P L D 2007 Federal Shariat Court 1 (PLP)
MUHAMMAD FAYYAZ and another — Petitioners Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Religious Affairs, Islamabad and 4 others — Respondents
| Citation | P L D 2007 Federal Shariat Court 1 (PLP) |
| Forum / Court | High Court |
| Bench Members | Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ |
| Parties | MUHAMMAD FAYYAZ and another — Petitioners Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Religious Affairs, Islamabad and 4 others — Respondents |
| Primary Law | Constitution of Pakistan (1973) |
Q1: What are the key laws and sections cited in P L D 2007 Federal Shariat Court 1 (PLP)?
This judgment primarily cites: Constitution of Pakistan (1973) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2007 Federal Shariat Court 1 (PLP)?
The case was heard and decided by the High Court bench comprising: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2007 Federal Shariat Court 1 (PLP) (MUHAMMAD FAYYAZ and another — Petitioners Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Religious Affairs, Islamabad and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----Arts. 203-B(c) & 203-D---Majority Act (I of 1875), S.3---Contract Act (IX of 1872), S.11---Repugnancy to injunctions of Islam---Petitioners had called in question S.3 of Majority Act, 1875 read with S.11 of Contract Act, 1872, praying that same be declared repugnant to injunctions of Islam---Contention of counsel for petitioners was that age of 18 years as mentioned in impugned S.3 of Majority Act, 1875, was against injunctions of Islam and a source of botheration for the father as he had to provide maintenance to his son till age of 18 years, despite the fact that his son might have much earlier attained puberty according to Islamic injunctions---Shariat Court was empowered to examine laws as defined in Art.203-B(c) of the Constitution, only on the touchstone of injunctions as contained in Holy Qur'an and Sunnah of Holy prophet (p.b.u.h.)---Court had great regard for opinion of Muslim Jurists, however, according to constitutional requirements, Shariat Court could not declare any law or its provisions repugnant to injunction of Islam merely on basis of opinion expressed by a Muslim Jurist---No verse of Holy Qur'an or authentic Hadith, on said particular matter could be found to support contentions raised by counsel for petitioners---Mere manifestation of physical symptoms of attaining puberty, as submitted by counsel for petitioners, were not, by themselves, sufficient to hold that concerned person had also attained the age of majority/maturity---There were definitely other mental, emotional and psychological aspects also that would form necessary basis for that purpose---Ages in attaining physical puberty, would vary from place to place and from person to person and no definite criteria could be specified' to exactly determine who attained puberty and on which date---Such was the reason why even renowned Muslim scholars were not unanimous on that point and had held divergent opinions in respect of age of puberty---For the purpose of legislation, a specific age limit had to be fixed by the legislation so that the parties who entered litigations in that respect were conveniently found by the definite law to follow the same without indulging in further controversies and complications for determination of puberty.
- Muhammad Akram Gondal for Petitioner (in Sh.P.No.6/I of 2004).
- Nemo for Petitioner (in Sh.P.No.27/I of 2004).
- 9. We have thoroughly considered the contentions raised by learned counsel for the petitioners. Before dealing with these contentions, we would like to make it quite clear that this Court is empowered to examine Laws, as defined in Article 203-B(c) of the Constitution of Islamic Republic of Pakistan, only on the touchstone of Injunctions as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) so far as the opinions of Muslim Jurists, as relied upon by the learned counsel for petitioner, are concerned, we have great regard for their opinions and always feel highly pleased and inspired to obtain guidance from the same. However, according to the constitutional requirements, we cannot declare any law or its provisions repugnant to the Injunctions of Islam merely on the basis of an opinion expressed by a Muslim Jurist. Regarding the question under consideration, we have minutely gone through the relevant injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) but have been unable to find any specific Verse or authentic Hadith, in this particular matter that could be quoted to support the contentions raised by the learned counsel for petitioner. It is also worth mentioning that mere manifestation of the physical symptoms of attaining puberty, as submitted by the learned petitioner, are not by themselves sufficient to hold that the concerned person has also attained the age of majority/maturity. Beside that, there are definitely other mental, emotional and psychological aspects also that form necessary basis for that purpose. The Holy Qur'an has, in certain matters, considered and referred to the same, as we may conveniently find in Verse No.6 of Surah Annisa and Verse No.59 of Surah Annoor. Moreover, it is noticeable that the ages in attaining physical puberty vary from place to place and from person to person and no definite criteria can be specified to exactly determine who attained puberty and on which date. This is the reasons why even the renowned Muslim Scholars are not unanimous on this point and have held divergent opinions in respect of age of puberty. It will be appreciated to note that, for the purpose of legislation a specific age limit has to be fixed by the legislature so that the parties who enter litigations in this respect are conveniently bound by a definite law to follow the same, without indulging in further controversies and complications for determination of puberty. We may also add that the verse and other citations relied by the petitioners are general in nature and do not at all support the contentions raised by them.
Headnotes / Summary
Arts. 203-B(c) & 203-D
Majority Act (I of 1875), S.3
Contract Act (IX of 1872), S.11
Repugnancy to injunctions of Islam
Petitioners had called in question S.3 of Majority Act, 1875 read with S.11 of Contract Act, 1872, praying that same be declared repugnant to injunctions of Islam
Contention of counsel for petitioners was that age of 18 years as mentioned in impugned S.3 of Majority Act, 1875, was against injunctions of Islam and a source of botheration for the father as he had to provide maintenance to his son till age of 18 years, despite the fact that his son might have much earlier attained puberty according to Islamic injunctions
Shariat Court was empowered to examine laws as defined in Art.203-B(c) of the Constitution, only on the touchstone of injunctions as contained in Holy Qur'an and Sunnah of Holy prophet (p.b.u.h.)
