By means of this judgment, I propose to dispose of Writ Petition No.13013/96 (Mst. Ayesha Ijaz v. The S.H.O.) and Writ Petition No.11995/96 (Mst. Shabina Zafar v. The S.H.O. And others).
2. The facts of the case (W.P. No.13013 of 1996), briefly, are that Ijaz Ahmed son of Muhammad Iqbal, Arain, resident of 7-B, Housing Colony, Toba Tek Singh, lodged F.I.R. No.307/96 at P.S. City Toba Tek Singh on 18-7-1996 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979.
3. According to the first informant, on 15-7-1996 at about 12-00 noon he left his shop for his house for lunch. His daughter Ayesha was present in the house. Slightly 'afterwards Mst. Ghafooran accused came from the adjoining house and invited Mst. Ayesha to her house for some talk. He busied himself in the lunch, whereas Ayesha told her that she would be back within a few minutes after visiting the neighbours. She, however, did not come back despite lapse of sufficient time. So, the complainant went to the house of Ghafooran and inquired about her daughter. She, however, could not give a satisfactory reply and he set out in search of Ayesha. During this while Muhammad Aslam son of Ch. A.I Muhammad and Muhammad Aslam son of Muhammad Hussain who were present atthe end of the street informed him that Shahid, Manzoor, Zafar Iqbal accused and Ayesha had left the place in a car some time back. He went back to the house whose inmates had invited his daughter but they got furious and told him that Ayesha had left the house (with Shahid) voluntarily in pursuance of their earlier sex relations.
4. Mst. Ayesha, the daughter of the complainant, has filed this writ petition claiming that she had already been engaged to her present husband two years prior to this occurrence and it was agreed that on doing Matriculation she would be married to Shahid. The father of the petitioner, however, backed out of this commitment and planned to marry her to someone else. Since she had already been engaged and was mentally prepared to wed Shahid, she, therefore, decided to get married with him on her own. She went to Multan, summoned Shahid and both got married.
Nikah was registered with the Nikah Registrar of Multan vide Nikahnama, Annex-A; that the petitioner was major and being sui juris was competent to enter into the contract of marriage.
Questioning the validity of the F.I.R., in these circumstances, it was prayed that the respondent be directed not to cause harassm ent to the petitioner and not to disgrace and humiliate her, her husband and his relations.
5. The parents of the petitioner were summoned by this Court in order to ascertain the real position.
Ijaz Ahmed, her father, who is aged 44 years and is resident of T.T. Singh stated on oath that Mst.
Ayesha Ijaz, present in the Court, was his daughter. Her age was 13. Years, 8 months and a few days.
She being of tender age, was induced by Shahid, Zafar Iqbal, Manzoor Hussain and Mst. Ghafooran Bibi to accompany them. Case F.I.R. No.307/96 was got registered by him at P. S. City Toba Tek Singh under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. On the third day of her abduction the complainant came to know that she had been made to enter into some marriage contract at Multan. He was not aware as to with whom she had been shown to have married and this marriage was not acceptable to him and this was a clear case of abduction.
He, therefore, prayed at the end of his statement, that the minor petitioner may be handed over to him. Mst. Abida, wife of Ijaz Ahmed and mother of the petitioner also made a similar statement.
6. The facts of Writ Petition No.11995/96, however, are slightly different. The parties reside in Faisalabad Town and the F.I.R. Was lodged by Zafar Iqbal, Sandhu Jat of Batala Colony, Faisalabad.
According to him, Muhammad Iqbal son of Muhammad Sharif of M.Uhallah Waryam Singhwala, near Babar Chowk, was a part-time servant with him. At times he would visit his house and on 24- 6-1996 Iqbal alongwith his sisters, Shehnaz and Shahida Parveen, who too were on visiting terms with the complainant's family, came to their house. A shortwhile later they conversed with his daughter, Shabina Zafar. In the evening. They requested his wife to permit Shabina Zafar to accompany them to the market for some shopping in connection with a marriage. His wife allowed Shabina who left the house with a small purse and a shopping bag containing some articles. At about 5/6 p.m. He came to know that Iqbal and another person were making Shabina Zafar to sit in a rickshaw. The wife of the complainant, however, examined the Almirah containing valuables and found that prize bonds worth rupees one lac and gold ornaments weighing 12 tolas belonging to his wife were missing. Shabina did not turn up till late in the night. Ultimately it became clear that she had been abducted by the accused party alongwith valuables
7. In the writ petition Shabina has claimed that she has voluntarily married N4uhammad Iqbal on 25-6-1996 vide Nikahnama (Annexure A) and has been living with him as his wife; that the case F.I.R. No.256/96 registered against her and her husband at the instance of her father with the connivance of local police merits to be annulled on the grounds, inter alia, that the petitioner being sui juris was competent in law to enter into her wedlock; that the Nikah of the petitioner was performed on 25-6-1996, whereas the F.I.R. Was recorded on 29-6-1996 on fake and fictitious grounds; that the delay has not been explained anywhere; that she had appeared before a Magistrate Ist Class and had made' a statement to the effect that she had voluntarily married Muhammad Iqbal and no coercion or undue influence had been employed upon her. As such the F.I.R. Has no basis and merits to be quashed.
8 Her father and mother appeared in the Court and claimed that they had never marred their daughter to Muhammad Iqbal and this was clearly a case of abduction,
9. Comments of the respondent S.H.O. Were called. According to him, after the registration of the case; it came to light during the investigation that being seduced by her paramour Shabina was made to stay in Shamshad Hotel, Lahore, where the accused managed Nikahnama showing his marriage with the petitioner. This proved to be forged and fake. The petitioners have, however, not joined investigation, as such, the Investigating Officer has not been able to complete the same 10 In both the cases, although there is a slight difference in the ages of the two petitioners, namely, Mst. Ayesha and Mst. Shabina, Ayesha being slightly over 13 years of age, whereas Shabina is alleged to be 19 years, nevertheless there is a common ground taken by both the learned counsel for the petitioners that both are sui juris and are entitled to marry as per their sweet will. This is a civil contract pure and simple and any man or woman who is major (attained puberty) and is sui juris and is competent to enter into a contract for a consideration which is known as dower. As such, no case should have been registered against either of the petitioners.
