' MUHAMMAD AFZAL ZULLAH J.-This Intra-Court Appeal by Mst. Shahida Perveen is directed against order, dated the 3rd June.1979, passed by a learned Single Judge of this Court whereby he had dismissed her Writ Petition challenging- an order of the Sessions Judge, Sialkot, to the effect that her custody be given to her father.
2. Briefly stated, the facts of this case are that the father of the appellants namely, Muhammad Inayat, who is second respondent in the present appeal, lodged a 'report at Police Station, Daska, District Sialkot, that his daughter, Mst. Shahida Perveen appellant, aged 13 years, had been abducted and then married to one Muhammad Rafique. On this, a case under section 363/34 of the Pakistan Penal Code was registered. During the course of investigation, she was recovered by the Police and examined by a Magistrate under section 164 of the Code of Criminal Procedure. In her statement before the learned Magistrate the position taken by her was that she had married Muhammad Rafique of her own free will and wanted to go with her maternal uncle. The learned Magistrate, however, directed that she be lodged in Dar-ul-Amman. While at Dar-ul-Amman, she was examined by a Radiologist for the purpose of determining her age. He reported her to be of 17 years.
3. The order of the learned Magistrate whereby she had been sent Dar-ul-Amman was challenged before the learned Sessions Judge by mean of two revision petitions which were disposed of by him vide order date the 25th February, 1979. The view taken by the learned Sessions Judge wad that as there was dispute regarding her age and the validity of her marriage with Muhammad Rafique; her father, being her de jure guardian, was the proper person to get her custody. He, therefore, ordered accordingly.
4. The learned Single Judge in Chambers, who decided the constitutional writ against the order of the learned Sessions Judge, took notice of the fact that there were three different versions regarding the age of the appellant. According to her birth certificate she was less than 14 years. Her father also made a statement to the similar effect at the time of the registration of the criminal case. According to the report of the Radiologist, however, she was 17 years old. The learned Single Judge, therefore, observed that since the question relating to her age "falls in the domain of fact and fact alone . . . Constitutional jurisdiction is not an appropriate one to determine or give the appearance of determining such a question of fact". He also noted that in the nikahnama relating to the appellant's marriage with Muhammad Rafique the name of the girl is recorded as Rashida Nasreen whereas the name of the appellant as stated at the outset is Shabida Perveen, The learned Single Judge, therefore, declined to interfere in the order assailed before him. The operative part of his order reads thus:- "The question in the circumstances requiring determination would be only whether the decision given by the Sessions Judge in the revision petition is lacking in lawful authority or is in accordance with law. The Magistrate had ordered that she should be kept in Darul Aman. She cannot be kept there for the entire period of litigation or trial of the case which may ultimately even go to appeal.
Therefore, a more determinative order had to be passed with regard to the custody. It is apparent from the material on the record as well as from what the petitioner states that she is below 18 and therefore not a major. In the matter of custody the Court would, therefore, be justified in passing an order and not leaving her alone to look after herself. As the credentials of her husband are the subject-matter of adjudication in a criminal trial, it would not have been proper to hand her over to his custody because that would have foreclosed the point in issue or a determination of it. In the circumstances the Court could justifiably pass an order directing the handing over of the custody to the father with whom the mother of the petitioner is also residing. I do not consider that the order is lacking in lawful authority or that on the strength of her claim to be of 17 years she can succeed on a mere habeas corpus 'petition as such."
5. Learned counsel for the appellant contended that the learned Judge in Chambers had fallen in error in not permitting the appellant to go with Muhammad Rafique with whom she had contracted a valid marriage because she was sui juris at the time of that marriage. He relied on Mst. Aziz Mai v.
S. H. O., Police Station Jalalpur Pirwala, District Multan and another (1), to support his contention.
6. In the above-cited case, a Division Bench of this Court allowed a girl to go with her husband for the following reasons:- "Learned counsel for the complainant argued that the marriage was void as the appellant was not competent to enter into such an agreement. He next contended that the Intra-Court appeal is incompetent. We have heard lengthy arguments and are unable to agree with the submissions made. In paragraph 251 of Chapter XIV of the Principles
(1) PLD 1977 Lah. 432 of Mahomedan Law by D. F. Mulla, 1975 Edition, it is mentioned that every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage. In the explanation it is mentioned puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. It cannot be argued with success that the girl had not attained the age of puberty. Even according to learned counsel for the complainant the age of the girl as per birth certificate at the time of abduction was fourteen years and some months. Furthermore the girl is pregnant for the last 6/7 months. The fact has not been denied by learned counsel for the respondent. In these circumstances, we are of the view that the appellant had attained the age of puberty when she entered into the marriage contract with Ghulam Farid. Learned counsel for the complainant cited Allah Diwaya v. Mst. Kammon Mai PLD 1957 Lah. 651 and Mst. Atika Begum v. Muhammad Ibrahim Rashid Nawab 36 I C 20 in support of his contention. In the latter case the criteria laid down by the Judicial Committee is that the girl attains majority on happening of either of the two events, namely, the completion of 15 years or attainment of a state of puberty at an earlier period, which obviously means the first mensuration."
