Marriage able ages & penalization on early marriages in Pakistan: a critical analysis in the light of Islamic law
Keywords:
Fixation of marriageable age, Penalization, Islamic Law, Early child marriage, Early child marriage law
Abstract
The fixation of the marriageable age and penalization on the early marriages have a significant opposition to Islamic Laws, which is the reason for the novel issues in society. This article analysis the subject considering the Islamic Laws. It addresses the main question that whether the law regarding the fixation of the marriageable age and penalization on the early marriages in Pakistan comply with Islamic Law? For this purpose, the laws of Pakistan, especially, and International Laws and other jurisdictions, generally, have been reviewed to highlight the gaps and disparities. The current findings show that related law on penalization and the fixation of the marriageable age is inadequate and is based on ancient Indian laws, which does not comply with Islamic Law. It concludes that Pakistan needs an amendment in the fixation of marriageable age under Islamic Law. These findings aim to help lawmakers to amend practicable preparedness strategies. The doctrinal legal research methodology has been followed. It adopts critical and analytical method along with qualitative conduct of the research.
References
The Child Marriages Restraint Act 1929, s 2(b): “child marriage means a marriage to which either of the contracting parties is a child”
Ibid. S 2(a): ‘minor’ means a person of either sex who is under eighteen years of age
“(3) Save as otherwise expressly provided in this act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, as far as applicable and with the necessary adaptations, continue as the law of each of the new dominions and the several parts thereof until laws make another provision of the legislature of the dominion in question or by any legislature or other authority having power in that behalf”
“Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to [one month and fine of one thousand rupees” s 5, Child Marriage Restraint Act 1929; in Sindh Child Marriages Restraint Act 2013; 2-3 years of rigorous imprisonment with a fine is prescribed; in Child Marriage Restraint Act 2015; (Punjab amendment), six months and a fine of fifty thousand rupees or both are prescribed
Mauj Ali v. Syed Safdar Hussain Shah and another, where she contracted her marriage by herself and without her guardian’s permission. Supreme court dismissed the contention of the guardian that she is below the age of sixteen years. Thus, her marriage is in contravention of the Child Marriage Restraint Act 1929, and held that she is pubescent, and such a marriage is permitted in Muḥammadan law. [1970] SCMR 437
Mst. Bakhshi v. Bashir’ Aḥmed and another: PLD [1970] SC 323
It says: …. the girl being underage by 16 years was, because of the Child Marriage Restraint Act 1929, incompetent to contract a marriage. Indeed, the said Act does not permit the marriage of a girl below the age of 16 years. However, if any girl below the age of sixteen marries in violation of that law, the marriage does not become invalid in that scene. However, the adult husband contracting the marriage or the persons who have solemnized the marriage may be held criminally liable
Muhammad Iqbal v. The state: PLD [1983] FSC 9
Allah Bukhsh v. Safdar and others: [2006] YLR 2936
‘Arrest against child marriage’ retrieved from accessed on 18 October 2021
’Abu Al-ḥusaīn ’Aḥmed ’ibn Muḥammad ’ibn ’Aḥmed Al-qudūrī Mukhtaṣr ul qudūrī (Krachi 2011) 485
’Abū Bakr Muḥammad ’ibn ’abū Sahl Al-sarakhasī Al- mabsūṭ (Bairūt 1978) 212
Zain ul- dīn ’ibn Nujaīm, Al- baḥr al- rāʼiq sharḥ kanz al-daqāʼiq (not known) 127
’Abū al-Walīd Muḥammad ’ibn ’Aḥmad ’ibn Muḥammad ’ibn Rushd al-ḥafīd Bidāyat ul-mujtahid wa nihāyah ul-muqtaṣid (Cairo: 2004)34
Muḥammad ibn ’Idrīs al-Shāfi’ī Al-’umm (Beirut: 1990) 163
Muwafffaq ud-dīn ’Abū Muḥammad ʻAbdullāh ’ibn Qudāmah al-maqdisī Al-mughnī (Cairo: 1968) 51
‘Abdul Rahīm ’Ashraf Balūch, Doctor Maḥmūd ‘Aḥmed Ghāzī ’Aḥkām-e-Bulighat (first published 1990, Islamabad) 121
Aparana Bhat, Aatreyee Sen and Uma Pardhn, child marriages and the law in India, human rights law network (2005) India
Andrea Büchler and Christina Schlatter, marriage age in Islamic and contemporary Muslim family laws a comparative survey” [2013], (EJIMEL), Vol. 1
Susanne Louis B. Mikhail “child marriage and child prostitution: two forms of sexual exploitation”, [2002], vol. 10, no.1
Marriage, the death penalty and terminologies and their qualifications.
