Court Marriage in Pakistan

By: Urooj Bashir

Few days back, while surfing on the internet, I came across some websites and Facebook pages on which lawyers across Pakistan offer their services for arranging the “court marriages” to the interested people. Some of them even offered to keep it “secret from general public”. They discussed the ages, documents, expenses and other related information in a detailed – and highly-provoking – way, which is a shame.

In a blind race to ape the developed and modernized societies, we have lost regard for our culture, ethics, values, and above all, have ignored the basics of our religion which is so liberalized and modern. It came for the guidance of the people at a time when the Arab society had become highly conservative and it declared that preference would be given to girl’s wishes at the time of her marriage. This is the religion that opens its folds for non-Muslim females to enter in wedlock with Muslim males while observing their own religion.

But, unfortunately, as a nation we have become lethargic and reluctant on doing research and learning about the basics of our religious values, rights and duties; rather we depend on the views of and researches done by the so-called Ulema who impose their concocted views on us with false statements on religion. Resultantly, owing to the sheer lack of knowledge and awareness, we have adopted the customs and cultures of other nations of the subcontinent as our religious values. It is absolutely wrong and depicts the decay of ethical values of our society.

Marriage is such a beautiful and purposeful institution in all societies that not even a single religion allows to keep it secret; rather around the world, either customarily or religiously or for the need of law of the society, it should be declared and announced to the public so as to avoid complications of legitimacy, inheritance and succession. Same is the case in Islam as it ordains that marriage should be announced and declared to the vicinity. Amidst all these facts, these people are openly offering to keep their marriage secret and it is bound to attract complications in future.

The word “Court Marriage” has not been defined in any Act, Ordinance, Rule(s), or Schedule(s) in Pakistani law. Such marriages are solemnized with the help of a lawyer and recognized and ratified by the court of law. The Nikah Namma (Marriage Certificate) in this regard is registered and issued by the Nikah Registrar of the locality, and not by the court.

The concept of such marriages came into the Subcontinent from the English law. Initially, this concept was based on social customs and religion of parties to the marriage contract. But, now it is codified not only in Pakistan but also in India and other countries of the world. India, the United Kingdom, the United States and many other counties have their separate “Court Marriages Acts” which define the procedure of solemnizing a marriage under the supervision of court.

The basics of human nature and ethical values of all societies are almost same; therefore, public acceptance of court marriage is far lesser than that of traditional and religious marriages. No society likes to keep marriages secret.

If we analyze the situation, we find that a court marriage is contracted when one or both parties to the marriage either could not get the consent of their parents or they fear they will not be allowed to marry each other. The situation may also arise due to different social or economic stature of the two families. Differences of religious sects, customs or even enmity and bad blood between the two families may also cause such issue and it leads the parties to solemnize their marriage against the will and wishes of their families. So, the boy and the girl decide to elope and reach the court to get married.

Even in such situations, the law authorizes the same procedure that is required for an arranged marriage. Intervention of court is not required and no court of law in the country is entitled to solemnize any marriage in a courtroom or issue a certificate of marriage.

People are misguided and mislead by the lawyers – supposed to be the educational elite of the society – who are legally, ethically, morally and professionally bound to lead the society and take part in eliminating misconceptions on laws for the better administration and establishing rule of law in the country. By offering such services, such lawyers not only instigate the young and innocent people but also mislead them and it has resulted in many social ills. They are, in effect, adding fuel to the already burning fire of other crimes in society which we witness on TV screen and in daily newspapers.

Hence, let it be very clear, there is no such thing named “Court Marriage” in Pakistan. And, if a person offers you to facilitate such a marriage, he is a fraud.