11. On the other hand, it is contended by the learned counsel for the respondents that this is not a purely civil contract in which offer and acceptance coupled with consideration is sufficient to constitute the contract. This is an institution and an Islamic Institution which has background and detailed history and if every girl who attains puberty is allowed to run away and enter into the trap of clever persons, the fabric of family system would stand destroyed and there will be complete anarchy in the society. The writ petition, according to the learned counsel for the respondents, is baseless and deserves forthwith dismissal and the police should be allowed to investigate the matter fairly and properly to take it to its logical conclusion.
12. Arguments have been heard from both the sides rather at length and the record has been perused. Since an issue of very vital importance has arisen, I would like to discuss it in some detail.
13. In support of their contentions, reference has been made by the learned counsel for the parties to various judgments of the superior Courts including Abdul Qadir v. Salima (ILR 8 All. 149), Anis Begum v. Muhammad Istafa Wali Khan (ILR 1933 All. 55 p.743), Khurshid Bibi v. Babu Muhammad Amin (PLD 1967 SC 97) and to various Qur'anic Ayats, Ahadis and principles of Sharia.
14. After going through the history of developments of this branch of law in India and after 1947 the decisions of superior Courts in Pakistan, it appears that the detailed survey should be made of the case-law and of the views which found favour with the Hon'ble Judges while interpreting the law on the point and deducing principles of Sharia.
15. The first case on the point in which it was declared that marriage was purely a civil contract was Abdul Qadir v. Salima (ILR 8 All. 149) decided by Syed Mehmood, an eminent Judge of Allahabad High Court, over a century ago. In this case Abdul Qadir filed a suit for restitution of conjugal rights against his estranged wife Salima. In defence she pleaded, among other things, that she had not been paid her dower as such suit was not maintainable. It was, however, decreed by the Civil Judge, Mirpur, but the finding was reversed and suit dismissed by the lower Appellate Court. The matter came to the High Court and Justice Syed Mehmood reversed the findings holding that this was not a valid defence. It was also held that marriage was purely a civil contract and is comparable to a contract of sale of goods. It would be instructive to quote the relevant portion of the judgment at pages 165-167:-- "The same is the effect of the passage which I have cited from the Fatawa Qazi Khan and the Fatawa Alamgiri and the rule, as stated by the Muhammadan Jurists, bears, in the eye of jurisprudence, the strongest possible analogy to the ordinary rule of the law of sale, which has been best stated in section 95 of the Indian Contract Act (IX of 1872), namely, that 'unless a contrary intention appears by the contract, a seller has a lien on sold goods as long as they remain in his possession and the price or any part of it remains unpaid.' The same is the principle upon which, in the law of sale, the right of stoppage in transitu is based, and the lien which the vendor has amounts to nothing more or less than the definition given by Grose, J. In Hammonds v. Barclay (1), that it is 'a right in one man to retain that which in his possession belonging to another till certain demands of him, the person in possession, are satisfied.' Bait this lien essentially presumes the right of ownership in the vendee, and terminates as soon as delivery has taken place. I have followed up the analogy of sale so far, because nearly the whole argument of the learned pleader for the respondents proceeded upon the circumstance that in the passage, which he cited, marriage has been compared to sale, dower to the price, and surrender of the wife to her husband to delivery of goods in the law of sale.
Now, bearing this in mind, it is clear that the two disciples of Imam Abu Hanifa, regarding the surrender of the wife to her husband as bearing analogy to delivery of goods in sale, held that the lien of the wife for her dower, as a plea for resisting cohabitation, ceased to exist after consummation. According to the ordinary rule of interpreting Muhammadan Law, I adopt the opinion of the two disciples as representing the majority of 'the three Masters', and hold that, after consummation of marriage, non-payment of dower, even though exigible, cannot be pleaded in defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in separate action. "
16, Nature of marriage was not in issue in that case and it appears to be an obiter dictum. A Division Bench of Allahabad High Court in Anis Begum v. Muhammad Istafa Wali Khan (ILR 1933 Allahabad Vol. LV page 743) had again to consider the right of a wife to plead non-payment of the dower as a defence to an action for restitution of conjugal rights, even after consummation. Hon'ble Chief Justice, Sulaiman (with whom Thorn, J. Concurred) agreed with Syed Mehmood, J. On this.Point. As for the observation qua the position of a marriage the Chief Justice totally disagreed with Mehmood, J. And held: "The line of reasoning based on the analogy of sale has naturally been very severely criticised at page 148-9 in Wajid A.I Khan's case (2) by the Oudh Bench, and so also by Mr. Ameer A.I in his Muhammadan Law, Volume 11, pages 459-60. No doubt the Muslim commentators have, by way of illustration, applied certain principles governing a contract of sale of goods to the contract of marriage, but that was by way of analogy only. The similarity cannot be pushed too far, nor can the principles governing the sale of goods be applied in all their details. Indeed, if one were to pursue the analogy far enough there would be a reduction ad absurdum. "
17. Again strongly refuting this theory his lordship observed at pages 755-56 of the judgment : "It is quite obvious that the analogy of the sale cannot be carred too far. The marriage cannot be regarded as purely a sale of the person of the wife , in consideration for the payment of dower and even if such a grotesque analogy were to be carried to its fullest extent, it would not necessarily result in support of the observation in Abdul Qadir's case. The answer will depend on whether the dower is consideration of marriage only or whether it is consideration for the society of the wife during married life. The mere fact that the whole dower becomes due after consummation is no conclusive ground for holding that the dower is consideration only for the first consummation. The lien on goods sold may be lost when possession is lost, but that lien is revived when possession is again recovered. Again if part of the goods have been delivered and part of it is still retained, the lien on the part retained continues. It may, therefore, be well argued that if the wife after the consummation returns to her own house she can still resist the restitution of conjugal rights so long her dower is not paid, because her right has been revived after the cohabitation ceased. It may also be pointed out that a prompt dower does not become payable unless a demand is made.
Prompt dower is dower payable on demand. It follows that no demand might have been made, and in most cases it is not made before consummation of the marriage. The consent of the wife before her dower becomes due should logically not destroy her right to recover her dower after it has become due, though previous to it consummation had taken place. She should have right to insist upon its payment before further consummation. I have not mentioned these points in order to base any conclusion on the analogy of the sales but merely to emphasize that the analogy cannot be carried too far, and even if carried very far, it does not necessarily clinch the matter. It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament."