The Universal Declaration of Human Rights 1948, and two covenants of 1966 on economic, social, and political rights
UDHR “article 16 of men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to find a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution; marriage shall be entered only with the intending spouses’ free and full consent; the family is the natural and fundamental group unit of society and is entitled to protection by society and the state”. Retrieved from https://www.un.org/en/about-us/universal-declaration-of-human-rights accessed on 3-11-2021
Mudassara Sabreen, Samia Maqbool Niazi child marriage and the right of option of puberty: a comparative study of Islamic and Pakistani law Fikr-o-Naẓar Vol:56, Issue: 3-4, 121
Dr Farrukh Tahira, “Pakistan main jabri shadion ky asbāb wa muḥarakāt shara‘i wa qanūni tanazur main”, Al-Tabyīn, [2019], Vol. 3, Issue 1
Ludo Rocher Indian response to Anglo Hindu law, journal of the American oriental society July-September 1972 92 (3)
‘Abdullah bin Shubramah Al Kūfī was a prominent Qāḍī in Kūfah and Yamen. He died in 144 A.H
‘Ali bin Sa‘īd bin Ḥazm bin Ṭālib known as ’Imām ’Ibn Ḥazm al-Ẓāhirī, Died in 28th Shaban 457 A.H Retrieved from assessed on 12 Sep 2022
’Abū Bakar ‘Abdul Raḥmān Bin Kaisān ’Al Aṣam. A prominent m‘autazili jurist of Basra. Died on 200 A.H. Retrieved from https://iranicaonline.org/articles/asamm). Assessed on 12 Sep 2022
Deb, Shakti, ‘a critical analysis of child marriage law in India with special reference to Hindu law’, (2012) retrieved from accessed on 1 July 2022
IPC 1860, s 375
Mrs Marcus B. Fuller “the wrongs of Indian womanhood” (New York 1900) 18
Padma Analog-Mcginn “women's consciousness and assertion in colonial India, gender, social reform and politics in Maharashtra, c.1870-1920. (Indian Social Reformer, 1889) Vol.9 250
Mujīb ’Aḥmed “sārdā bill aūr qānūn ’insidād shādi bachgān, musalmānān e hind kā rad e ‘amal aīk ja’īzah” [1999] 101
"Whoever performs, conducts, or directs any child marriage shall be punishable with simple imprisonment which may extend to [six months and fine of fifty thousand rupees]". (CMRA 1929, S 5); “2-3 years of Rigorous Imprisonment with a fine is prescribed”. (Sindh CMRA 2013)
Al-Qur’ān 6:4
Translation by the Abdullah Yousuf' Alī, retrieved from Surah An-Nisa, سورة النساء | Chapter 4, سورة ٤ | Quran Yusuf Ali, قرآن يوسف علي assessed on 12-9-2022. (Hereinafter referred to as translation by 'Abdullah Yūsuf' Alī)
Ibn ‘Ābidīn, Muḥammad ’Amīn Radd ul-muḥtār ‘alā al-durr Al-mukhtār (1992, Bairūt) 612
The Constitution of the Islamic Republic of Pakistan [1973] article 11 (3)
Employment of Children Act 1991, s 2 (iii)
CRC 1989, Article 1
Ibid
Al-Qur’ān 59:24
Translation by ‘Abdullah Yūsuf ‘Alī
Abū Al-ḥasan Muḥammad bin Muḥammad Al-māwardī Al-ḥawī Al-kabīr fī fiqh madhab Al-imām Al-shaf‘ī wa huwa sharḥ al-mukhtaṣar al-muznī (first published 1999 Bairut) 343/6
