PLD 2026 Federal Constitutional Court 138 — Shahbaz Masih v. Additional Sessions Judge, Lahore and others
By Muhammad Shafique Baloch, Advocate High Court
On 3rd February 2026, the newly established Federal Constitutional Court (FCC) — comprising Syed Hasan Azhar Rizvi and Muhammad Karim Khan Agha, JJ. — delivered an important ruling touching on three sensitive and frequently litigated areas of Pakistani law: interfaith marriage, conversion to Islam, and the legal effect of child marriage under the Child Marriage Restraint Act, 1929. As a practitioner regularly handling constitutional writs and family matters before the Lahore High Court, I found this judgment significant enough to break down for both fellow practitioners and members of the public who may find themselves in similar situations.
Background of the Case
The petitioner, Shahbaz Masih, a Christian, lodged an FIR alleging that his daughter had been kidnapped after leaving home. Investigation revealed that she had instead married a Muslim man — respondent No. 6 — of her own accord, and had recorded a statement under Section 164 Cr.P.C. affirming that she was not abducted and had married with free will and consent.
The father contended that his daughter was a minor Christian girl (approximately 12 years, 9 months old at the time), relying on a birth registration certificate and a NADRA Child Registration Certificate, and argued that her custody with her husband amounted to illegal detention. His petitions for her recovery were dismissed successively by the Additional Sessions Judge and the Lahore High Court, prompting him to seek leave to appeal before the Federal Constitutional Court.
Key Findings of the Court
1. A Muslim man may lawfully marry a Christian woman. The Court reaffirmed settled Islamic law — Christians being Ahl al-Kitab — citing the Supreme Court’s earlier rulings in Mrs. Marina Jatoi v. Nuruddin K Jatoi (PLD 1967 SC 580) and Mst. Zainab Bibi v. Mst. Bilqis Bibi (PLD 1981 SC 56). However, such a marriage cannot be registered under the Muslim Family Laws Ordinance, 1961, since that Ordinance applies only to Muslim citizens.
2. Conversion to Islam requires only a sincere declaration. The Court held that once a person openly professes belief in Islam and recites the Kalma, courts should not probe further into the genuineness of that conversion. On this basis, the daughter’s affidavit and her subsequently obtained conversion certificate were held sufficient to establish she was no longer Christian by faith.
3. Child marriage is a criminal offence — but it does not automatically void the marriage. This is perhaps the most consequential holding for practitioners. The Court traced the history of the Child Marriage Restraint Act, 1929 (one of the earliest laws on the subject in the subcontinent, introduced by Quaid-e-Azam Muhammad Ali Jinnah), and reaffirmed the settled position — drawn from Mst. Bakhshi v. Bashir Ahmad (PLD 1970 SC 323), Mauj Ali v. Syed Safdar Hussain Shah (1970 SCMR 437), and Mushtaq Ahmad v. Mirza Muhammad Amin (PLD 1962 W.P. Kar. 442) — that the Act penalizes the act of contracting a child marriage but does not render the marriage itself void or voidable in the absence of an express statutory provision to that effect.
On the facts, the Court also found the father’s evidence of his daughter’s age unreliable — his own FIR had stated her age as 13/14, inconsistent with his later claim of 12 years 9 months, and both the birth certificate and the Child Registration Certificate had been issued years after the alleged date of birth without explanation, weakening their evidentiary value.
4. Res judicata. The father’s first writ petition on identical facts had already been dismissed and not challenged further, rendering that finding final between the parties.
5. A notable structural observation on precedent. The Court clarified that following the establishment of the FCC under the 27th Constitutional Amendment, pre-FCC Supreme Court judgments are no longer strictly binding on the FCC — they carry strong persuasive value, and the FCC will ordinarily follow them unless they are manifestly inconsistent with the Constitution, dilute fundamental rights, or reflect judicial overreach.
Outcome
The Court refused leave to appeal and dismissed the petition, holding that the daughter’s custody with her husband could not be treated as illegal. It clarified, however, that this finding would not prejudice the separate criminal proceedings arising from the original FIR, should the prosecution choose to proceed.
Why This Judgment Matters
This case illustrates a recurring and difficult pattern seen in courts across Punjab: disputed age, disputed conversion, and disputed consent, all converging in a single family dispute. It reaffirms that:
- Documentary proof of age must be timely and consistent to carry weight;
- A statement of free will recorded under Section 164 Cr.P.C. carries significant evidentiary value in custody matters;
- The Child Marriage Restraint Act remains a penal statute, not one that voids marriages — a distinction with real consequences for recovery and custody litigation; and
- The precedential landscape in Pakistan is evolving with the creation of the Federal Constitutional Court.
Practitioners handling matters involving disputed minority, conversion, or interfaith marriage should read this judgment closely, as it consolidates and clarifies the applicable legal framework going forward.
About the Author
Muhammad Shafique Baloch, Advocate High Court, has been practicing law since November 2006, with over 20 years of experience across civil, criminal, family, banking, immigration, and corporate law. He holds a degree from the University of the Punjab and an LL.M. from the University of Lahore, and represents clients both within Pakistan and internationally.
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