Consequently, Justice Sulaiman refused to follow the 'purely civil contract doctrine' which is a part of the law relating to mercantile transactions and further clarified that this line of reasoning was wholly unjustifiable in the light of Islamic principles and could not even stand the test of logical deduction.
18. The institution of marriage is at the centre of Muslim Personal Law. The validity of a marriage may determine legitimacy, rights to inheritance, criminal liability for certain sexual acts, as well as the obligations of maintenance etc. Which are attached to the status of marriage. It is generally held that Muslim marriage is not as in Christian theology a holy sacrament but a civil contracts with various and different aspects, overtones and undertones based on Islamic principles. The views of Justice Syed Mehmood that Muslim Marriage is purely a civil contract, are in conformity with the views of Shama Charan Sarkar (Tagore Law Lectures 1875). It is, however, noteworthy that for Muslims, marriage contracts, unlike those of the Hindus, require no specific religious rites and ceremonies. It is, however, strange, rather amazing that till today the nature of matrimonial regime has not been debated and discussed properly in the light of the Islamic Injunctions as laid down in Qur'an and Sunnah and many corners and facets of marriage laws have remained dormant and obscure. It was on account of this fact alone that Justice Mehmood's view appears to have been acted upon throughout this period. This view has been so much stressed that other very important and vital aspects of Nikah have receded into the background.
19. The pronouncement of the Supreme Court of Pakistan in Khurshid Bibi's case (PLD 1967 SC 97), however, leads us to a proper path for determining as to from where and how to find the correct legal guidance. Right from the earlier authorities beginning with Abdul Qadir v. Salima Bibi till the emergence of Pakistan, no substantial reference appears to have been made to the other major essentials of a valid marriage deducable from Qur'an and Sunnah, the major sources of Muslim Law and attempts were made to discuss and debate the issues in the light of cases of certain Jurists leaving aside the express and unambiguous dicta of Holy Qur'an and Sunnah supported by practice of Khulafa-e-Rashidin and Ashaba-e-Kiram.
20. It seems as if proper attention has not been paid to this vital issue. It is, however, an outstanding fact that having become oblivious of the purpose of the creation of this country our society has suffered a great set-back in morals. Family system is rapidly becoming tottering and weak and is likely to crumble down if the rapid decay is not arrested in time. It was observed by their lordships of the Supreme Court in Shaukat A.I v. Altaf Hussain Qureshi and another (1972 SCM R 398) that Courts do not function in vacuum and must take due note of social and moral environments prevailing in the community for which the law is to be administered. The fact that the law requires a Judge to be vigilant and decide matters with open eyes and with a keen observations of social changes in the society also finds support from the judgment of Lord Denning, former Master of Rolls of England who says at page 83 of his book "The Closing Chapter" (1993 Reprint):-- "Not that I doubt the wisdom of Judges reading the newspapers. I think they ought to read them, so as to keep in touch with public opinion. The law ought to accord with the right public opinion of today, and not be against it. Otherwise, it will not be held in respect-. "
21. Now after the introduction of Dish Antenna and propaganda of more than half a dozen of Indian T.V. Stations with their cultural onslaught mainly directed against Pakistan's ideological basis not merely containing obscenity but clearly targetting to destroy Islamic concept of life also, one cannot close one's eyes over the increasing cases of abduction, rape and secret courtships. The Courts are flooded with such-matters and it appears that the legal principles of Sharia are not being properly appreciated and applied by the Courts.
22. The meaning and scope of the marriage and its nature as visualized by the Courts has, to a great extent, been responsible for this tornado of sexual rebellion in the country. As referred to earlier, no attempt till today appears to have been made to reinterpret the matter in the light of the original and major sources of Islam i.e. Qur'an and Sunnah. The Hon'ble Supreme Court had very clearly held in Khurshid Bibi's case (PLD 1967 SC 97) that fundamental laws o; Islam are contained in Qur'an and this is the primary source of law of Muslims. Next comes the Sunnah of the Holy Prophet (p.b.u.h) and thereafter in the sequence is Ijtihad and Ijma. This order of priority in their importance is clear from well-known Hadis regarding Moaz Bin Jabal who was sent by the Holy Prophet (p.b.u.h) as Governor and Qazi of Yemen -- a Province of Islamic Empire. It would be instructive here to quote the exact words of the Supreme Court appearing at page 113 of the judgment: "The fundamental laws of Islam are contained in the Qur'an and this is by common consent, the primary source of law for Muslims. Hanafi Muslim jurisprudence also recognizes Hadith, Ijtehad and 1jma as the three other secondary sources of law. The last two really fall under a single category of subsidiary reasoning, Ijtehad being by individual scholars and 1jma being the concensus of scholars who have resorted to Ijtehad in any one age. That this is the order of priority, in their importance, is clear from the well-known Hadith, relating to Muadh--ibn-Jabal who was sent by the Prophet as Governor and Qazi of Yemen. The Prophet asked him, how he would adjudicate cases. ' By the Book of God', he replied. 'But if you find nothing in the Book of God', how? 'Then by the precedent of the Prophet". 'But if there be no precedent?' 'Then I will diligently try to form my own judgment.' On this, the Prophet is reported to have said, "Praise be to God who hath fulfilled in the messenger sent forth by his apostle that which is well pleasing to the apostle of Allah.'
The four orthodox schools of Sunni Fiqh were headed by Imam Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad-bin-Hanbil. The learned Imams never claimed finality for their opinions, but due to various historical causes, their followers in subsequent ages, invented the doctrine of Taqlid, under which a Sunni Muslim must follow the opinions of only one of their Imams, exclusively, irrespective of whether reason be in favour of another opinion. There is no warrant for this doctrinnaire fossilization, in the Qur'an or authentic Ahadith."
23 As for the nature of marriage, it was held that it was not a sacrament, but a contract. Such a contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be subject of dissolution for good cause. In this respect, Islam, the p Din-ul-Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy dead- lock".
