1. Qazi Faez Isa, C.J.--Petitioner No. 1, Mst. Giran Naz alias Shagufta Bibi daughter of Babu Dostain, and Petitioner No. 2, Noorullah son of Shaista Khan, have filed the instant petition under Article 199 of the Constitution seeking directions to be issued to Superintendent Darul-Aman, Quetta to arrange their marriage according to injunctions of Islam and thereafter Petitioner No. 1 to be released from Dar-ul-Aman as wife of Petitioner No. 2.
2. The petitioners are residents of district Loralai. Petitioner No. 1 left her house because her brothers were not willing to give her hand to the Petitioner No. 2 in marriage and she took shelter in Dar-ul- Aman, Quetta in February, 2009. As per the affidavit of the Petitioner No. 1 her father is dead and she has a mother, three brothers and a married sister. However, only one brother, namely Din Muhammad opposed the marriage and sought custody of Petitioner No. 1.
3. An application before the Judicial Magistrate, Loralai was submitted seeking Court marriage of the petitioners. The Judicial Magistrate however dismissed the said application vide order dated 25.7.2009 on the ground that, "it is not necessary that Court marriage be held at Loralai as the lady is in the custody of Darul-Aman Quetta" and advised to submit application be filed before the competent Court at Quetta. Thereafter, the Petitioner No. 2 filed an application before the Sessions Judge, Quetta, who rejected the same vide order dated 16.11.2009. The operative portion of the order passed by the Sessions Judge, Quetta reads as under: "Let the matter be resolved between the parties first and then custody of the Respondent No. 1 can be shifted to her parents or applicant which too with her consent and satisfaction of concerned Court i.e. Judicial Magistrate-IV, Quetta."
4. The Petitioner No. 1 thereafter approached the Judicial Magistrate-IV, Quetta, who after hearing the parties rejected the application vide order dated 26.11.2009 as amicable settlement had not been arrived at. Hence the instant Constitutional Petition.
5. The question for consideration before this Court is whether the impugned orders whereby the petitioners were not permitted to marry and or such marriage was made dependent on settling the matter with the girl's family was in accordance with the Constitution of Pakistan and in accordance with the personal law of the parties, who are Muslims.
6. Article 4 of the Constitution of Pakistan mandates that no person can be prevented from or be hindered in doing that which is not prohibited by law and that it is the inalienable right of every citizen to be treated in accordance with law. Pakistan law does not prevent an adult lady to marry an adult man of her choice.
7. Under the Principles of Policy Chapter of the Constitution of Pakistan Muslims are enabled to live their lives in accordance with the fundamental concepts of Islam (Article 31) and the State is required to protect the institution of marriage (Article 35).
8. The Holy Quran mentions the tranquility, beauty and love to be found in marriage: "And among His Signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them, and He has put love and mercy between your (hearts): Verily in that are signs for those who reflect.
9. " Surah Ar-Rum (30), verse 21 And spouses are the adornment of each other, "They (women) are your garments, and you (men) are their garments"
10. Surah Al-Baqarah (2), verse 187 Almighty Allah, the Creator of the heavens and earth, reminds us about the importance of creating mates: "The Creator of the heavens and the earth, He has made for you mates from amongst yourselves,"
11. Surah Ash-Shura (42), verse 11 "He created you (all) from a single person, Lien made from him his wife"
12. Surah Az-Zumar (39), verse 6 "And We have created you in pairs,"
13. Surah Al-Naba (78), verse 8 And Allah has made for you mates of your own kind,"
14. Surah An-Nand (16), verse 72 In the amazingly wonderful and beautiful world of the Creator marriage and spouses have a central role and family members cannot be permitted to prevent an adult man and woman from marrying or force them into a relationship that they do not willing enter into or one that they may abhor or hate. Despite the fact that the Petitioner No. 1 has been in seclusion in the Dar-ul-Aman at Quetta for over a year she is still resolute and determined to marry Petitioner No. 2 and has also stated so before us. Moreover, one of us (Mrs. Justice Syeda Tahira Safdar) took her aside in Chambers and asked the Petitioner No. 1 to remove her veil to ensure that she was old enough and understood the ramifications of her decision and found that Petitioner No. 1 appeared to be a major and that she was adamant to get married to Petitioner No. 2.
15. Under such circumstances the petitioners cannot be prevented to enter into marriage with each other. In view of the fact that the Petitioner No. 1 is a yateem, insofar as her father is dead, it also falls upon us to ensure that a reasonable amount is fixed as her mehr because the Holy Quran prescribes, that, And give to the women their mehr"
16. Surah An-Nisa (4), verse 4 They ask your instruction concerning the women, say: Allah instructs you about them, and what hath been recited unto you in the Book concerning the orphan girls whom you give not the portions prescribed, and yet whom ye desire to marry, and the children who are weak and oppressed, and that you stand firm for justice to orphans.
17. There is not a good deed which you do, but Allah is well-acquainted therewith."
18. Surah An-Nisa (4), verse 127 We accordingly set aside the aforementioned orders and direct the Superintendent Dar-ul-Arran Quetta to arrange the marriage of the Petitioner No. 1 with Petitioner No. 2 and, unless the Petitioner No. 2 demands a higher amount as mehr, fix the mehr at Rs. 100,000/-(Rupees one hundred thousand only). After the performance of nikah the Petitioner No. 1 be permitted to leave Dar-ul- Aman in the company of Petitioner No, 2 as his wife.
19. Petition is allowed in the aforesaid terms.