Per Muhammad Aqil Mirza, J.(a) Constitution of Pakistan(1973), Article 35
They stated before me that they had contracted marriage with their mutual and free consent on 16-4-1996 an since the both of them had been living together as a married couple. In the these circumstances, when the marriage between a major Muslim woman with a major Muslim man has taken place and consummated, then every effort should be made to protect the marriage, because such is the command enshrined in Article 35 of the Constitution of Pakistan which reads as under:-
“Protection of family etc. The State shall protect the marriage, the family, the mother and the child.”
Major and sane persons, both male and female have the right to contract marriage with their own free will. When a marriage is contracted by a woman without the consent of her parents, it is often seen that effort is made by her parents to undo the marriage. In most of the cases this is done on account of the tribal customs or social taboos or on account of barbarism. However, such considerations have to yield to the constitutional commands, law and the Islamic Injunctions. The divorce obtained through coercion or the recovery of the girl secured otherwise by the parents in most of the cases results in very awful situation. As a result of the consummation of marriage, except in rare cases, the wife conceives and the parents of the girl in the first instance try to kill the still born child in the womb of the mother through abortion. If such efforts fail and the child is born, it leads to still more serious consequence. First, the legitimacy of the child is called in question and secondly, the responsibility to bring up the child is not shared by the parents of the mother and thirdly, she is compelled to marry elsewhere against her wishes. In this the poor lady is put to immense mental torture and hereself is shattered. However, it is heartening to note that these social taboos are gradually loosening their grip on the society, partly on account of religious education by the learned Ulemas and partly due to the awakening through print and electronic media. International exposure of a large number of people of Pakistan through travelling abroad is also making contribution in that behalf.[p. 668, 669] A.
(a) Constitution of Pakistan(1973), Article 29, 35
Art. 29 & 35–Responsibilities and duties of police regarding protection of and interference in matrimonial life of spouses living together, detailed and discussed.
The Constitutional command is that the marriage and the family have to be protected by the State. Under Article 29 of the Constitution it is not only the various organs of the State but persons performing functions in various organs of the State have also to perform their duties in the manner that promotes the principles of policy under Chapter 2, Part II of the Cons- titution, which includes Article 35. The Police Department is an organ and authority of the State and it is he duty of the functionaries of the Police Department to see that they act in a manner which advances the dictates of the Constitution and not in a manner that will negate the Will of the Const- itution givers. In respect of a bona fide marriage validly contracted and in consequence whereof the spouses are living together, the police or for that matter any other functionary of the State has no right to disturb the marital life of the couple. If a complaint is made to the police then, in given circumstances, the police can and should ascertain whether a valid marriage has taken place or not. Once the police officials come to know that a valid marriage has taken place, then brushing aside any other social consideration, they must not act to disrupt or otherwise interfere in the marital life of the spouses. They should not try to snatch the wife from the husband and deliver her to the custody of her parents without her wishes. Such a function should be left to the Courts, which have the exclusive jurisdiction in the matter and which can approached by aggrieved persons for redress of their grievance. In case where the marriage has taken place though Nikahnama, the police should avoid to call the wife to the police station, as far as possible, for the purpose of investigation of the case. Because, calling a woman to the police station and exposing her to the rough and tough atmosphere there and particularly in matrimonial disputes, would not be expedient. It is also the common complaint that the police puts undue pressure on the husband to divorce his wife by causing harassment to his parents and other family members. Such a practice on the part of the police is not countenanced by law and in some cases it may even entail criminal liability. There is no law which empowers the police to facilitate any person to obtain divorce from a husband through coercive measures or other- wise interfere in the enjoyment of the martial life of the spouses.[p. 669, 670]B
(c) Constitution of Pakistan (1973) Art. 35 & 9
It is not merely Article 35 but the very fundamental right guaranteed under Article 9 of the Constitution stands violated where a duly married couple is compelled to separation through coercive measures by police or any other person. Article 9 of the Constitution guarantees protection t o life. This Article reads as under:-
“Security of person.—-No person shall be deprived of life or liberty save in accordance with law.”[p. 670]C
(d) Constitution of Pakistan (1973) Art. 9
The word “life” occurring in Article 9 does not merely mean vegetative or animal life, it includes such amenities, facilities and personal rights as should be enjoyed by a person born in free country. The Honourable Supreme Court while explaining the meaning of “life” as occurring in Article 9(ibid), in the case of Shahla Zia v. WAPDA PLD 1994 SC 693 observed as follows:-
“The constitutional law in America provides extensive and wide meaning to the word ‘life’ which includes all such rights which are necessary and essential or leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachment on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this ‘life’ Constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable.”[p. 670]D
Shahla Zia v. Wapda P L D 1994 SC 693 ref.
(e) Constitution of Pakistan (1973) Art. 9
In my considered view the word ‘life’ as used in Article 9 (ibid) also means a happy life which a married couple is entitled to lead and enjoy. Life without personal rights is not worth living. Enjoyment of personal rights including the right of a married couple to establish home and live together is a basic human right which has been protected under Article 9 of our Constitution. This right inheres that the married couple is entitled to enjoy each other’s company and to live together without fear or hindrance. If the spouses are deprived of their right to live together and they are compelled to live separately against their wishes then it will be a worst kind of violation of their fundamental right guaranteed under Article 9 of the Constitution. The duty of the police is to act in aid of the Constitution and the law. Neither the police nor any other functionary of the State has any right to cause harassment to a married couple or their family members with a view to cause separation between the spouses. The duty of the police lies in protecting the martial life of a duly married couple and not to cause any hindrance therein. The police should not lend a helping hand in depriving the spouses of their fundamental right to live together peacefully.[p. 670] E
Shahla Zia v. Wapda P L D 1994 SC 693 ref.
(f) Muhammadan Law—
—Marriage—Presumption of valid marriage—Dower—Bona fides of the marriage may be presumed where husband with a view to safeguard the future interest and security of the wife has fixed an adequate dower in the shape of money or property or both. [p. 672] F
(g) Muhammadan Law—
If that happens, the society generally and the parents and other relatives of the woman will have to suffer in humiliation immensely. It may be pointed out that strict observance of the limits prescribed by Allah by the spouses is the pivot point of the institution of marriage in Islam. That is why, where the spouses cannot keep the limits prescribed by Allah, the marriage is dissolved by the Courts on that ground alone. Therefore, to destroy a lawful wedlock against the wishes of the wife is not desirable even on the moral grounds.[p. 673]G
(h) Constitution of Pakistan (1973) Art. 199
Indeed the dower in the form of immovable property is a great security for the wife who on account thereof is accepted in the husband’s family with respect and dignity. Since the marriage contracted with free consent is between the cousins and adequate dower in the form of gift of immovable property has also been provided for benefit of the wife, the marriage is accordingly found to be a bona fide transaction.[p. 673]H
The writ petition was disposed of by the short order with the following directions:-
“In view of the statement made in Court by Mst.Sajida Bibi and Muhammad Ramzan (who are first cousins inter se) that they have contracted marriage on 16-4-1996 with their own free consent, it is directed that the respondent shall not cause any harassment to the petitioners or other family members of petitioner No.2.”[p. 674]I