’Abū Bakr Aḥmed bin Al-ḥussain Al-baihaqī, Al-sunan ul-kubrā, kitāb al- ṣalāh, bāb man tajibu ‘laihi al ṣalāh, vol. 3 (Bairūt, 2003), 118
Translation by ‘Abdullah Yūsuf’ Alī
‘Abdul Karīm bin Muḥammad Al-qazwīnī, Al-muḥarrar fī fiqh al-imām Al-shaf‘ī (first Published 2013, Cairo) 592;
Manṣūr bin Yūnus Al-bahūtī, kashshāf ul-qinā‘a ‘an matn ul-iqnā‘, (first published 1983, Bairūt, 1997), 147;
Abū ‘Abdullah Muḥammad Al-khurshī, Al-khurshī ‘alā mukhtaṣar sayyidī khalīl (first published 1317, Bairūt), 296/5;
‘Ali Ḥaider Khawajh ’Amīn ’Afindī Durrar ul ḥukkām fi sharḥ majallah tul-’aḥkām, maddah 986: (first published 1991(706/2)
’Abū al-Ḥasan Burhān ud dīn ‘Ali bin ’abi Bakar Al-murghinānī Al-hidāyah fī sharḥ bidāyah al-mubtadī (first published 1345 Bairūt 2000), 281;
’Aḥmed bin Muḥammad al- ṭaḥṭāwī ḥashiah al-ṭaḥṭāwī ‘alā marāqi al-falāḥ (first published 1997, Bairūt) 132
‘Alī bin ’Ibrāhīm ’Abu al-Ḥasan ‘Alā ud dīn ’ibn Al-‘aṭṭār al-‘iddah fī sharḥ al-‘umdah fī ’aḥādith al-’aḥkām (first published 2006, Bairūt) 1706/3
The Contract Act 1872, s 11
The Majority Act 1875, s 3
Punjab Marriage Restriction (Amendment) Bill 2015 retrieved from http://www.pap.gov.pk/index.php/bills/details/en/20/142 accessed on 1 June 2022
Punjab Marriage Restriction (Amendment) Bill 2015 retrieved on accessed on 1 June 2022
The Sindh Child marriages Restraint Act, (Sindh amendment) 2013, retrieved on
http://www.pas.gov.pk/uploads/acts/Sindh%20Act%20No.XV%20of%202014.pdf. accessed on 1 June 2022
The Constitution of Islamic Republic of Pakistan 1973, article 11 (3)
Employment of Children Act 1991, section 2 (iii)
Ibid
CRC 1989, article 1
Al-Qur’ān 6:4
Translation by ‘Abdullah Yūsuf’Alī
CMRA 1929, s 4-6
PPC 1860, s 489(f)
IPC 1860, S 375
R. Kalaivani ‘Child Marriage Restraint Act 1929, A Historical Review’ [2015] 14-18, retrieved from http://www.ijhssi.org/v4i1(version%201).html accessed on 1st July 2022
Mrs. Marcus B. Fuller ‘The Wrongs of Indian Womanhood’ (New York 1900) 18
Padma Analog-Mcginn Women’s consciousness and assertion in colonial India, Gender, Social reform and Politics in Maharashtra, c.1870-1920 (Indian Social Reformer, 1889) 250
Mujīb ’Aḥmed Sārdā Bill aūr Qānūn ’Insidād Shādi bachgān, Musalmānān e Hind kā Rad e ‘amal Aīk Ja’īzah [1999] 101
“Whoever performs, conducts, or directs any child marriage shall be punishable with simple imprisonment which may extend to [six months and fine of fifty thousand rupees]”. (CMRA 1929, S 5);
2-3 years rigorous imprisonment with fine is prescribed (Sindh child marriages restraint act, 2013)
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages [1964] articles 1, 2, and 3
CEDAW 1979, Article 16.1
‘Abdul Raḥman bin ’abi Bakar Al-Ashbāh wan-Naẓāir (Bairūt, 1403) 60
Sheikh Muḥammad bin Ṣālah Al Uthaīmīn ’Al Qawa‘id Al Fiqhyyah (Lahore 2019)134
Ibid. S 2(a): ‘minor’ means a person of either sex who is under eighteen years of age