24. Institution of marriage has visibly many distinguishing features. Marriage as defined at p.(xix) of the Book "The Muslim Law of Marriage" by Al-Haj Mahommed Ullah Ibn S. Jung of Allahabad (India) means: "An institution which has many objects such as preservation of the species, the fixing of descent, restraining men from debauchery, the encouragement of chastity, promotion of love and union between husband and wife and of mutual help in earning livelihood. "
25. According to the Story's Conflict of Laws, the contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilised society. The status of marriage is jus gentium. According to Sir Abdur Rahim, Muslim jurists regard the institution of marriage as partaking both of the nature of ' Ibadat' or devotional acts and 'Muamalat' or dealings among men. The intimate connection between religion, law, and even politics is so interwoven in the Muslim faith that it is difficult to draw defined and clear ' distinctions, the moreso when marriage is regarded as the pillar of faith and Sunnat-e-Muvakida by all the jurists. Muslim marriage, according to Mr. Verma's Book, 'Muslim Marriage, Maintenance and Dissolution' (II Edition, page 16) "differs radically from original Hindu conception which provides for indissolubility of marriage even after death".
26. Adverting to the Supreme Court's judgment in Khurshid Bibi's case, let us now examine this theory of marriage as 'purely a civil contract' in the light of Holy Qur'an and Sunnah and in the opinions of great Jurists of Islam. It would appear, after thorough examination, that the marriage in Islam is not purely a civil contract as envisaged in Tagore's Law Lectures and subsequently endorsed in Abdul Qadir v. Salima's case. According to Islam:
(i) Nikah, as observed earlier, is one of the most important institutions. It has very far-reaching consequences and is at the centre of Muslim Personal Law. In Al-mughni (Vol-6, p.446 published in Cairo, Egypt), the celebrated jurist, Ibne Qudama writes: "There is a consensus amongst the jurists that Nikah is a religious matter. "
Since there is consensus amongst the jurists opposition of this view is not allowed according to juristic principles.
(ii) As declared by the Holy Prophet: (It is his Sunnah and he whosoever does not act upon it, is not from amongst his followers).
This Hadith has been reported by Bokhari in the chapter of Marriages.
Again it is reported that the Prophet (peace and blessing be upon him has declared four things as his Sunnah i.e. Chastity, use of Miswak, use of perfume and to effect marriage. Imam Shaukani, once Chief Justice of Yemen, writes in his Book of Jurisprudence: "One who fears that he would fall into sin, it is his duty to marry."
(iii) Syed Ameer A.I, while interpreting Surah Noor Ayat No.32, declares that it is incumbent upon those who are competent to marry to enter into wedlock.
(iv) A celebrated commentator of Holy Qur'an, Hafiz Ibne Kaseer also writes in Tafseer-e- Mawahab-ur-Rehman (Vol.6, p.208, 19?7 Publication that a group of Ulema consider marriage as Wajib upon those who can afford to enter into wedlock and to bear the expenses of their wives and children.
(v) Nikah being a religious as well as mundane duty results in the pleasure of God whereas civil contract does not result in the earning of bounties of Allah.
(vi) According to Sahih-e-Muslim (Vo1.2, p.482 published by Sh. Muhammad Ashraf, Anarkali, Lahore), a sexual act with one's own wife tantamount to an act of piety and shall be rewarded by Allah.
(vii) The purpose of Nikah is to set up a family and to fortify the spouses from illegal sex and thereby incurring displeasure of Allah. The word 'Nikah' is equal to an Arabic word, "Hisan" which means "fort": This shows that a married man/woman gets protected in a fort and does not fall prey to any mischief and no one can damage him/her so long he/she remains protected in the fort.
Those women who are not afforded such protection are termed as "Khadan" plural of which is "Akhdaan" which means paramour and his beloved.
(viii) In Islam every respectable woman remains under the protection of her family/tribe. Before marriage she is protected by her parents, after marriage she comes under the protection of her husband and those women who have no protection of this nature are apt to be swayed by mischief of any one. Such women, according to Qur'an, have no match to pious and noble people.
No such considerations as have been enumerated, exist in a contract of civil nature.
(ix) A contract may be of provisional nature or it may be of permanent duration whereas temporary Nikah is not valid in Islam. Bokhari records a Hadith on the report of Hazrat Abbas: "Narrated A.I: I said to Ibn Abbas, "During the battle of Khaiber the Prophet (peace be upon him) forbade (Nikah) AI-Muta and the eating of donkey's meat."
There are many other Ahadith to this effect and even the great Shia ' Scholar, Ameer A.I, writes in his Book, "The Spirit of Islam" (at page 229):-- "In the laws which the Arabian Prophet promulgated he strictly prohibited the custom of conditional marriages, and though at first temporary marriages were tacitly allowed, in the third year of the Hegira even these- were forbidden.
1. (A section of the Shiahs still regards temporary marriages as lawful. But with all deference to the Mujtahids, who have expounded that view, I cannot help considering that it was put forward to suit the tastes of the times, or of the sovereigns under whom these lawyers flourished. In many of their doctrines one cannot fail to perceive the influence of personal inclinations). "
(x) Again in a contract it is not essential that it should be between two opposite sexes, even two females can enter into any contract and so also two males can bind themselves in a contractual obligation but in Nikah it is a must that the husband and wife should belong to two opposite sexes.
(xi) Nikah is prohibited with Mahrams. Qur'anic commandment is: "Forbidden to you (for marriage) are : Your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters------."
As such marriage between these relations is clearly prohibited whereas there is no such restriction for entering into a contract.
(xii) A contract may be entered into secretly whereas a secret Nikah is not a valid Nikah. It must be proclaimed and proclaimed openly so that it ' may be known to the people that the spouses are validly wedded.
There is a Hadith coming from Hazrat Ayesha (reported by Ibne Majah, Tirmzi and Ahmad bin Hanbal) that "proclaim your marriages". As such, there is a clear distinction between a civil contract and a Muslim marriage, whereas no proclamation is necessary for the validity of a civil contract.
(xiii)Justice Qadirud Din Ahmad in a Karachi Case, Muhammad Yasin v. Khushnuma Khatoon (2 Karachi Weekly Law Reporter 29 (1960), discussing the characteristics of marriage contract had earlier observed that "if religious ritual is not an essential part of the transaction it does not mean that it has no sacred and no higher religious purpose enjoying the sanctity of religion and pleasure of God. There is a sanctity attached to it from the beginning to the end by the conceptions of rights and obligations which, if treated without the holiness which they possess in their nature, would be profane and cease to be Islamic in character.