7. There are, however, a number of abduction cases in which a contrary view had been taken. In Muhammad Zakir v. Taj Muhammad etc. (1), a girl aged between 16/17 years wanted to go with the father of her deceased paramour instead of her husband, Hafeez or her mother, Mst. Barkat Jan, but another Division Bench of this Court did not allow her to do so and directed that she be handed over to her mother. In that case it was also held that although the gril being about 15 years of age was competent to contract marriage under the Muslim Law, yet for the purpose of the Majority Act, 1875 she was a minor and had to be given in the custody of a person who would take care of her welfare.
8. In Mst. Rahila v. The State and 2 others (2), a girl, namely, Mst. Rahila, and 14/15 years, was allegedly whisked away from her father's house by one Shahamand, brother of Rai Ahmad Khan, and subjected to rape. She was recovered after a case under section 363/366 of the Pakistan Penal Code was registered at the instance of her father. She filed a constitutional writ with a view to seeking relief for the accused persons against police and the complainant. The writ petition was dismissed with the following observations:- "After hearing her, I am satisfied that this writ petition has been filed on behalf of a minor girl (even from her bare look, she appears to be a minor) with a view to achieve several purposes. Firstly, in a rape case in which she is one of the victims, an attempt has been made to bind her down through an affidavit filed with the writ petition so that at any subsequent stage, she should not be able to appear against the accused as a witness; and, if she appears, she should be confronted with the contents of the petition as also the affidavit filed with it. It is interesting to note that she is not an accused person in the case. While the accused persons are filing separate petitions for their bail, none of them moved such a petition for purpose of restraining the police from so-called harassm ent of the accused. The accused are the
(1) 1977 P Cr. L 443 (2) PLD 1978 Lah. 1281 aggrieved persons qua the alleged harassment. And with regard to the F. I. R. Also, the accused are aggrieved persons. It cannot be said that the learned counsel is not aware of the well known provision contained in Article 199 of the Constitution that writ petitions are filed by 'aggrieved persons'. I am surprised at this move of filing a writ petition on behalf of a witness in a rape case, seeking relief for accused persons against police and the complainant. The second purpose of filing the petition appears to be to confuse the investigation and make an attempt at contradicting what has already been recorded as statement under section 164, Cr. P. C., and that is why by specific mention is made in the petition that the said statement was procured under duress. The said purpose of the petition is to get a commitment from the abductee and prosecutrix with regard to her age. When she visibly looks to be not more than 15 years of age, her age in the petition has been mentioned as 17 years. This obviously could not be the case of the victim and the entire material in the petition appears to be as if it is a statement made under section 342, Cr. P. C. By an accused person in rape case, as his defence. I am prima facie convinced that this petition has been moved with ulterior motive to frustrate lawful purpose commenced for the purpose of bringing culprits to book. It is prima facie an abuse of the Court."
9. Muhammad Anwar v. Muhammad Sideman (1), is another case having bearing on the point in issue. In that case, the abductee was with her brother and her alleged husband wanted to take her custody. This was not allowed for the following reasons:- "At present, it is stated that the abductee is with her brother. It will be unfair to the abductee if she is brought at the instance of the petitioner, her alleged abductor, to this Court. If the petitioner thinks that the abductee has not made the statement under section 164, Cr. P. C. Out of her free will, the accused would have an opportunity of establishing the same through cross-examination when she appears is a prosecution witness against them at the trial. Learned counsel has expressed an apprehension that the detenu being pregnant there is likelihood of the respondent causing her some physical harm. That is hardly a reason for the petitioner seeking the custody of the detenu. If the pregnancy is on account of rape and if in that situation she is restored to the petitioner, she will be under graver danger in so far as her pregnancy is concerned."
10. In Muhammad Inayat v. Ch. Muhammad Saleem and 2 others (2), it was held that in a case like the one before us when the alleged abductor is being prosecuted it is not possible, while hearing a habeas corpus petition arising out of that case, to prefer any other opinion evidence with regard to the age of the abductee as against the direct evidence of the father and the birth entry. As regards the statement of the abductee under section 164 of the Code of. Criminal Procedure in favour of the abductor, it was observed:- "If the trial Court also ultimately finds that \the version of the father in the F. I. R. With regard to age of the abductee is correct or that she was in fact forcibly abducted in the first instance, then all her statements recorded so far, whether under section 164, Cr. P. C., or in this
(1) PLD 1978 Lah. 1330 (2) PLD 1979 Lab, 154 Court in its writ jurisdiction, as also her purported affidavits, complaints against her own parents and other inspired or otherwise proceedings which have become almost the order of the day, in so far as the offences under section 363/366, P. P. C. Are concerned, would have to be put in juxtaposition to the plight of an abductee who is in the hands of her abductors as a tool of further oppression and humiliation. Proceeding on that basis it would not be proper for this Court to drag the alleged victim of a serious crime once again in this Court in exercise of powers under section 491, Cr. P. C , at the instance of her alleged abductor; particularly when an order under the said provision was earlier passed at the instance of his brother and the proceedings were dropped as no body took interest therein. An accused person in criminal case cannot be allowed the liberty as is claimed in this case, to deal with an abductee (who in this case is prima facie minor) in such a manner as to further humiliate her and ruin her future."
