2026 PLP 525 (MLD)

Tariq Saleem Sheikh, J.

Respondent No.3 moved an application under section 22-A of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code or Cr.P.C. ) before the Ex officio Justice of Peace, Lalian, District Chiniot ( JOP, Lalian ), stating that about 15/16 years earlier she had married Ghulam Abbas (the Petitioner herein). Three children, namely, Saba Bibi, Sher Dil, and Ali Abbas, were born out of that union. Saba was the eldest and was around 14 years old. Respondent No.3 alleged that the Petitioner forcibly married Saba to Ghulam Muhammad in violation of the Child Marriage Restraint Act, 1929 (the 1929 Act ). She prayed that the Respondent SHO be directed to register an FIR against Ghulam Muhammad and others who had committed the offence. The JOP, Lalian, accepted the said application by order dated 27.08.2024 and issued the requisite direction.

2. The Petitioner has challenged the aforementioned order of the JOP, Lalian, through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution ).

3. Arguments heard. Record perused.

4. Child marriage is a global human rights concern because it violates multiple fundamental rights, including the rights to equality, education, health, protection from violence, and the right to free and full consent in marriage. The Universal Declaration of Human Rights [Article 16(2)], the Convention on the Rights of the Child [Article 24(3)], and the Convention on the Elimination of All Forms of Discrimination against Women [Article 16(2)] require States to fix a minimum age for marriage and to take effective measures to eliminate child, early, and forced marriages. These obligations find further expression in Target 5.3 of the Sustainable Development Goals 2030. The 1929 Act is Pakistan s legislative response to the problem of child marriage and a step towards fulfilling its commitments under international law.

5. The 1929 Act is historically significant because it was one of the first laws in the Indian sub-continent, and indeed one of the first anywhere, to regulate and restrain child marriage. Enacted during British rule, it originally applied to British India. After Partition, Pakistan adopted it as part of its legal framework. Pursuant to the Adaptation of Central Acts and Ordinances Order, 1949, the word India was substituted with Pakistan . Later, through the Punjab Child Marriage Restraint (Amendment) Act, 2015 (XII of 2015), the expression Pakistan was replaced with The Punjab to reflect the law s provincial application.

6. Section 2(a) of the 1929 Act defines a child as a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age. Section 2(b) defines a child marriage as a marriage to which either of the contracting parties is a child. The penal provisions are contained in sections 4 to

7. The Act classifies three categories of persons as offenders: first, a male above eighteen years of age who contracts child marriage; second, a person who performs, conducts, or directs any child marriage; and third, where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permit it to be solemnized or negligently fails to prevent its solemnization.[1]

7. Section 8 of the 1929 Act prescribes the jurisdiction of the court, while section 9 sets out the mode of taking cognizance of offences. Section 9 is reproduced below for ready reference:

9. Cognizance of offence and trial. (1) A Family Court shall not take cognizance of any offence under this Act except on a complaint made by the Union Council. (2) A Family Court exercising the powers of a Judicial Magistrate of the First Class shall conduct the trial of an offence under this Act in accordance with the provisions of the Family Courts Act, 1964 (XXXV of 1964).[2]

8. Section 9 of the 1929 Act makes the cognizance of an offence contingent upon a complaint by the Union Council concerned before the Family Court. That court then conducts the trial as a Judicial Magistrate of the First Class in accordance with the Family Courts Act, 1964. This section prescribes a special procedural mechanism that prevails over the general provisions of the Code. Section 9 does not, in express terms, impose an obligation upon the Union Council to file a complaint. On its face, it contains a negative command addressed to the court restraining it from taking cognizance, but it does not issue a positive directive to the Union Council. It creates a jurisdictional precondition for cognizance but is silent on whether or when the Union Council must act. However, the absence of an express positive directive does not necessarily mean that the Union Council enjoys unfettered discretion to do nothing. Interpretive doctrines allow us to infer an implied obligation consistent with legislative intent.

9. Where a statute confers a power upon a public authority for the promotion of a public good, courts have held that the exercise of that power becomes a duty when the circumstances for its exercise arise. In Julius v. Bishop of Oxford [1880] 5 App Cas 214 (HL), Lord Cairns LC observed that although a power may be conferred ( it shall be lawful ), there may be something in the nature of the thing empowered to be done which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. In R (GC) v. Commissioner of Police of the Metropolis [2011] UKSC 21, the U.K. Supreme Court re-stated the Julius principle as follows: on the proper construction of a statute as a whole and in its context, it can sometimes be seen that a power granted to, say, an official, court or other body in the public interest must be regarded as having been coupled with an implied duty on the recipient to exercise the power in the circumstances envisaged for its exercise.

10. The Supreme Court of India (SCI) applied the above principle in Chief Controlling Revenue Authority and Superintendent of Stamps v. Maharashtra Sugar Mills Ltd. (AIR 1950 SC 218), where it held that the power conferred under section 57 of the Indian Stamp Act was coupled with a duty which is cast on him, as a public officer, to do the right thing when an important and intricate question of law arises.

