Fixing age limit to enter into marriage by state not un-Islamic, says Shariat Court

KARACHI: The fixing of an age limit to enter into marriage by a state or a government was not against the injunctions of Islam as laid down in the Holy Quran and Sunnah, the Federal Shariat Court (FSC) held in its judgment on Monday.

The court observed that setting a minimum age for marriage, that is an act which is “mobah” permissible and not “farz” (mandatory) like marriage, is in accordance with the injunctions of Islam because fixing minimum age limits provides reasonable time period to girls to complete basic education at least which normally helps in developing mental maturity “Rushd” in person.

Dismissing a petition against vires of Sindh Child Marriage Restraint Act 2013, the FSC comprising Acting Chief Justice Dr Syed Mohammad Anwar and Justice Khadim Hussain Tunio observed that the act of the legislature to fix a minimum age for marriage is also in accordance with injunctions of Islam as laid down in Quran and Sunnah from the aspect of principles of goals of Shariah or Maqasid Al-Shariah and other principles set out by the Holy Quran and Sunnah, according to which a wife is supposed to protect the rights, property and honour of her spouse and the husband being Qawwam is duty-bound to protect the rights, property and honour of his wife.

The Shariat Court observed that the protection of the physical and mental health of a citizen is the duty of the Muslim state in light of principles of goals of Shariah, firstly under the goal of the protection of the life of its citizen and secondly under the goal of protection of intellect of its citizens.

It further observed that according to the principle of Sadd-uz-Dara’I, i.e. blocking means that cause harm, the state through legislation can take steps and set certain minimum thresholds for undertaking an act to protect that person or category of persons and such steps taken by the state fall within the category of Masalaih Mursalah, i.e. the consideration of public interest.

The court observed that according to Sunnah there were certain conditions which do not allow a person to solemnise marriage even after the age of maturity. Regarding the argument of the petitioner that fixing the age would affect old, aged parents who wanted to marry off their underage daughters in their lives, the court observed that this point can be considered relevant in some exceptional situations, but it is not the main point in the petition.

It said that these questions however are related to our society with some aspects in exceptional conditions and that can only be resolved properly by the elected representatives through legislation if they want to.

The court observed that the Sindh government in this regard is the relevant forum to discuss the issue to legislate a provision in this law to tackle genuine exceptional situations in society. It also observed that the act of setting the minimum age limit for marriage and the setting the age for an adult eligible to solemnise marriage vide impugned Section 2 (a) of the Sindh Child Marriages Restraint Act 2013 are not against the injunctions of Islam as laid down in the Holy Quran and Sunnah. The court dismissed the petition.

Petitioner Ali Azhar had challenged the Sindh Child Marriages Restraining Act 2013 terming it against the injunctions of Islam and the constitution. He had requested the high court to declare the vires of the act that set 18 years as the minimum age for marriage to be against the injunctions of Islam and against the constitution so that they would not be applicable to Muslims. He also sought a declaration that the definition of a child given in the Sindh Child Marriages Restraining Act’s Section 2(a) would be governed or changed with the sign of puberty for Muslims.

Ali had submitted that he had married Arzoo Fatima on October 13, 2020, after she converted to Islam, but she was not allowed to live with him due to the Sindh Child Marriages Restraining Act 2013. He said that the vires of the law were against the injunctions of Islam and therefore not applicable to Muslims. He further submitted that the family judge had to decide each and every issue of Muslim marriages in the light of the Muslim law according to their religion.

He said he had filed a suit in a family court for the restitution of conjugal rights, but it was dismissed by the court and the appellate court. He submitted that under Muslim laws, the right to marriage is established when the spouses reach puberty age. He requested the court to set aside the family court order.