M.A. ZAFAR, J. - The petitioner Atta-ur-Rehman claiming himself to be the husband of Mst. Shafiqa Bibi detenue having entered into marriage on 7.11.2008 has filed this Habeas Corpus petition, which came up for hearing on 23.6.2009. The bailiff was deputed to recover the aforesaid detenue and produce her in the Court. She appeared in the Court on 24.6.2009 and made following statement:.- - "I am sui juris and has contracted marriage with Atta- ur-Rehman on 11.7.2008 against the wishes of my brother, father and other family members. I was residing with my husband. Just a week back my brother Zohaib and my brother-in-law Amin came to her house and stated that they will get the matter patched up with the family and then they will let her go back to her husband's house in respectable manner and thereafter, they beaten me and kept me in illegal confinement and pressurize me to get divorce from my husband Atta-ur-Rehman. I want to live with my husband. I do not want to get divorce from him."
On the said date, a birth certificate of Mst. Shafiqa having born on 26.10.1993 was placed on record and the respondent side alleged that at the time of the Nikah having performed on 7.11.2008, she was minor. The matter was referred to the Medical Superintendent Services Hospital, Lahore to constitute a Medical Board for the determination of age of Mst. Shafiqa and submit his report on 30.6.2009. Meanwhile, she was sent to Darul Aman with the direction to the Superintendent Darul Aman Lahore to produce the detenue on 30.6.2009.
2. On 30.6.2009 my learned brother Syed Shaheen Masood Rizvi, J. Refused to hear this case further on account of sentimental attitude of the learned counsel for the respondents Nos. 2 and 3.
Thereafter the case was taken up for hearing on 10.7.2009 and the same was adjourned awaiting the report of Medical Board. Today, the Superintendent Darul Aman has produced Mst. Shafiqa detenue and I have given about half an hour to see her parents and think over the matter, thereafter I asked where she has to go, she reiterated what she stated in her statement recorded on 24.6.2009.
3. On the other hand, learned counsel representing the respondents Nos. 2 and 3 submits that Atta- ur-Rehman petitioner with whom the detenue has contracted marriage, is father of three kids from his previous wife including a daughter of the age of the detenue. He also submits that petitioner used to come to the house of the detenue to teach Holy Quran and instead of teaching he enticed away the detenue. He further submits that the witnesses of Nikah have denied their signatures on the Nikahnama and thus, the very solemnization of the marriage of petitioner with the detenue is doubtful.
4. Having considered all the pros and cone of the case, I have noticed that according to the opinion of the Medical Board constituted for the determination of the age of Mst. Shafiqa, she was found to be about 17 to 19 years and according to the Muslim Law, a girl attaining the age of puberty will be deemed to have attained majority, which in Pakistan, is about 13 years as ruled out in a case of Shabbir Hussain @ Papu v. SHO Bhambianwala District Siaikot (PLJ 2007 Lahore 114). Moreover, according to the report of Medical Board, the detenue is major. She in categorical terms has stated in the Court that she wants to go with the petitioner with whom she has entered into a marriage. If the petitioner is already married having three kids and had suppressed this fact in the column of the Nikahnama that would not make him disentitled to marry or live with the detenue who is puberty, adult and sui juris. If she wants to live with him as his second wife knowing every thing; this Court cannot compel her to live against her wishes and go with her parents as urged by learned counsel appearing on their behalf. A sui juris girl is to be allowed whenever she wishes to go.
Reliance is placed on case titled Muhammad v. Mst. Maryam Bibi and another (1987 SCMR 906).
5. For what has been said above, this petition is accepted and Mst. Shafiqa Bibi detenue is set at liberty. At present she is in Darul Aman, Lahore in pursuance of Court's order, therefore, the Superintendent Darul Aman, Lahore is directed to permit her to accompany her husband Atta-ur- Rehman, the present petitioner.