P L D 2010 Quetta 61
Before Qazi Faez Isa, C J and Syeda Tahira Safdar, J
Mst. GIRAN NAZ alias SHAGUFTA BIBI ---Petitioner
Versus
THE STATE and 2 others ---Respondents
Constitutional Petition No.97 of 2010, decided on 29th April, 2010.
Constitution of Pakistan (1973) ---
----Arts. 4, 31, 35 & 199 ---Constitutional petition ---Petitioners sought directions to
Superintendent, Dar -ul-Aman to arrange their marriage and release female petitioner from
Dar-ul-Aman thereafter ---Court below did not permit petitioners to contract court marriag e
and set the pre -condition of settlement with the parents of the girl and her custody to them -
Validity -Article 4 of the Constitution mandated that no person could be prevented from
doing or be hindered in doing that which was not prohibited by law and tha t it was an
inalienable right of every citizen to be treated in accordance with law ---Law did not prevent
an adult lady from marrying an adult man of her choice ---Article 35 of the Constitution
required the State to protect the institution of marriage ---High Court ensured during hearing
of the case that female petitioner was old enough to understand the ramifications of her
decision, therefore, petitioners could not be prevented from marrying each other ---Orders of
courts below were set aside and Superinten dent Dar -ul-Aman was directed to arrange the
marriage of petitioners and allow the female to leave Dar -al-Aman ---Petition was accepted.
Surah Ar -Rum (30) Verse 21; Surah Al -Baqara (2), Verse 187; Surah Ash -Shura (42), Verse
11; Surah Az -Zumar (39), Ver se 6; Surah Al -Naba (78), Verse 8 and Surah An -Nahl (16),
Verse 72 quoted.
Masoom Khan Kakar for Petitioners.
Nasrullah Achakzai, Addl. A. -G. for Respondents.
Date of hearing: 27th April, 2010.
JUDGMENT
QAZI FAEZ ISA, C.J. ---Petitioner No.1, M st. Giran Naz alias Shagufta Bibi daughter of
Babu Dostain, and Petitioner No.2, Noor Ullah son of Shaista Khan, have filed the instant
petition under Article 199 of the Constitution seeking directions to be issued to
Superintendent Dar -ul-Aman, Quetta to arrange their marriage according to injunctions of
Islam and thereafter Petitioner No.1 to be released from Dar -ul-Aman as wife of petitioner
No.2.
The petitioners are residents of District Loralai. Petitioner No.1 left her house because her
brothers wer e not willing to give her hand to the petitioner No.2 in marriage and she took
shelter in Daru -ul-Aman, Quetta in February, 2009. As per the affidavit of the petitioner No.1
her father is dead and she has a mother, three brothers and a married sister. Howe ver, only
one brother, namely Din Muhammad opposed the marriage and sought custody of petitioner
No.1.
An application before the Judicial Magistrate, Loralai was submitted seeking court marriage
of the petitioners. The Judicial Magistrate however, dismis sed the said application vide order
dated 25 -7-2009 on the ground that, "it is not necessary that court marriage be held at Loralai
as the lady is in the custody of Dar -ul-Aman Quetta" and advised to submit application be
filed before the competent Court a t Quetta. Thereafter, the petitioner No.2 filed an application
before the Sessions Judge, Quetta, who rejected the same vide order dated 16 -11-2009. The
operative portion of the order passed by the Sessions Judge, Quetta reads as under: --
"Let the matter be resolved between the parties first and then custody of the
respondent No.1 can be shifted to her parents or applicant which too with her consent
and satisfaction of concerned Court i.e. Judicial Magistrate -IV, Quetta."
The petitioner No.1 thereafter approached the Judicial Magistrate IV, Quetta, who after
hearing the parties rejected the application vide order dated 26 -11-2009 as amicable
settlement had not been arrived at. Hence the instant Constitutional Petition.
The question for consideration be fore this Court is whether the impugned orders whereby the
petitioners were not permitted to marry and or such marriage was made dependent on settling
the matter with the girl's family was in accordance with the Constitution of Pakistan and in
accordance w ith the personal law of the parties, who are Muslims. Article 4 of the
Constitution of Pakistan mandates that no person can be prevented from or be hindered in
doing that which is not prohibited by law and that it is the inalienable right of every citizen to
be treated in accordance with law. Pakistan law does not .prevent an adult lady to marry an
adult man of her choice.
Under the Principles of Policy Chapter of the Constitution of Pakistan Muslims are enabled to
live their lives in accordance with the fundamental concepts of Islam (Article 31) and the
State is required to protect the institution of marriage (Article 35).
The Holy Qur'an mentions the tranquility, beauty and love to be found in marriage:
"And among His Signs is this
that He created f or you mates
from among yourselves, that
you may dwell in tranquility
with them, and He has put
love and mercy between
your (hearts): Verily in that
are signs for those who reflect."
Surah Ar -Rum (30), verse 21.
And spouses are the adornment of eac h other,
"They (women) are
your garments, and
you (men) are their garments"
Surah Ar -Baqarah (2), Verse 187.
Almighty Allah, the Creator of the heavens and earth, reminds us about the importance of
creating mates;
"The Creator of the heavens
and the earth, he has made for
you mates from amongst yourselves."
Surah Ash -Shura (42), Verse 11.
"He created you (all)
from a single person,
then made from him his wife"
Surah Az -Zumar (39), Verse 6.
"And We have created you in pairs."
Surah Al -Naha (78) , Verse 8.
"And Allah has made for you
mates of your own kind."
Surah An -Nahl (16), Verse 72.
In the amazingly wonderful and beautiful world of the Creator marriage and spouses have a
central role and family members cannot be permitted to prevent an adult man and woman from
marrying or force them into a relationship that they do not willing enter into or one that they
may abhor or hate. Despite the fact that the petitioner No.1 has been in seclusion in the Dar -ul-
Aman at Quetta for over a year she is still resolute and determined to marry petitioner No.2 and
has also stated so before us. Moreover, one of us (Mrs. Justice Syeda Tahira Safdar) took her
aside in Chambers and asked the petitioner No.1 to remove her veil to ensure that she was old
enough an d understood the ramifications of her decision and found that petitioner No.1
appeared to be a major and that she was adamant to get married to petitioner No.2.
Under such circumstances the petitioners cannot be prevented to enter into marriage with ea ch
other. In view of the fact that the petitioner No.1 is a yateem, insofar as her father is dead, it
also falls upon us to ensure that a reasonable amount is fixed as her mehr because the Holy
Qur'an prescribes, that,
"And give to the women their mehr"
Surah An -Nisa (4), Verse 4
"They ask your instruction concerning
the women, say: Allah instructs you
about them, and what hath been
recited unto you in the Book
concerning the orphan girls whom you
give not the portions prescribed,
and yet whom ye d esire to marry,
and the children who are weak
and oppressed, and that you stand firm
for justice to orphans.
There is not a good deed which you do,
but Allah is well -acquainted therewith."
Surah An -Nisa (4), Verse 127.
We accordingly set aside the af orementioned orders and direct the Superintendent Dar -ul-
Aman Quetta to arrange the marriage of the petitioner No.1 with petitioner No.2 and, unless the
petitioner No.2 demands a higher amount as mehr, fix the mehr at Rs.100,000 (Rupees one
hundred thousan d only). After the performance of nikah the petitioner No.1 be permitted to
leave Dar -ul-Aman in the company of petitioner No.2 as his wife.
Petition is allowed in the aforesaid terms.
A.R.K./30/Q Petition allowedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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