ISLAMABAD: The Islamabad High Court (IHC) declared that a marriage contract in which one of the parties is a child under the age of 18 is a contract executed for an unlawful purpose and is void ab initio. Justice Babar Sattar, who authored 56-page judgment, wrote; “A child is defined as a person who has not attained the age of 18 years. A child is required to be placed in somebody’s care whether it is a parent or guardian or other caregiver appointed on behalf of the state. Complete agency to grant informed consent for purposes of entering into contract, including, inter alia, a marriage contract cannot be attributed to such child.”
Mother of Swera Falak Sher, who was born on March 07, 2006, had filed the petition seeking the recovery of her daughter. Later due to the court order minor (Swera) was produced before the Court. She stated in the court that she had married respondent No. 1 and was unwilling to go along with her mother to her family home. This Court then ordered that the Minor be lodged in Dar-ul-Aman.
A female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into a marriage contract merely because she manifests the physical symptoms of having attained puberty. In view of provisions of the Muslim Family Law Ordinance, 1961, Islamabad Capital Territory Child Protection Act, 2018 and PPC, when read together, while being guided by principles of Islamic jurisprudence and Principles of Policy enshrined in the Constitution, (including state’s obligation to protect the woman, the child and the family), the test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth.
Copyright Business Recorder, 2022
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