Uncovering Legal Blindspots: The Falak Noor Case

I begin this article with a clear assertion that child marriages are a blatant violation of children’s fundamental rights, principle of policy and statutes. While the Supreme Court has yet to adopt a progressive stance on this issue, there was hope that the Chief Court of Gilgit Baltistan could have taken a step forward in the recent case.

The Falak Noor case, brought before the GB Chief Court, involved a habeas corpus petition seeking the release of Falak Noor from alleged illegal custody and forced marriage. The petitioner asserted that Falak Noor (the petitioner’s daughter), a minor aged 12-13, was abducted and forced into marriage with the accused Fareed Alam. Without delving into exhaustive details already familiar to the public, my aim is to shed light on pertinent legal questions for a clearer understanding. Before commenting on the honourable Chief Court’s order, let’s review the key provisions of the “Child Marriage Restraint Act of 1929”, which unequivocally defines a child and prohibits marriages involving minors. The relevant provisions are reproduced below.

Section 2(a): “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age.

Section 2(b): “child marriage” means a marriage to which either of the contracting parties is a child.

The above mentioned sections leave no ambiguity that any female under 16 years of age and male under 18 years of age falls under the definition of child under section 2(a), while section 2(b) of the act states that if any of the contracting parties is a child, which means below the marriageable age, then it is a child marriage. Section 4, 5, and 6 of the act outlines the penalties for parties involved in child marriage according to which, the person marrying a child, the person solmanizing Nikkah and even the guardian/parent facilitating the Child marriage is a punishable offence. What’s more interesting about this law is that under section 6(2) of the act, there is a presumption attached that if a minor is married, then it will be presumed that guardians/parents negligently failed to prevent the marriage. This presumption will operate against the parent/guardian and aligns with the act’s purpose of preventing child marriages, and I quote,  “The purpose of this act is to prevent solmanization of child marriage.”

Now, in the present case, we have two contrary versions of a single incident. The first version is of the Petitioners who claim that Falak Noor is 12/13 years old. The second is the Respondents’ version, supported by the victim’s statement under section 164 Cr.P.C asserting she is 16 years old. The determination of her age is a crucial aspect of this case because her age will decide whether the above mentioned act, i.e. “Child Marriage Restraint Act 1929” is applicable or not. Before proceeding further, it is important to address the misconceptions surrounding the legality of minor’s statement under section 164 Cr.PC because not only the general public but also a faction of lawyers have a confused understanding of the law, stating that since the alleged abducted girl is a minor, therefore, her statement under section 164 has no legality and no evidentiary value. If for the sake of argument and understanding of the case, we consider the statement  of petitioners correct that she is 12/13 years old and is a minor, even then there’s no legal bar and I have no hesitation to say that such an argument has no substance. The age of a witness has nothing to do with his/her competence to testify. Relevant law dealing with the competence of a witness is Article 3 of the Qanun-e-Shahadat Order. It will be advantageous to have a glimpse of relevant law, which has been reproduced below.

Article 3. Who may testify: “A person shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind.

Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Qur’an and Sunnah for a witness, and. where such witness is not forthcoming the Court may take the evidence of a witness who may be available.

Explanation: A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

Now this should leave no doubt that any person of any age shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions because of tender age, extreme old age or disease of some kind. A child of a tender age is competent to testify if he/she has the intellectual capacity to understand questions and give rational answers. The law doesn’t stop here; it takes the discussion a step further that even a lunatic is not barred by the law from testifying if the court deems him/her competent. Thus, there is no legal bar on minors recording their statements. Article 17 read with Article 3 of Qanun-e-Shahadat vests in the court the discretion to determine whether a witness of tender age is competent to testify by reason of understanding or lack of understanding.

Now let’s talk about section 164 Cr.P.C. which deals with the recording of confessions and statements by a magistrate. According to the said section, any magistrate, even if he/she has no territorial jurisdiction can record statements/confessions u.s. 164 Cr.P.C. The intent of the legislature behind such law was to secure evidence for future use. The relevant section is reproduced below.

Section 164. Power to record statements and confessions:

“(1) Any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.

[(1-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement).

(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case:”

Up to this point, the readers should understand that competence to testify and record statements is not contingent on age but on the ability to comprehend and respond rationally. The next question that needs to be addressed is a diverse view from lawyers and public where they said statements recorded by magistrate has no evidentiary value/ legality, while another faction said the magistrate should be held accountable for recording a minor’s statement under section 164 Cr.P.C, which, as discussed above, a magistrate can do under law but let’s look at few more provisions of law i.e. Article 4 read with article 129(e) of Qanun e shahadat 1984.