11. With utmost respect for learned Judges who decided the case of Mst. Aziz Mai, we are inclined to adopt the view taken in the cases of Muhammad Zakir, Mst. Rahila, Muhammad Anwar and Muhammad Inayat. The main reason for our so doing is that if a girl involved in a doubtful marriage is allowed to go with her alleged husband and ultimately the marriage is held to be invalid for having been contracted when the girl was not sui juris or a willing party to the marriage serious complications are likely to arise for the parties and others concerned. The investigation and trial of the criminal case registered against the alleged abductor, Muhammad Rafique is yet to take place.
It is not possible to say at this stage that the witnesses cited against him are false and that he had not committed the offence attributed to him. We are also unable to assume that, if tried, he would not be convicted. If during the trial or any other proceedings it is held that the appellant was not sui furls or she was forcibly abducted or her so-called consent to the nikah was not voluntary and, therefore, the alleged nikah was void, the stay of the appellant with her alleged husband and/or sexual intercourse would not only be rendered illegal but also might involve serious consequences of a finding relating to zina of one or the other type. There will also arise a question relating to the legitimacy of the off-springs, if any. In the circumstances, out of two choices, namely, the handing over of the custody of the appellant to her alleged husband and sending her with her A father, the safer course is the second one in which there will be no further risk. In other words, all the possible complications can be avoided if the appellant is given in custody of her father, subject, of course, to a declaration by a Court of competent jurisdiction that, her custody should be handed over to somebody else.
12. Another reason for which we will like to agree with the learned Judge in Chambers is that the question as to whether the appellant was sui furls at the time of the alleged marriage is a question of fact. As indicated earlier, there are three versions with regard to the age of the appellant. The correctness or otherwise of each version shall be determined by an ordinary Court of competent jurisdiction when witnesses and documents are produced and the witnesses are also subjected to cross-examination. This exercise cannot and should not be undertaken by the High Court while dealing with the Constitutional writs. The learned Single Judge had, therefore, rightly refrained from going into the question of her age for the purpose of determining as to whether she was sui furls at the time of her alleged marriage.
13. We are also conscious of the authorities reported as Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan etc. (1), Muhammad Shafi and another v. Muhammad Bakhsh and another (2) and Syed Mir Ahmad Shah v. The Pakistan and others (3), in which it has been ruled that when any dispute is decided by the High Court in exercise of its Constitutional jurisdiction the same cannot be reagitated before a civil. Court. Thus, If the question regarding the age of the appellant had been decided by the learned Single Judge it would not have been possible for the aggrieved party to successfully raise the same before an ordinary Court of competent jurisdiction.
14. One more consideration for which we are not in favour of the exercise of writ jurisdiction in the cases like the one in hand is that the relief claimed therein can be obtained by having recourse to the Courts of ordinary jurisdiction. In the present case, if the alleged husband of the appellant is keen for getting her custody he can file a suit for restitution of conjugal rights against her. On the other hand, if her father wanted her alleged husband to be punished for having abducted her he could proceed against him on the criminal side as already done by him. Even if the finalisation of some matter before the ordinary Court might take longer time than the one during which the Constitutional petition may be disposed of, that, by itself, is no reason for assuming Constitutional jurisdiction in cases which are not fit for that treatment. In this connection, we would also like to refer to Ghulam Muhammad v. Fukir Muhammad and another (4). Although this authority relates to a matter under section 491 of the Code of Criminal Procedure yet the observations made therein appear to hold good for a Constitutional writ as well. These observations read as follows:- "It is only obvious that this case essentially relates to a dispute regarding matrimonial affairs, it must therefore be laid before the Family Court of relevant jurisdiction, rather than before the High Court in its extraordinary jurisdiction under section 491, Code of Criminal Procedure. The allegations regarding wrongful confinement etc., if true, would also involve offences punishable under the Pakistan Penal Code, for which the normal venue is against the ordinary Criminal Court of the relevant jurisdiction. Recently we have held in the case of Imdad Husain v. Noor Hassan and others (Cr. Misc. Application No, 87/1974) that in appropriate cases, the High Court may refuse to exercise its powers under section 491, Cr. P. C., even if available, if the party can seek relief under the normal remedies provided by the law. We find this to be a fit case in which we would not like to interfere."
15. The upshot of the foregoing discussion is that the order passed by the learned Single Judge is unexceptionable. The appeal is, therefore, dismissed in limine.
(1) 1971 SCMR 447 (2) PLD 1971 Lah. 148
(3) PLD 1979 Lah. 589 (4) PLD 1975 Kar. 118