Following laws deal with solemnization and registration of marriages in Pakistan:

1. Muslim Family Laws Ordinance,1964
2. Rules Under Muslim Family Laws Ordinance,1965
3. Child Marriage Restraint Act, 1929
4. Child Marriage Restraint (Punjab Amendment) Ordinance, 1971
5. The Azad Jammu and Kashmir Family Courts Act, 1993
6. Births, Deaths and Marriages Registration Act, 1886
7. Christian Marriage Act, 1872
8. Conciliation Courts (West Pakistan Amendment) Act, 1969
9. Foreign Marriage Act, 1903
10. Hindu Marriage Disabilities Removal Act, 1946
11. Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946
12. Hindu Widows’ Remarriage Act, 1856
13. The Hindu Marriage Act, 2017

The Hindu Marriage Act covers the conditions for Hindu marriages in Section 4 which reads:

“A Hindu marriage shall be solemnized, if the following conditions are fulfilled, namely:-(a) at the time of marriage, the parties are of sound mind and capable of giving a valid consent;
(b) both the parties are not below the age of eighteen years;
(c) the parties to the marriage are not within the degrees of prohibited relationship; and
(d) neither party has a spouse living at the time of marriage:
Provided that condition in clause (d) shall not apply where a living female spouse cannot conceive a child and medically declared to be so.”

The Act also states in Section 5: “A Hindu marriage may be solemnized in accordance with the customary riles, rituals and ceremonies of either party thereto.” A marriage certificate called “shadiparat,” similar to the Nikahnama of Muslims, will be issued for all Hindu marriages. Shadiparat also proves instrumental in reducing the risk of forced second marriages, as a Hindu woman can give documentary evidence of her first marriage, without which she would be unable to protect herself from an illegal and forced second marriage. Although either spouse may petition for divorce due to desertion, if a Hindu wife is the recipient of a petition for divorce from which she will suffer grave financial hardship, she may oppose the grant of the decree before a court. Under Section 17 of the Act, “A Hindu widow shall have the right to re-marry of her own will and consent after the death of her husband provided a period of six months has lapsed after the husband’s death.”

The Act also gives separated Hindu widows the right to remarry. If a Hindu woman is deprived of her marital rights, she may contest the marriage in a court of law. Under Section 4(d), two concurrent marriages are unlawful, and any violation of the Hindu Marriage Act, 2017, would result in prosecution for the offence of bigamy as per sections 494 and 495 of the Pakistan Penal Code.

Therefore, keeping in view the above discussion, as vigilant citizens of this country we all should know the basic requirements for a valid marriage, which are as follows:

• Both parties should be 18 years old or above
• They should have a valid CNIC at the time of marriage
• Nikah should be conducted by a registered Nikah Khawan which is authorized by the Government to register the Nikah and keep its record with him and submit a copy to the nearby Union Council.
• Two adult witnesses at the time of Nikah
• If bride is below the age of 18, then she should be presented by Wali
• Consent of both parties should be free
• Muslim girl can never marry with any non-Muslim in any case
• Muslim man can marry with non-Muslim girls subject to technicalities
• Dower should be discussed among parties
• A girl who is already married cannot solemnize another marriage without getting divorce from her husband
• An already married man may solemnize another marriage in the presence of his first wife or wives but subject to prior permission by her or them, as the case may be, and in violation of this condition he shall be fined and imprisoned.

In many cases, infuriated relatives of the bride lodge case of her abduction against the groom and the couple faces lengthy litigation. Sometimes, the wife is forced to record statement against the husband, putting the “innocent man” behind the bar. Recently, Chief Justice of the Islamabad High Court (IHC) quashed an FIR registered against Saima Shaheen and her husband, Muhammad Ikram. They pleaded before the court that they are lawfully-married couple, rejecting the FIR registered with Shahzad Town police in which the complainants accused that they were involved in an illicit relationship. The case was registered against the couple by Saima’s uncle, Tahir Mehmood. She said that after the marriage, her brothers with the help of police were harassing her and her husband.

In another case, Ayesha Aziz and her husband Shaharyar Ali also approached the Lahore High Court (LHC) for quashing the FIR registered against them. Relatives of Ayesha got registered the FIR against her husband under section 365-B in New Town police station of Rawalpindi. The court’s Rawalpindi bench had directed the police to quash the FIR.

In order to avoid these situations, when bride and groom are not facilitated and supported by their respective families, people befool them in the name of court marriage and just to avoid the criminal proceedings against the groom they present the bride before Allaqa Magistrate and submit an affidavit that she is legally married to the groom without any force or coercion, with her free will.

Hence, beware of this fraud named “Court Marriage” in Pakistan as no such concept exists here. Whether your family is willing or not for a person to become your better half, procedure of marriage is one and the same but precautions should be taken, as stated in the last paragraph, in order to avoid complications in future.