Commenting on this view Keith Hodkinson in his Book Muslim Family Law (published by Croom Helm, London and Canberra, 1984) observed: "Nikah in Islamic Shariah is not merely a civil contract, it has attached to it a religious sanctity as well, has a sound basis Nikah to a Muslim does not only bring legal and social advantages, it also confers on him innumerable religious and spiritual benefits."
(xiv) According to Islamic law Nikah is valid only between a Muslim male and a Muslim female. A Muslim male can also marry with a Kitabia woman but there is no such restriction for entering into a civil contract.
27. Now let us examine the conditions for a valid marriage in the light of Holy Qur'an and Sunnah together with the views of the great jurists of Islam.
The jurists have mentioned a number of conditions for a valid marriage but there is a consensus about the following conditions that if either of them does not exist, no proper marriage takes place and in the absence of the first two conditions, namely, the consent of Wali and the consent of the parties to Nikah, a marriage, if contracted, would be Batil i.e. Wholly void. Principal conditions are as follows:
(i) Consent of Wali or Guardian.
(ii) Consent of the proposed husband and wife if they have attained puberty and subsequent Ejab- o-Qabool by them.
(iii) Payment of dower, and
(iv) Presence of two male witnesses or one male or two female witnesses.
28 I propose to take up for discussion these conditions seriatim:
(i) As for the consent of the Wali, no marriage except the marriages of Holy Prophet (peace and blessing of Allah be upon him) is valid without the permission of Wali of the Woman proposed to be married and this is obvious from the following dictum of Holy Qur'an.
(And any believing woman who dedicates her soul to the Prophet if Prophet wishes to wed her-- this only for the not for the rest of believers). (33:50)
Ibne Kaseer, a celebrated commentator of the Holy Qur'an records the statement of Hazrat Qatada that "no woman shall be competent to enter into marriage save with the consent of her Wali". The only exception to this is the personality of Holy Prophet, as clarified by the Holy Qur'an, presumably for the reason that Apostle of Allah is the Wali of the whole Ummah.
It is clearly mentioned in Al-Mughni a renowned book of Fiqha that it is exclusively for the Holy Prophet to enter into wedlock himself without the consent of the Wali of the wife. No one else is exempted from this rule (Al-Mughni, Vo1.9, page 348).
Hazrat Abu Saeed Khudri reports that there can be no marriage without a Wali, witnesses and the dower but there is an exception in case of Holy Prophet (p.b.u.h.). (Sunan Dar Qutani, Vol.3, page 220, published by Darul Mahasan, Cairo, Egypt).
(And give not your daughters in marriage to Al-Mushrikun till they believe (in Allah). (2:221)
(And marry those among you who are single) (24:32)
Imam Shaukani, Chief Justice of Yemen commenting on the verse, says to that this too is an address to the guardians of the girls.
Imam Qurtabi writes in his commentary (at page 239, Vol. 12 of Tafseer Qurtabi, published by Maktaba Al--Ghazali, Damasscu s) that this provides an argument that a woman is not competent to enter into marriage herself without the consent of her Wali.
The Holy Qur' an further ordains: (Do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms) (2:232)
29. In the Chapter entitled "There can be no marriage without the consent of Wali", Imam Bokhari in his celebrated and most authentic Book "Sahih Bokhari" records that this Ayat was revealed in pursuance of incident of Maaqal bin Yasar. His sister was married and her husband had divorced her only (once or twice) and Iddat had been completed. The husband came to Maaqal seeking his leave to remarry with his sister. Maaqal however, was not agreeable and reprimanded him saying that he had honoured him earlier but he had not responded to the good treatment in a befitting manner and swore that he will not remarry his sister to him. Whereas the fact of the matter was that his sister wanted to enter into a fresh marital union with her former husband. On the revelation of this Ayat, Maaqal bin Yasar allowed his sister to remarry with her former husband after paying the expiation for the oath.
After narrating this Hadith, Imam Bokhari expressed his views that notwithstanding the desire of the sister, Maaqal bin Yasar did not allow her to remarry. This shows and shows clearly that even a Sayyaba, i.e. Widow or divorcee is not competent to marry without the consent of her Wali.
Commeting upon this Ayat, Imam Shafie (who has been described as the master architect of Islamic Jurisprudence by N.J. Coulson, Professor of Oriental Laws, University of London in his Book, 'Islamic Surveys' records in his Book "Al-Umm" that this provides a clear argument that it is a Wali's prerogative to give a woman in wedlock (Al-Umm, Vol.5, page 11, published by Albaz, Makkah Mukarrama).
Commenting upon this very Ayat, Hafiz Ibn Kaseer in his well known commentary records (at page 323, Vol. l, Maktaba Quddusia, Lahore, 1994) that this Ayat clearly establishes that a woman is not competent to enter into a wedlock herself and there can be no Nikah without Wali's consent.
It has also been reported by Ibne Jarir that in pursuance of this commandment it was held by the Holy Prophet (peace and blessing of Allah be upon him) that neither a woman is competent to marry another woman as Wali nor she can herself enter into a wedlock without the consent of her Wali.
Imam Qurtaba in his commentary on the Holy Qur'an records that this Ayat clearly establishes that there can be no marriage without the consent of Wali as Maaqal's sister was again entered into a valid marriage by her Wali even though she was a divorcee. Had she been competent to do so of her own, she would certainly have entered into marriage herself and ought not have required the consent of Maaqal, her brother as Wali (Tafseerul Jamia Ahkamul Qur'an, Vo1.3, page 158, Maktaba Alghazah, Damscus).
Imam Ibne Jarir while commenting on this Ayat states that this verse clearly establishes that there can be no marriage without a Wali (Tafseer Tibri, Vo1.2, page 501 published by Darul Kuttabul Ilmia, Beirut, Lebanon).
There is another verse which goes to show that it is the Wali of a woman who can properly wed her.
The verse is: (Wed them with the permission of their own folk (guardians). (4:25)
Imam Qurtabi again comments on this verse that Nikah can be entered into only with the consent of Wali.
30. That was only with reference to the dicta of Holy Qur---an. Let us now advert to the Sunnah of the Holy Prophet (peace and blessing of Allah be upon him): It is reported by Hazrat Ayesha that the Holy Prophet said that Nikah of a woman which has not been entered into by consent of her Wali is Batil. And ifthere is a dispute between the Walis or if there be no Wali, the Sovereign or the Qazi shall be her Wali. This Hadith has been recorded in Sahih Sunan Ibne Majah, Sahih Sunan A.I Daood, Sahih Sunan Tirmzi, Sunan Dar Qutani al-- Umm Imam Shafei and Nailul Otar by Imam Shaukani.
