1997 P Cr (PLP)

2. Brief facts relevant for the decision of this petition are that Mst. Najma Bibi aged 18 years 4 months performed Nikah with her free will with Muhammad Tariq Mahmood on 19-12-1996 at Lahore. After the solemnization of the marriage with a delay of 10 months, Muhammad Shafi, real father of Mst. Najma Bibi lodged the aforementioned F.I.R.

3. Learned counsel for the petitioners contended that marriage according to the Muhammadan Law is not sacrament but a civil contract and both the persons being sui juris were competent to perform the marriage referred above. For the purpose of marriage, there is no legal requirement that the girls cannot enter into marriage with their free will without the blessings of their father or Wali and placed reliance on PLD 1981 FSC 308 and PLD 1982 FSC 42, which lays down that Nikah of an adult girl not invalid for want of permission of Wali. According to the learned counsel, in large number of cases, the superior Courts have approved the marriage between the parties, who are sui juris and performed the Nikah with their own free will and placed reliance on 1995 PCr.LJ 401, 1995 PCr.LJ 94 and 1995 PCr.LJ 1657. Islam is the only religion, which confers the equal rights on the woman before the advent of Islam, women were considered as a chattel and they had no social legal status and the marriage was not a civil contract. The Islam being progressive religion and near to the nature of the human being revolutionise the entire concept of the society and declare the marriage is a civil contract, in which both the parties should willingly give their consent and acceptance. In Sura Nisa, Verse No.3, Almighty God ordained, marry women of their own choice and this also applies to the woman, she can marry man of her own choice. In this regard, the reference may be made to tradition of Holy Prophet (peace be upon him) that "a Wali is bound to follow the consent of a woman". The whole Muslim Umma is consistent upon this point that a woman cannot be forced to marry against her will. A Wali is bound by the will/consent of the woman and the woman is not bound by the consent/permission of the Wali. She can cancel her marriage contracted during the period of minority by a Wali in exercise of her right of puberty. A sane, free and adult woman does not require prior consent or permission to enter into a marriage bond with a man of her choice according to the Injunctions of Islam and her marriage with her free will without the consent of her parents or Wali is valid and legal. He further contended that in Islam, there is no difference between man and woman, both enjoy equal social political status in the Society. According to the Article 25 of the Constitution of the Islamic Republic of Pakistan, all citizens are equal before the law and entitled to equal protection of law, there shall be no discrimination on the basis of sex alone. Even twice Mohtarma Benazir Bhutto remained the elected Prime Minister of this country. Learned counsel further urged that this Court is not bound to follow the opinion of the Jurists of the past, that woman cannot marry, without the consent of her Wali which is not in accordance with the Constitution of Islamic Republic of Pakistan.

4. Learned Law Officer, appearing on behalf of the State has frankly conceded this legal position that in Islam, the woman has equal right and they have right to choice their husband, if so desired and under section 154 of Cr.P.C., the F.I.R. can only be registered, if cognizable offence is committed. In the present case, both these persons entered into Nikah being sui juris, and they have not committed any offence under the law, so the police was not competent to register the case.

5. I have heard the learned counsel for the parties and have perused the record

6. The marriage is a contract between man and woman which is entered into for procreation of, children. The basis of the contract is proposal and acceptance. According to Verse No.323 of Sura AI-Baqra by Allama Ahmad Ali:-- "When you have divorced your wives and they have completed the fixed term (of waiting) 'do not stop them marrying other men, if it is agreed between them honourably. This warning is for those among you who believe in God and the Last Day. This is both proper and right for you, for God knows and you do not know." Some orthodox religious scholars are of the opinion that a woman cannot contract marriage without the blessing of the guardian (Wali). Socio- economic circumstances have profoundly changed in the society. Women pursue education, do job, and earn living independently. Article 25 of the Constitution of the Islamic Republic of Pakistan declares all citizens are equal before law. It denounces discrimination on the basis of sex. Article 35 makes the State responsibility for protection of the family, one can, therefore, conclude that dependency of the woman on guardian is vanishing. Traditions and modernity appears to be in conflict. There is polarization of view points. The Judges of the superior Courts are by all measures, Jurists of today, it is their right as well as responsibility to give progressive interpretation to Muhammadan Law that are in consonance with the spirit of law and the need of the time, as issues cannot be left unsettled. Even the Federal Shariat Court in PLD 1981 FSC 308 and PLD 1982 FSC 42 held that the adult woman is competent to choose her husband without the blessing of Wali, this decision is binding on the High Court in view of Article 203-GG of the Islamic Republic of Pakistan.

7. In view of the above discussion, as the petitioners solemnized the marriage with their free consent and both of them being adult and sui juris, they have not committed any offence whatsoever under the law. The police cannot register the case in view of the provisions of Criminal Procedure Code unless the offence committed is cognizable, as contemplated under section. 154, Cr.P.C.; hence this petition is accepted and the registration of F.I.R. No. 140 of 1996, dated 11-9-1996, at Police Station Millat Park, Lahore under section 11 of Ordinance VII of 1979 read with section 109, P.P.C. is declared to be without lawful authority and of not legal effect. M.B.A./M-267/L Petition accepted.