“(3) Save as otherwise expressly provided in this act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, as far as applicable and with the necessary adaptations, continue as the law of each of the new dominions and the several parts thereof until laws make another provision of the legislature of the dominion in question or by any legislature or other authority having power in that behalf”
“Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to [one month and fine of one thousand rupees” s 5, Child Marriage Restraint Act 1929; in Sindh Child Marriages Restraint Act 2013; 2-3 years of rigorous imprisonment with a fine is prescribed; in Child Marriage Restraint Act 2015; (Punjab amendment), six months and a fine of fifty thousand rupees or both are prescribed
Mauj Ali v. Syed Safdar Hussain Shah and another, where she contracted her marriage by herself and without her guardian’s permission. Supreme court dismissed the contention of the guardian that she is below the age of sixteen years. Thus, her marriage is in contravention of the Child Marriage Restraint Act 1929, and held that she is pubescent, and such a marriage is permitted in Muḥammadan law. [1970] SCMR 437
Mst. Bakhshi v. Bashir’ Aḥmed and another: PLD [1970] SC 323
It says: …. the girl being underage by 16 years was, because of the Child Marriage Restraint Act 1929, incompetent to contract a marriage. Indeed, the said Act does not permit the marriage of a girl below the age of 16 years. However, if any girl below the age of sixteen marries in violation of that law, the marriage does not become invalid in that scene. However, the adult husband contracting the marriage or the persons who have solemnized the marriage may be held criminally liable
Muhammad Iqbal v. The state: PLD [1983] FSC 9
Allah Bukhsh v. Safdar and others: [2006] YLR 2936
‘Arrest against child marriage’ retrieved from
’Abu Al-ḥusaīn ’Aḥmed ’ibn Muḥammad ’ibn ’Aḥmed Al-qudūrī Mukhtaṣr ul qudūrī (Krachi 2011) 485
’Abū Bakr Muḥammad ’ibn ’abū Sahl Al-sarakhasī Al- mabsūṭ (Bairūt 1978) 212
Zain ul- dīn ’ibn Nujaīm, Al- baḥr al- rāʼiq sharḥ kanz al-daqāʼiq (not known) 127
’Abū al-Walīd Muḥammad ’ibn ’Aḥmad ’ibn Muḥammad ’ibn Rushd al-ḥafīd Bidāyat ul-mujtahid wa nihāyah ul-muqtaṣid (Cairo: 2004)34
Muḥammad ibn ’Idrīs al-Shāfi’ī Al-’umm (Beirut: 1990) 163
Muwafffaq ud-dīn ’Abū Muḥammad ʻAbdullāh ’ibn Qudāmah al-maqdisī Al-mughnī (Cairo: 1968) 51
‘Abdul Rahīm ’Ashraf Balūch, Doctor Maḥmūd ‘Aḥmed Ghāzī ’Aḥkām-e-Bulighat (first published 1990, Islamabad) 121
Aparana Bhat, Aatreyee Sen and Uma Pardhn, child marriages and the law in India, human rights law network (2005) India
Andrea Büchler and Christina Schlatter, marriage age in Islamic and contemporary Muslim family laws a comparative survey” [2013], (EJIMEL), Vol. 1
Susanne Louis B. Mikhail “child marriage and child prostitution: two forms of sexual exploitation”, [2002], vol. 10, no.1
Marriage, the death penalty and terminologies and their qualifications.