The second Hadith which we find in various books of Ahadith is: This Haidth equally finds mention in almost all the authentic books of Ahadith.
Hazrat Abu Haraira is reported to have said that neither a woman can marry another woman nor she can enter into wedlock herself. This too has been reported by Ibne Majah and Dar Qutani.
31. Now let us find out what has been the opinion of the companions of the Holy Prophet (Ashaba- e-Kiram).
Hazrat Saeed bin Massayab stated that Hazrat Umar (God may pleased with him) had ordered that no woman should marry without the consent of her Wali and in the absence of Wali without the approval of Qazi.
According to the report of Ikrima bin Khalid an incident took place during the caliphate of Hazrat Umar. During journey one widow/divorcee entered into marriage without the consent of her proper Wali. When the matter was reported to Hazrat Umar, he ordered flogging to both, the woman and the man, for violation of the rules. (Sunan Dar Qutani, Vol.3 page 225, published by Darul Mahasan, Cairo).
32. Dr. Muhammad Rawas, a Professor of Zahran University, Saudi Arabia, has published an Encyclopaedia containing the juristic decisions of all the caliphs separately. He has narrated that a pregnant woman was brought to Hazrat Umar who informed that she was married to such and such person. When the matter was confronted to that man he told the caliph that he had married her while making his sister and mother as the witnesses of Nikah. Upon this Hazrat Umar did not impose Hadd on the couple but they were separated and ordered that there could be no marriage without a Wali.
Another woman had married without the consent of her Wali and when the matter was brought to the notice of Hazrat Umar, he ordered imposition of 100 lashes to her and issued a directive throughout the Provinces of Islamic Empire that if a woman marries without consent of her Wali, she should be treated as adulterous. The Caliph rejected a marriage which was entered into by a woman without the permission of her Wali (Fiqha-e-Hazrat Umar, page 685 published by Muarife- Islami, Mansoora, Lahore, 1994).
Likewise it was reported that Hazrat A.I ordered that there can be no marriage without the consent of Wali and one who enters into such a marriage that marriage is void. It is reported by Imam Shaabi that out of the entire lot of companions of the Holy Prophet, Hazrat A.I was the severest against those who entered wedlock without the consent of the Wali and he invariably flogged such people (Sunan Dar Qutani, Vo1.3, page 229, published by Darul Muhasan, Cairo).
Imam Shafii records at page 11 of his book, al Umm, an incident in which a report was made to Hazrat Umar Bin Abdul Aziz by a Wali of a woman who had entered into marriage without his consent. Hazrat Umar rejected this marriage although it had been consummated. (Al-Umm, Vo1.5, page 11, published by Albaz, Mecca).
Hazrat Abdullah bin Masood, a renowned companion of the Holy Prophet has reported (at page 566 of Encyclopaedia or Fiqha Hazrat Abdullah bin Masood, published by Adara-e-Muarif Islami, Mansoora, Lahore, 1994) that a woman has no right to conduct a marriage of another woman and if it is done by her that is not a valid marriage.
It is recorded by Imam Dar Qutani on the authority of Abu Haraira that a woman who marries herself (without the consent of her Wali) is a fornicator. Yet on another occasion it has been recorded on the same authority that she will be regarded as immoral woman.
Yet another Hadith has been reported by Imam Dar Qutani in his book which lays down that there can be no marriage without two witnesses and the dower and the only exemption to this is the person of the Holy Prophet.
Imam Shaukani, the late Chief Justice of Yemen, records in his Book, Nailul Otar that the proposition that there can be no marriage without Wali is supported by Hazrat A.I, Hazrat Umar, Ibne Abbas, Ibne Umar, Ibne Masood, Abu Haraira, Hazrat Ayesha, Hassan Basri, Ibne Massayab, Ibne Shabrma, Ibne A.I Laila, Utra, Imam Ahmad, Imam Ishaque, Imam Shafi and other so many scholars of Islam.
Ibne Manzar, however, records that none of the companions of the Holy Prophet had ever disagreed with this proposition (Nailul-Otar, Vo1.5, page 102, published in Egypt). Likewise there are many other references which can support this finding and they are being avoided in view of the matter being unnecessarily lengthy.
33. We now take up the case of the four Imams of Sunni Fiqha. We have already referred to the views of Imam Shafii whereby no marriage can take place without the consent of Wali.
As for Malki School of Thought, a woman who marries without the consent of her Wali should be separated and marriage shall be dissolved though consummated or not. (Al Madonatul Kubra, Vo1.2, page 166, published by Alsadar, Beirut). Allama Saleh Abdus Sami Al Azhari of Malki School of Thought, writes in his Book, Jawaharul Kalil (Vol. l, page 277, published from Beirut) that there are four conditions of a valid marriage and out of them consent of the Wali is the most essential one.
As for Hanbali School of Thought, references have already been made. Ibne Qudama in his Book, Al-Mughni has reported a Hadith on the authority of Hazrat Ayesha that there can be no marriage without the consent of her Wali.
As for Hanfi School of Thought, we find the following mention in Al---Johar-un-Neera (a commentary on celebrated book Qadoori) where the views of Imam Yousaf and Imam Muhammad have been described: There can be no valid marriage, says Imam Yousaf, without the consent of Wali. But according to Imam Muhammad, the Nikah does take place without the consent of Wali but it remains suspended until Wali ratifies it and if Wali refuses to acknowledge this marriage, no power is vested with the State even to validate this marriage. There is, however, one course to validate this Nikah and that is dismissal of the earlier Wali and appointment of new Wali. According to Imam Yousaf when the Wali refuses to accord approval, State will insist upon Wali to do so and even then he refuses to consent, sovereign will step in and allow marriage.
Imam Abu Yousaf, Imam Muhammad and Imam Shafii are of the view that in case of marriage of a major girl who has attained puberty and has also attained the age of discretion, consent of her Wali is essential. But there is a difference of opinion among the three Imams that what would be the consequence if she weds without Wali's consent. According to Imam Shafli the girl is not competent to Wed without consent of her Wali, as such there is no Nikah and subsequent ratification will not validate it. Imam Muhammad maintains that although Nikah will take place but it will remain suspended until ratified by Wali and if husband has sex with her that will be altogether illicit and if either of the two dies, no one would inherit their property. (Tuhtal Fuqaha by Alaud Din Samarqandi, Vo1.2, page 224, Qatar).
