ALI UMAR AND ANOTHER vs MUHAMMAD ANWAR
This petition arises from a civil dispute over the inheritance of the late Mst. Kaniz Akhtar, whose property mutation in favour of her husband, Muhammad Anwar, was challenged by her mother and brother on the ground that her marriage was invalid due to minority, subsequent repudiation upon puberty, and divorce. The trial court decreed the suit in favour of the plaintiffs, but the appellate court and subsequently the Peshawar High Court in revision set aside the decree, holding that the marriage was not invalid under the Child Marriage Restraint Act even if she was under 16, and that she was likely above 18 based on a prior property sale. Upon a petition for leave to appeal, the Supreme Court observed that the High Court overlooked material circumstances and conflicting evidence regarding the deceased's exact age at the time of her marriage and death. The Court held that leave to appeal should be granted to thoroughly examine the factual inferences regarding the deceased's age, the legal validity of a marriage contracted below certain ages without a wali in light of Islamic jurisprudence, and the applicability of prior precedents from the Supreme Court.
- Is the inference as to the age of the deceased drawn by the High Court correct based on the evidence on record?
- What was the age of the deceased at the time of the nikah and what is its effect on the validity thereof?
- Could a marriage be validly performed without a wali for nikah under the relevant legal and Islamic principles?
- What is the effect of the observations in Mst. Bakhshi v. Bashir Ahmad in the light of further observations in Muhammad Azam v. Muhammad Iqbal?
- Child Marriage Restraint Act
ORDER
' M. S. H. QURAISHI, J.-The facts giving rise to this petition are that Mst. Kaniz Akhtar who had been married to Muhammad Anwar respondent on 28-4-1965 died on 11-2-1967 without consummation of the marriage. Mutation of inheritance of her property was attested at No, 2762 dated 5-7-1968, giving Muhammad Anwar his share as husband. This was challenged by a suit brought by Ali Umar, her brother (petitioner No. 1) and Mst. Zulekba, her mother (since dead and represented by petitioner No. 1) for a declaration that the said mutation was ineffective against their rights and that Muhammad Anwar could not get any share in the inheritance from Mst. Kaniz Akhtar on the ground that she being a minor at the time of the marriage, the nikah was invalid, that on attaining puberty she had repudiated the marriage and that she had also been divorced by her husband.
The trial Court found in favour of the plaintiffs and came to the conclusion that there was no relationship of husband and wife between the respondent and Mst. Kaniz Akhtar and accordingly decreed the suit. On appeal, however, the decree was set aside. The plaintiffs then filed revision before the Peshawar High Court, in which they pressed the only point that the nikah of Mst. Kaniz Akhtar with the respondent was illegal being violative of the provisions of the Child Marriage Restraint Act inasmuch as she was below the age of 16 at the time of the marriage. The contention did not find favour with the High Court as it held relying on Mst. Bakhshi v. Bashir Ahmad (I), that even if she was below 16, her marriage did not become invalid on that score and that in "any case she would not be less than {{FOOT NOTE}}
(1) PLD 1970 SC 323 {{FOOT NOTE}} ' 16 years of age in 1965 when she was married to the respondent". The High Court also noticed that the deceased and Ali Umar petitioner had jointly sold some property on 15-1-1966 and found force in the submission that as no sale could be validly effected by a person below 18, she was already above that age in January 1966. The High Court, therefore, dismissed the revision.
2. It seems that serious attention was not given to certain circumstances about the age of the deceased. Firstly, the register Exh. P. W. 2/3 shows that on 11-2-1967, i,e, at the time of her death, she was 15 years of age which means that she had been born in 1952. Thus at the time of nikah in 1965, she could be less than 14 years of age. Secondly, Dure Aman (D. W. 1), Mukhtar of the defendant, admitted that her age at the time of nikah was 14 years, thirdly, the evidence of both the parties showed that when the father of the deceased returned to the country in 1949, she was not yet born.
She could thus be only 14/15 (if born in 1950/1951) at the time of nikah in 1965. Fourthly, her age mentioned in the nikahnama was 17. Fifthly, at the time of the sale mutation, the mother, according to Ali Umar had acted as guardian for both.
3. In the circumstances, the following questions would arise for circumstances :
(1) Is the inference as to the age of the deceased drawn by the High Court correct ? If not, what was the age of the deceased at the time of the nikah and with what effect on the validity thereof-if she was less than 15 years, less than 16 years or less than 18 years-and whether it could be validly performed without a wali for nikah? The Federal Shariat Court's judgment in Muhammad Imtiaz and another v. The State P L. D 1981 F SC 308 would require examination.
(2) The effect of the observations in Mst. Bhakshi v. Bashir Ahmad, P L- D 1970 SC 323 in the light of the further observations in that regard in Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 at p. 132 also requires examination.
4. Leave to appeal is, therefore, granted. Security Rs, 2,500.