Freedom of Family

7/27/2019 Freedom of Family

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Malik Muhammad Sabir Shahzad , 03007603271,

Contents

Contents ..............................................................................................................................1

INTRODUCTION ..............................................................................................................2Constitutional instruments of different countries enshrine the noblest aspirations of

their respective people. All Constitutions, theref ore, embody the highest principles of

civilized norms and behaviour and political aspirations. What is important is not the

letter of the Constitutional document but its realization in practical life. If the highestprinciples are not translated into reality the provisions of the Constitution remain pious

hopes and mere lip service to those high ideals and cannot serve any useful purpose....2

In a democratic society it is not the written word of the Constitution of the law whichensures fair treatment to any particular class or section of the society but the steps

which the state has taken to ensure such protection and fair treatment...........................3

It is the Constitution of Pakistan, with special re ference to the Family Laws and

judicial protection, which is the subject matter of my speech today. In the Muslimworld and among Muslim communities, Islam operates as a way of life, as much as a

religion. It regulates the details of every day life through written and un-written codes

which have a direct impact on peoples social, economic, political and personalresponsibilitie s and rights. These laws are fixed and are shaped by socio-economic and

political developments and involve a constantly changing selection of customs,

traditions, religious codes and external sources of law. ..................................................3ARTICLE: 35 PROTECTION OF FAMILY, ETC.............................................................3

PREAMBLE OF THE CONSTITUTION OF PAKISTAN ...............................................3

P L D 1997 LAHORE 666...................................................................................................5


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INTRODUCTION

Constitutional instruments of different countries enshrine the noblest

aspirations of their respective people. All Constitutions, theref ore,

embody the highest principles of civilized norms and behaviour and

political aspirations. What is important is not the letter of the

Constitutional document but its realization in practical life. If the

highest principles are not translated into reality the provisions of the

Constitution remain pious hopes and mere lip service to those high

ideals and cannot serve any useful purpose.


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Wherein the integrity of the territories of the Federation, its independence

and all its rights, including its sovereign rights on land, sea and air, shall be

safeguarded;

So that the people of Pakistan may prosper and attain their rightful and

honoured place amongst the nations of the World and make their full

contribution towards international peace and progress and happiness of

humanity :

Now, therefore, we, the people of Pakistan,

Cognisant of our responsibility before Almighty Allah and men;

Cognisant of the sacrifices made by the people in the cause of Pakistan;

Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam

Mohammad Ali Jinnah, that Pakistan would be a democratic State based

on Islamic principles of social justice; Dedicated to the preservation of

democracy achieved by the unremitting struggle of the people against

oppression and tyranny; Inspired by the resolve to protect our national and

political unity and solidarity by creating an egalitarian society through a

new order; Do hereby, through our representatives in the National

Assembly, adopt, enact and give to ourselves, this Constitution.

P L D 1997 LAHORE 666

MST. SAJIDA BIBI AND OTHER V/S INCHARGE CHOUKI NO.2 POLICE

STATION SADDAR, SAHIWAL

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


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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 35of 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


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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 Article9(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 rightof 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. Lifewithout 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


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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 husbands 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

Freedom of Family

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