Yet in another book namely, Badaya-e-Sanai it has been recorded that according to Imam Muhammad it is not proper for a woman to wed without the consent of Wali or that of the Sovereign.
According to the latest views of Imam Abu Yousaf if there exists a Wali of a woman, it is not proper for her to wed without his consent.
According to Al-Hadaya and its commentary Fatehul Qadeer (both treatises are fundamental books of Hanfi thought) Imam Abu Yousaf's view was that there can be no Nikah without Wali's consent. Likewise, Imam Muhammad held that Nikah is dependant on the consent of Wali. Similar are the views of Imam Malik and Imam Shafli.
Explaining the views of Hanfia on the point Allama Anwar Shah Kashmiri, a great jurist of modern times records in his book Faizul Bari that the fact of the matter is that the hadith: (There can be no marriage without Wali). is a Hadith of the category of "Hassan" but a few of the exaggerators have described it as,"Sahih".
According to the research made by the scholars, the correct view is that in this matter which relates to Muslim society, regard should be had to both the sides. There are Ahadith on both sides, as such, in order to maintain equilibrium in the society, it is essential that both sides should be kept in juxtaposition. When women were addressed it was made clear to them that their Walis had rights on them. So much so it was doubted that if woman had any right in the matter as is clear from the Hadith: that a woman who marries without consent of Wali, that marriage is Batil, Batil, Batil. The repetition of marriage being void, prima facie, appears to be an exaggeration and when the matter related to guardians it was stated that women have their rights qua Walis. This shows that they are independent and Walis have no right to interfere. If both the versions are read together it would show that there is no contradiction in them and what comes out of the whole discussion is that consent of a Wali and that of the woman who is being married, both are essential so that neither Wali should do excess on the woman nor she should proceed in undesirable manner (Faizul Bari, commentary on Sahih-e-Bokhari by Anwar Shah Kashmiri, Vo1.4, pages 282 to 287).
Hazrat Shah Waliullah has also supported this view rather vigorously in his Book, Hujjatullah Baligha (pages 515 to 520, published by Farid Bookshell, Urdu Bazar, Lahore).
It would not be out of place to make a reference to Encyclopaedia of Religions and Ethics, edited by James Hastings, 38-George Street, New York. Wherein it has been reported at page 464 "that consent of the parents is absolutely, necessary, but not that of the parties themselves who were often betrothed by their parents at a very early age."
34. As for the consent of the intending husband and wife, there is consensus amongst all the jurists that notwithstanding the approval of the Wali, consent of the wife and husband is equally essential if the wife has attained puberty, as such there is no need to further discuss this point.
35. As regards presence of two witnesses, it is pointed out in Kitabul Fiqha (Vol .IV by Abdur Rehman Jazeeri published by Auqaf Department, Government of the Punjab at page 39): "The condition of presence of two witnesses alongwith Wali is based on various Ahadith reported by Ibne Sabban that there can be no marriage without a guardian (Wali) and two just and fair witnesses and if there is marriage without these conditions, that would be void."
Again (at page 49 of the same book) it has been noted that there is consensus amongst the three Imams that the witnesses must be present at the time of offer and acceptance (Ejabo Qabool) otherwise, Nikah shall be Batil, i.e. Void.
According to Malki School, it is not necessary that there should be witness at the time of Nikah.
However, there should be witness of a valid retirement between the husband and wife. It would, therefore, be commendable if the two witnesses are present at the time of marriage.
There is again unanimity amongst the three Imams that the witnesses should be male whereas according to Hanfis, there can be one male and two female witnesses.
According to Imam Nawawi, the author of Minhaj et Talibin (A manual of Muhammadan Law, translated by E.C. Haward, late District Judge, Singapore) a marriage should be effected before two witnesses, free, male and of' irreproachable character.
It is held in AIR 1940 Pesh. 2, 3 that: "According to Muhammadan Law, it is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses. "
It would be quite apt to refer here to a book titled, Our Dialogue-II (edited by Adil Salahi, a known scholar and religious editor of Arab News, Jeddah, Saudi Arabia). In answer to a question about constituents of a proper marriage, he wrote: "You need to have a marriage contract made properly in the presence of witnesses and the bride's guardian and with the payment of her dower. You then need to add more publicity perhaps through ' Valeema' . "
He further records (at page 126): "You realize that a marriage is a contract between two parties, a man and a woman, made in presence of witnesses as well the woman's guardian. It also involves the payment of dower, the amount of which is agreed between the two parties and becomes payable by the husband at the time when the contract is made."
At page 130 of the same Book, he further records: 'The marriage contract consists of a commitment by the woman's parents or guardian and acceptance by the man. This must be done in the presence of two witnesses. A dower is payable to the woman by her husband. The amount is agreed between two of them and the money becomes the property of the wife. She has sole discretion over its use, since it is hers. It is strongly recommended that after the marriage takes place, the husband invites relatives and neighbours to meal. This serves as part of the publicity which is essential in marriage. "
36. Next comes the dower. It is one of the essentials of marriage and no marriage is valid without it.
According to Qur'anic commandment: (give to the women their dower with pleasure).
This is a Qur' anic commandment and it shows that no marriage can take place without fixing the proper dower and if it is not fixed at the time of marriage, the husband is required to pay it according to his status as held by some of the jurists.
Besides this the condition of proclamation and publicity of Nikah has joined through authentic Ahadith.
37. It appears essential at this stage to express that the Islamic Law is not oblivious of the fact that if a Wali or Guardian is negligent in performing his duty in time qua his daughter or ward, he too, ought to be called upon to explain as to why he had failed to perform his duty. Commenting upon verse 2:232 Ibn-e-Kathir records in his commentary while referring to the incident of Maaqal bin Yasar: Those who believe in Sharia and have fear of Allah, ought not restrain their woman folk of marriageable age from marriage in these circumstances. They should follow the orders of Sharia and should subject their (false!) honour to the dictates of Allah. This is closer to piety and fear of God (Ibn-e-Kathir, Vo1.I, page 324).