Article 4. Judges and Magistrates: “No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as Judge or Magistrate, or as to anything which come to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations: A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.”

Article 129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations: The Court may presume, (e) that judicial and official acts have been regularly performed.

The statement recorded under section 164 Cr.P.C, which is made to a magistrate, enjoys a degree of presumption of truth attached to it in the eye of law, and therefore, no magistrate could be summoned for an action which he has done during the course of his official conduct. Let me remind the readers that I do not consider the statement of victim recorded under section 164 as valid for my reasons recorded in the later part of this article.The only point of law I’m touching is that the law provides no bar to getting a minor’s statement recorded under section 164, and then judicial proceedings have presumption of truth attached to them. This doesn’t mean that the statement of minor which is recorded under section 164 has presumption of truth; it only means that the magistrate followed the procedural requirements before recording the statement regardless of the fact if the statement of the person is true or false, therefore, the statement of the victim is not substantive evidence, i.e. it doesn’t have the capacity to prove or disprove a fact in issue or a relevant fact. It can still be contradicted but let’s not go there as the matter is still pending adjudication.

Now the most important aspect of the case was the presence of NADRA issued B-form where Falak Noor was 12 years old on record. When the case was pending adjudication before the Chief Court, a faction of human rights activists was demanding medical examination to determine the age of the victim. What struck me even more was the Honourable Chief Court’s order that both parties consented and proposed the medical examination of the victim to determine her age. I don’t blame the public since they’re not lawyers. However, what truly shocked me was that the petitioners allowed the case to slip away from their hands, and here’s why I say this. The general principle of law is that oral evidence has the capacity to prove all facts except the contents of the document. And then law puts another condition that this oral account must mandatorily be direct, which means the person giving the oral account must have seen it himself/herself, which means the person must have perceived the fact himself/herself because otherwise it would fall under the ambit of hearsay evidence. Relevant articles are produced below for the ease of readers.

Article 71.Proof of facts by oral evidence: All facts, except the contents of documents, may be proved by oral evidence.

Article 72.Oral evidence must be direct: Oral evidence must, in all cases whatever be direct.”

Mere asserting that documentary evidence supersedes oral evidence is not sufficient in the current case because we are not talking about any contract or any document made between the parties, but it is a document that has presumption of truth attached to it. Under the law, there are certain documents which hold the presumption of truth attached to them and the birth record maintained by NADRA is such a document. The relevant provision of Qanoon e Shahadat is produced below.

Article 92.Presumption as to genuineness of documents kept under any law: The Court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

Article 92 read with Article 71 of QSO was sufficient to determine the age of victim solely on the basis of NADRA record and also discard her statement under section 164 CrPC where she called herself as 16 years old. Since the authenticity or credibility of a registered document can’t be called in question if it is not challenged within the time prescribed by law which is a few months after the birth of the person, which means at the current stage, there was no way the NADRA record should have been ignored.

Another erroneous aspect of the case was the court’s reliance on Islamic personal law with no statutory basis. The court sought assistance on the question of puberty citing Hanafi jurisprudence which suggests 9 years as the minimum age of puberty. Before diving into the legality of this decision and court’s reference to Islamic Personal law, let’s address the outcry for implementing Jafari fiqh in the current case. I don’t fathom the purpose this statement serves because, in fact under Hanafi fiqh, the maximum age of puberty is 12 years while under Jafari fiqh, the age of puberty is 9 years. By advocating for Jafari fiqh, the public which seems to advocate for the minor’s right are in fact unintentionally supporting an even younger age of majority. Now to discuss the legality of Chief Court’s order where Islamic jurisprudence of a specific fiqh was touched on without referring to any law. I don’t blame the courts alone; It was the duty of learned amicus and counsels to assist the court on questions of law.  The court is not the legislature to come to a conclusion on mere discussions. Every conclusion reached has to be backed by statute and law. The relevant law in this regard is “West Pakistan Muslim Personal law Shariat Application Act 1962”. Section 2 of the act states the application of the Muslim personal law. I reproduce the relevant section below.

Section 2.  Application of the Muslim Personal Law.— Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.

The applicability of Muslim personal law is subject to statutory provision which means Muslim personal law is subject to the enactments by legislature, otherwise there’s a possibility and fear that a judge might resort to his own subjective understanding of the principles of Muslim personal law to decide a question of fiqh while it is also worth noting that there’s still no consensus even among scholars on many questions of fiqh. Therefore, the court has erred in reading and applying Islamic personal law in isolation because the rule of law demands a harmonious application of statutes and law ensuring consistency in legal proceedings.