The Universal Declaration of Human Rights 1948, and two covenants of 1966 on economic, social, and political rights
UDHR “article 16 of men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to find a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution; marriage shall be entered only with the intending spouses’ free and full consent; the family is the natural and fundamental group unit of society and is entitled to protection by society and the state”. Retrieved from https://www.un.org/en/about-us/universal-declaration-of-human-rights accessed on 3-11-2021
Mudassara Sabreen, Samia Maqbool Niazi child marriage and the right of option of puberty: a comparative study of Islamic and Pakistani law Fikr-o-Naẓar Vol:56, Issue: 3-4, 121
Dr Farrukh Tahira, “Pakistan main jabri shadion ky asbāb wa muḥarakāt shara‘i wa qanūni tanazur main”, Al-Tabyīn, [2019], Vol. 3, Issue 1
Ludo Rocher Indian response to Anglo Hindu law, journal of the American oriental society July-September 1972 92 (3)
‘Abdullah bin Shubramah Al Kūfī was a prominent Qāḍī in Kūfah and Yamen. He died in 144 A.H
‘Ali bin Sa‘īd bin Ḥazm bin Ṭālib known as ’Imām ’Ibn Ḥazm al-Ẓāhirī, Died in 28th Shaban 457 A.H Retrieved from
’Abū Bakar ‘Abdul Raḥmān Bin Kaisān ’Al Aṣam. A prominent m‘autazili jurist of Basra. Died on 200 A.H. Retrieved from https://iranicaonline.org/articles/asamm). Assessed on 12 Sep 2022
Deb, Shakti, ‘a critical analysis of child marriage law in India with special reference to Hindu law’, (2012) retrieved from
IPC 1860, s 375
Mrs Marcus B. Fuller “the wrongs of Indian womanhood” (New York 1900) 18
Padma Analog-Mcginn “women's consciousness and assertion in colonial India, gender, social reform and politics in Maharashtra, c.1870-1920. (Indian Social Reformer, 1889) Vol.9 250
Mujīb ’Aḥmed “sārdā bill aūr qānūn ’insidād shādi bachgān, musalmānān e hind kā rad e ‘amal aīk ja’īzah” [1999] 101
"Whoever performs, conducts, or directs any child marriage shall be punishable with simple imprisonment which may extend to [six months and fine of fifty thousand rupees]". (CMRA 1929, S 5); “2-3 years of Rigorous Imprisonment with a fine is prescribed”. (Sindh CMRA 2013)
Al-Qur’ān 6:4
Translation by the Abdullah Yousuf' Alī, retrieved from Surah An-Nisa, سورة النساء | Chapter 4, سورة ٤ | Quran Yusuf Ali, قرآن يوسف علي assessed on 12-9-2022. (Hereinafter referred to as translation by 'Abdullah Yūsuf' Alī)
Ibn ‘Ābidīn, Muḥammad ’Amīn Radd ul-muḥtār ‘alā al-durr Al-mukhtār (1992, Bairūt) 612
The Constitution of the Islamic Republic of Pakistan [1973] article 11 (3)
Employment of Children Act 1991, s 2 (iii)
CRC 1989, Article 1
Ibid
Al-Qur’ān 59:24
Translation by ‘Abdullah Yūsuf ‘Alī
Abū Al-ḥasan Muḥammad bin Muḥammad Al-māwardī Al-ḥawī Al-kabīr fī fiqh madhab Al-imām Al-shaf‘ī wa huwa sharḥ al-mukhtaṣar al-muznī (first published 1999 Bairut) 343/6
’Abū Bakr Aḥmed bin Al-ḥussain Al-baihaqī, Al-sunan ul-kubrā, kitāb al- ṣalāh, bāb man tajibu ‘laihi al ṣalāh, vol. 3 (Bairūt, 2003), 118
Translation by ‘Abdullah Yūsuf’ Alī