38. It would be certainly very difficult, rather cumbersome and expensive for an unmarried woman to come to a Court of law against a delinquent Wali. It is, therefore, advisable to lay down a simple procedure. Such a woman may avail of her remedy under the scheme for awareness and enforcement of rights and obligations envisaged by the Quetta Declaration of 14th August, 1991 made by the Chief Justice of Pakistan and the Chief Justices of all the other High Courts. Under this scheme she can write only a letter to the concerned District Judge who shall treat it as a petition and assigning it priority shall summon the Wali and shall resolve the matter within the shortest possible time. For this purpose the District Judges have already been designated as "Directors of Board of Awareness and Enforcement of Human Rights and Obligations" in each district and have been authorised by the High Court vide Letter No.15397. Gaz/1, dated 30th November, 1991 to entertain the complaints/petitions under the scheme and provide the requisite relief. Even the Additional District and Sessions Judges can take cognizance of such matters and remedy the wrongs done to the parties. This is primarily a jurisdiction in the nature of a parental or quasi- parental.
39. It appears quite relevant to mention here that Islam being a Deen-e---Fitrat understands the nature of the problems and provides cure for them in a most befitting manner. What a woman in the West could attain after being disgraced and humiliated for centuries Islam granted to women more than that at the very outset. As a fundamental principle Islam holds that woman is a human being and she has a soul similar to that of man: "O people! Be careful of (your duty to) your Lord, who created you from a single being and created its mate of the same (kind) and spread from these too many men and women. " (4:1)
It would, thus be clear that a man and a woman are quite equal to each other in their origin, their abode as well as in their place of return and are as such entitled to similar and equal rights. Islam gave her the right to life, to honour, and to property like men. Men and women are also equal in their rights to realize their material needs to tile world including similar rights to hold property and dispose it of as they should wish. They are free to mortgage their property, to give it in lease or bequeath it, sell or buy it or exploit it for his or her own benefit. Qur'an says: "Unto the men belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave" (4:7) and again "unto men a fortune from that which they have earned, and unto women a fortune from that which they have earned" (4:32).
40. Now let us look at the position of the women in West. In order to ascertain the situation it would be instructive to refer here to Lord Denning who, in his book "The Due Process of Law" wrote: "Every husband was by law given power and dominion over his wife. It was said in the old books that he might keep her by force within the bounds of duty and might beat her, but not in a violent or cruel manner. The gloss put upon this by the common man was that he might beat her but only with a stick not thicker than his thumb. By the time that Blackstone wrote towards the end of the 18th century this power began to be doubted among the higher ranks of society: but he adds that 'the lower rank of the people, who were always fond of the old common law, still claim and exert their ancient privilege; and the Courts of law will still permit a husband to restrain a wife of her liberty in case of any gross misbehaviour'. As late as 1840 when a wife threatened to leave her husband, he was held to be entitled to keep her a prisoner in the house and to use force for the purpose. It was not until 1891 that the Courts gave her the right to come and go as she pleased ......
I now turn from the wife's personal position to her ownership of property. We know that in the marriage service it is the man who assures the woman that 'with all my worldly goods I the endow'; but the law did the exact opposite. Upon marriage all the woman's goods ' and chattels, and all her money, automatically belonged to the man save for her own personal clothing and paraphernalia.
If her parents or friends gave her wedding presents, such as a writing desk or a pair of candlesticks, they belonged to the husband. If during the marriages he went out to work, all that she earned belonged automatically to her husband. Just think what great power this gave to him, and how dependent it made her. She had to go to him, on bended knee, whenever she wanted to buy anything even with her own money or her own earnings. If she left him, even for good cause, she had no right to any maintenance even out of her own funds. The only remedy which the common law gave her was that she could pledge his credit for necessaries, but even then she had to find some tradesman who would supply her -- and none might be willing to do so. Most tradesmen, however, keen they were to do business, also wished to be sure of being paid. They did not wish to be involved in a lawsuit as to whether the wife was entitled to pledge her husband's credit or not. If they were unwilling to accept the husband's credit, it was useless for the wife to pledge her own.
She had no power to contract on her own behalf, because she was one with her husband and could agree to nothing apart from him. Moreover, she had no property or money with which to honour any contract which she might make. She was in a parlous plight. "
(Pages 199-200: Due Process of Law, 1996 Reprint).
41. As pointed out above Islamic law avoids excesses and extremities and applies the rule of golden mean. If the consent of Wali is required for marriage, the consent of the bride or bridegroom is equally essential and no marriage is valid without these two consents, whereas in the West the only emphasis is on the consent of the couple which is being married and not that of their parents.
According to Hindu system a woman is seldom asked before marriage and this fact led Mr. Atal Behari Wajpai, the leader of P.J.P. And, Prime Minister of India for a few days, to condemn the Hindu practice and to appreciate the Muslim law in this respect. He is reported to have said during his speech in the Parliament that "He was immensely pleased with the Muslim Personal Law wherein the consent of the girl to be wed, is essential, whereas there is no such thing among the Hindus who marry them like cows and buffaloes" (Daily Nawa-i-Waqt, dated 13-6-1996). The fact that the consent of a Wali is essentially required for a valid marriage ensures the existence of a solid society. Lord Denning in the same Book at page 201 remarks: "Let me conclude with this one thought. This freedom which women have achieved carries with it equal responsibilities. If they live up to their responsibilities, their equality is not only a matter of absolute justice, but is also capable of great benefits to the human race: and of all their responsibilities, the chief is to maintain a sound and healthy family life in the land. To this chief responsibility all other interests must be subordinated. It is here that I depart from Plato. He would carry the equality of women so far that there were no marriages of one man with one woman, but that men and women should associate with one another as they pleased and leave the children to be brought up by the State. If equality were to lead to such a result, it would be the end of our civilization which is built upon a sound family life."
42. The aforesaid survey of the marital laws would show that the people or the nations who do not follow revealed guidance (Wahy) remain rambling as their fancy lead them and come to a point after hit and trial of centuries.
43. What we conclude from the aforesaid discussion is that the marriage contracted by both the petitioners in these cases is wholly void being without the consent of their Walis and as such the cases have been rightly registered. The police would be at liberty to investigate the cases and to take them to their logical conclusions. There is no merit in the writ petitions which are hereby dismissed.