution of marriage.
In one of the cases before us, the girl had allegedly eloped with a Christian
driver. The situation though could be reverse also in so far as it relates to
the matter of faith etc. There are thus cases where the boy or the girl act on
sheer momentary impulses which decisions are patently not in their interest and
which a also a cause for shame and disgrace to the whole family. In such
situation, the aggrieved person shall have a right to initiate proceeding, in
the competent Court seeking annulment of such a marriage. The Court shall then
have the power to annul a marriage if after hearing concerned; after taking
into account the wishes of the family and after considering all the attending
facts and circumstances, to the exercise its parental jurisdiction, it finds
that it shall be in the interest of ; concerned if the marriage in question was
not permitted to continue The aggrieved person, for the purposes of these
proceedings, shall me the parents; in their absence, the brothers and in their
absence, any falling within the
prohibited degree of the concerned girl as prescribed by ISLAM. In providing this remedy, I am
moved and fortified by fact that law permits rescission of contracts which are
against morality and against public policy etc.; and by the fact that marriage of HAZRAT ZAINAB (R.A.) who was a
cousin of HOLY PROPHET MUHAMMAD (S.A.W.)
and had been married off HAZRAT ZAID (R.A.) who had been a slave, had been
dissolved the instance of HAZRAT ZAINAB (R.A.) on account incompatibility of
the parties, and finally by the fact that it w
eliminate cases where aggrieved persons, finding no remedy, resort extreme measures by taking law into their
hands.
59.
Premarital and extra marital liaisons; courtships, secret friendships, a secret
marriages are not only offensive to the Commands of ALLAH but are a one major
source of serious crime in our society. I would, therefore, recommended that
the Executive and the Legislature examine the desirability of enacting la to
take care of this menace and to provide remedies as mentioned by me para. 58
above. I would further recommend that the Legislature also consider
advisability of making such-like immoral relationships and secret marriages
etc., a penal offence.
60.
Till such time that the Legislature moves in the matter, the remedies that have
been made available, in the larger public interest of the society terms of
para. 58 above, shall lie before the Family Courts of the concert areas and the
decision and the orders etc. passed in these proceedings or a result of the
same shall be subject to appeals etc. as if they were of and judgments etc.
passed by the Family Court in exercise of jurisdiction conferred on them 'under
the West Pakistan Family Courts of 1964.
61. Since I have held that the marriage between Ms. Saima
Waheed Arshad Ahmad cannot be declared to be invalid and since Ms. Saima Waheed
had started residing in ' DASTAK' of her own free will, therefore, she could be
said to be in illegal custody at the said 'DASTAK'. She is, therefore, declared
to be at liberty to reside wherever she pleases.
62. Criminal Miscellaneous No.425/H-96 filed by Hafiz Abdul
Waheed is disposed of in these terms.
63 Since I have declared that Ms. Saima Waheed is at liberty
to stay wherever she pleases,
Criminal Miscellaneous No.435/H-96 and W. P. No.6468/96 filed by her seeking
the said relief have become infructuous and are disposed of accordingly.
64. Having decided the issue in question, all other matters
shall be placed before a learned Single
Bench for disposal in accordance with law.
65. Before parting with this judgment, I would like to bring
on record my deep appreciation of the
valuable assistance rendered to us by all the learned counsel representing
various parties before us, especially Mr Khalid
Ishaq, Advocate, Dr. Syed Riaz-ul-Hassan Gillani, Advocate, Ms. Asma
Jahangir, Advocate, Malik Muhammad Nawaz,
Advocate and Dr. A. Basit, Advocate.
(Sd.)
(Khalil-ur-Rehman
Ramday),
Judge.
ORDER OF
THE COURT
For
reasons stated in our respective judgments it is held and declared as per
majority (Malik Muhammad Qayyum and Khalil-ur-Rehman Ramday, JJ.) that the
marriage in question contracted without the consent of the Wali is not invalid.
In
this view of the matter, Criminal Miscellaneous No.425-H/96 is dismissed while
Criminal Miscellaneous No.435-H/96 and Writ Petition No.6468/96 are disposed of
as having become infructuous.
All
the other matters shall be placed before a learned Single Judge of this Court
for decision in accordance with law.
(Sd.) (Sd.)
Malik Muhammad Qayyum, Ihsan-ul-Haq
Chaudhry,
Judge. Judge.
(Sd.)
Khalil-ur-Rehman Ramday,
Judge.
M.B.A./A-120/L Order
accordingly.