11. The purposive approach to statutory interpretation also permits courts to infer such implied duties. Where the words of a statute are ambiguous or silent, courts must adopt a construction that best advances the object and purpose of the law. This approach is particularly relevant in the context of remedial, welfare, and human rights legislation. In Edukanti Kistamma (Dead) through L.Rs. and others v. S. Venkatareddy (Dead) through L.Rs. and others (AIR 2010 SC 313), the SCI held that the Act must be read as a whole for statutory interpretation. The court must give full effect to the Act s objective and intent by using the rules of purposive construction. It must construe the enactment in a way that promotes its object and advances the purpose for which it was passed, and strongly oppose any construction that seeks to reduce a statute s utility. The following excerpt from Lord Steyn s judgment in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687, is also instructive: On the other hand, the adoption of a purposive approach to the construction of statutes generally, and the 1990 Act in particular, is amply justified on wider grounds. In Cabell v. Markham (1945) 148 F 2d 737, Justice Learned Hand explained the merits of purposive interpretation, at p 739: Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature, developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App Cas 743,

763. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently.

12. The 1929 Act is a welfare statute aimed at protecting minors from early marriage and its attendant harms. To serve this objective, its procedural framework must be given meaningful effect. Although section 9 does not expressly oblige the Union Council to file a complaint before the competent court, this obligation arises by necessary implication in light of the interpretive principles discussed above. When credible information regarding the commission of an offence comes to its notice, the Union Council is legally bound to act. Provisions requiring a prior complaint or sanction before initiating criminal proceedings are not uncommon. Similar mechanisms exist under the Code and other special laws to protect against misuse and to preserve procedural integrity.

13. In the present case, according to Form-B of Saba Bibi available on record, she was born on 18.03.2010. The Petitioner married her to Ghulam Muhammad on 26.04.2024 when she was fourteen years, one month, and eight days old. She was, therefore, below the statutory age prescribed under section 2(a) of the 1929 Act. Hence, prima facie, an offence under that Act has been committed. However, this does not by itself authorize police intervention, for the Act expressly classifies such offences as non-cognizable and requires the prescribed procedure under section 9 to be followed.

14. On 18.07.2024, Respondent No.3 filed an application under section 22-A(6), Cr.P.C. before the JOP, Lalian, seeking a direction to the Respondent SHO to register an FIR. The said provision reads as follows: (6) An Ex officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding (i) non-registration of criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure, or excess committed by a police authority in relation to its functions and duties.

15. The above provision empowers the Ex officio Justice of Peace to issue directions to the police authorities. The Code does not define the term police authorities but at some places, it uses the expression Officer in-charge of a Police Station . Admittedly, the Union Council is not a police authority, so it is beyond the jurisdiction of the Ex officio Justice of Peace. Section 2(e) of the 1929 Act defines a Union Council as follows: (e) Union Council means a Union Council, Municipal Committee, Cantonment Board, a Union Administration or, in case of absence of any of these local governments in a local area, any other comparable body constituted under any law relating to the local governments or local authorities.

16. All offences under sections 4 to 6 of the 1929 Act are punishable with a simple imprisonment of six months and a fine of fifty thousand rupees. The Second Schedule to the Code classifies such offences as non-cognizable. As already discussed, section 9 of the Act expressly requires a complaint by the Union Council and a trial by a Family Court exercising the powers of a Judicial Magistrate of the First Class. Consequently, the police have no authority to register an FIR or investigate an offence under the Act, and the Ex officio Justice of Peace cannot compel such registration under section 22-A(6), Cr.P.C.

17. Given the above, Respondent No. 3 s application under section 22-A(6), Cr.P.C. before the JOP, Lalian, was not maintainable, and the impugned order is without jurisdiction. The proper course for the JOP, Lalian, was to dismiss that application and advise Respondent No. 3 to approach the Union Council. Upon being approached, the Union Council would be under a legal obligation to act on the information and lodge a complaint before the competent court in accordance with section 9 of the 1929 Act. If it fails to do so, Respondent No. 3 may invoke this Court s constitutional jurisdiction by seeking a writ of mandamus under Article 199 of the Constitution. In Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries (AIR 1993 SC 1601), the SCI stated: There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This impose the duty to act fairly and to adopt a procedure which is fairplay in action . Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

18. In view of the above, this petition is accepted, and the impugned order dated 27.08.2024 is set aside. However, Respondent No.3 may approach the Union Council for filing a complaint in terms of section 9 of the 1929 Act.

19. The observations in this judgment are limited to the determination of statutory applicability and shall not prejudice any proceedings before the competent forum. MH/G-19/L Petition allowed. [1] In Farooq Omar Bhoja v. Federation of Pakistan (PLD 2022 FSC 1), The Federal Shariat Court declared that sections 4 to 6 of the 1929 Act are not repugnant to the Injunction of Islam. [2] Section 9 as substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015).