‘Abdul Karīm bin Muḥammad Al-qazwīnī, Al-muḥarrar fī fiqh al-imām Al-shaf‘ī (first Published 2013, Cairo) 592;
Manṣūr bin Yūnus Al-bahūtī, kashshāf ul-qinā‘a ‘an matn ul-iqnā‘, (first published 1983, Bairūt, 1997), 147;
Abū ‘Abdullah Muḥammad Al-khurshī, Al-khurshī ‘alā mukhtaṣar sayyidī khalīl (first published 1317, Bairūt), 296/5;
‘Ali Ḥaider Khawajh ’Amīn ’Afindī Durrar ul ḥukkām fi sharḥ majallah tul-’aḥkām, maddah 986: (first published 1991(706/2)
’Abū al-Ḥasan Burhān ud dīn ‘Ali bin ’abi Bakar Al-murghinānī Al-hidāyah fī sharḥ bidāyah al-mubtadī (first published 1345 Bairūt 2000), 281;
’Aḥmed bin Muḥammad al- ṭaḥṭāwī ḥashiah al-ṭaḥṭāwī ‘alā marāqi al-falāḥ (first published 1997, Bairūt) 132
‘Alī bin ’Ibrāhīm ’Abu al-Ḥasan ‘Alā ud dīn ’ibn Al-‘aṭṭār al-‘iddah fī sharḥ al-‘umdah fī ’aḥādith al-’aḥkām (first published 2006, Bairūt) 1706/3
The Contract Act 1872, s 11
The Majority Act 1875, s 3
Punjab Marriage Restriction (Amendment) Bill 2015 retrieved from http://www.pap.gov.pk/index.php/bills/details/en/20/142 accessed on 1 June 2022
Punjab Marriage Restriction (Amendment) Bill 2015 retrieved on
The Sindh Child marriages Restraint Act, (Sindh amendment) 2013, retrieved on
http://www.pas.gov.pk/uploads/acts/Sindh%20Act%20No.XV%20of%202014.pdf. accessed on 1 June 2022
The Constitution of Islamic Republic of Pakistan 1973, article 11 (3)
Employment of Children Act 1991, section 2 (iii)
Ibid
CRC 1989, article 1
Al-Qur’ān 6:4
Translation by ‘Abdullah Yūsuf’Alī
CMRA 1929, s 4-6
PPC 1860, s 489(f)
IPC 1860, S 375
R. Kalaivani ‘Child Marriage Restraint Act 1929, A Historical Review’ [2015] 14-18, retrieved from http://www.ijhssi.org/v4i1(version%201).html accessed on 1st July 2022
Mrs. Marcus B. Fuller ‘The Wrongs of Indian Womanhood’ (New York 1900) 18
Padma Analog-Mcginn Women’s consciousness and assertion in colonial India, Gender, Social reform and Politics in Maharashtra, c.1870-1920 (Indian Social Reformer, 1889) 250
Mujīb ’Aḥmed Sārdā Bill aūr Qānūn ’Insidād Shādi bachgān, Musalmānān e Hind kā Rad e ‘amal Aīk Ja’īzah [1999] 101
“Whoever performs, conducts, or directs any child marriage shall be punishable with simple imprisonment which may extend to [six months and fine of fifty thousand rupees]”. (CMRA 1929, S 5);
2-3 years rigorous imprisonment with fine is prescribed (Sindh child marriages restraint act, 2013)
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages [1964] articles 1, 2, and 3
CEDAW 1979, Article 16.1
‘Abdul Raḥman bin ’abi Bakar Al-Ashbāh wan-Naẓāir (Bairūt, 1403) 60
Sheikh Muḥammad bin Ṣālah Al Uthaīmīn ’Al Qawa‘id Al Fiqhyyah (Lahore 2019)134
Published
2023-06-26
How to Cite
Muhammad, Y., & Muhammad Haroon. (2023). Marriage able ages & penalization on early marriages in Pakistan: a critical analysis in the light of Islamic law. Jihat Ul Islam, 16(2), 15-33. https://doi.org/10.51506/jihat-ul-islam.v16i2.579
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Copyright (c) 2023 Jihat ul Islam
This work is licensed under a Creative Commons Attribution 4.0 International License.