Court had great regard for opinion of Muslim Jurists, however, according to constitutional requirements, Shariat Court could not declare any law or its provisions repugnant to injunction of Islam merely on basis of opinion expressed by a Muslim Jurist
No verse of Holy Qur'an or authentic Hadith, on said particular matter could be found to support contentions raised by counsel for petitioners
Mere manifestation of physical symptoms of attaining puberty, as submitted by counsel for petitioners, were not, by themselves, sufficient to hold that concerned person had also attained the age of majority/maturity
There were definitely other mental, emotional and psychological aspects also that would form necessary basis for that purpose
Ages in attaining physical puberty, would vary from place to place and from person to person and no definite criteria could be specified' to exactly determine who attained puberty and on which date
Such was the reason why even renowned Muslim scholars were not unanimous on that point and had held divergent opinions in respect of age of puberty
For the purpose of legislation, a specific age limit had to be fixed by the legislation so that the parties who entered litigations in that respect were conveniently found by the definite law to follow the same without indulging in further controversies and complications for determination of puberty.
Judgment & Decree
DR. FIDA MUHAMMAD KHAN, J.
The petitioner Muhammad Fayyaz son of Bundoo Khan has, through his counsel, challenged section 3 of the Majority Act (IX of 1875) and has prayed that the same, according to him being repugnant to the injunctions of Islam, may be declared as such.
2. Another petitioner Abdul Salam son of Abdul Aziz has also called in question the said section read with section 11 of the Contract Act (IX of 1872) and has prayed that the same be declared repugnant to the Injunction of Islam.
3. Since both the petitioners have challenged one and the same section, we dispose both the Petitions by this single judgment.
4. For easy reference the said section is reproduced hereunder:-- Section 3 of the Majority Act (IX of 1875). "Subject as aforesaid every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the C.P.C. has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall notwithstanding anything contained in the Indian Succession Act (No.X of 1865) or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before. Subject as aforesaid, every other person domiciled in (Pakistan) shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before."
5. We may point out that the petitioner Muhammad Fayyaz has also sought personal relief against the maintenance of his son who according to him has attained puberty and has prayed that the order passed by the learned Judge Family Court Phalia on 22-5-2004 whereby he has rejected an application moved by him in this respect be declared void, besides the prayer that an injunction in favour of the petitioner be passed with the direction that he should not be harassed and taxed for the maintenance of his son Respondent No.4, till the final adjudication of this petition.
6. So far as the grant of relief in personam sought by petitioner Muhammad Fayyaz, as mentioned in para.5 supra, is concerned that is admittedly beyond the jurisdiction of this Court and therefore, it cannot be granted. However, the question concerning the impugned law raised in the petition needs consideration.
7. We have heard learned counsel for the petitioner as well as the learned Standing Counsel for Federal Government.
8. Learned counsel for the petitioner vehemently contended that the age of 18 years as mentioned in the impugned section is against the Injunctions of Islam and a source of botheration for the father as he has to provide maintenance to his son till the age of 18 years in spite of the fact that his son might have much earlier attained puberty according to Islamic Injunctions. The other petitioner in his written arguments has made identical submissions and placed reliance on a Hadith and opinion of Muslim, Jurists. Learned counsel on behalf of the State, however, opposed the same contentions and stated that there is nothing in the said section which could be called in question and considered as repugnant to the Injunctions of Islam.
9. We have thoroughly considered the contentions raised by learned counsel for the petitioners. Before dealing with these contentions, we would like to make it quite clear that this Court is empowered to examine Laws, as defined in Article 203-B(c) of the Constitution of Islamic Republic of Pakistan, only on the touchstone of Injunctions as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) so far as the opinions of Muslim Jurists, as relied upon by the learned counsel for petitioner, are concerned, we have great regard for their opinions and always feel highly pleased and inspired to obtain guidance from the same. However, according to the constitutional requirements, we cannot declare any law or its provisions repugnant to the Injunctions of Islam merely on the basis of an opinion expressed by a Muslim Jurist. Regarding the question under consideration, we have minutely gone through the relevant injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) but have been unable to find any specific Verse or authentic Hadith, in this particular matter that could be quoted to support the contentions raised by the learned counsel for petitioner. It is also worth mentioning that mere manifestation of the physical symptoms of attaining puberty, as submitted by the learned petitioner, are not by themselves sufficient to hold that the concerned person has also attained the age of majority/maturity. Beside that, there are definitely other mental, emotional and psychological aspects also that form necessary basis for that purpose. The Holy Qur'an has, in certain matters, considered and referred to the same, as we may conveniently find in Verse No.6 of Surah Annisa and Verse No.59 of Surah Annoor. Moreover, it is noticeable that the ages in attaining physical puberty vary from place to place and from person to person and no definite criteria can be specified to exactly determine who attained puberty and on which date. This is the reasons why even the renowned Muslim Scholars are not unanimous on this point and have held divergent opinions in respect of age of puberty. It will be appreciated to note that, for the purpose of legislation a specific age limit has to be fixed by the legislature so that the parties who enter litigations in this respect are conveniently bound by a definite law to follow the same, without indulging in further controversies and complications for determination of puberty. We may also add that the verse and other citations relied by the petitioners are general in nature and do not at all support the contentions raised by them.
10. In this view of the matter, we have found both these Shariat Petitions as misconceived and therefore dismiss them accordingly. H.B.T./15/FSC??????????????????????????????????????????????????????????????????????? ??????????? Petitions dismissed. ***