1. SALMAN HAMID, J.---By this criminal miscellaneous application, the applicant Mst. Naseem Arain has sought her release from Darul Aman Larkana and permission to get married and reside with respondent No.2, namely Abdul Razzak Ghanghro.
2. The facts necessary for disposal of this application are that the applicant's parents without her consent married her off with one Bisharat Arain who forced her to lead immoral life. Confronted with such a situation, the applicant filed Family Suit No.25 of 2010, before Civil and Family Judge Mehar for dissolution of marriage by way of khula, which suit was decreed, ex parte on 29-6-2009.
3. Being annoyed with such bold step of the applicant Bisharat Arain and his other relatives declared her Kari and also tried to abduct her with the help of police officials. Even the applicant's parents turned against her. Faced with above precarious situation, the applicant preferred C.P.No.S-1066 of 2010 before this Court for directions to official respondents and other private respondents that she should not be harassed and intimidated and protection be provided to her and that she be allowed to live with the petitioner No.2, namely Abdul Rasheed.
4. During the course of hearing of C.P. No.S-1066 of 2010, it transpired that petitioner No.2 was first maternal cousin of the applicant whom at that time she was living with and wanted to continue living with him after the orders of this court. Under the circumstance the 'applicant's request was declined and it was ordered on 12-7-2010 in C.P. No.S-1066 of 2010 that either the applicant join her parents, who were present in court on that day or be sent to Darul Aman, Larkana if she refuses to go with her parents and the petition was disposed of. The applicant opted Darul Aman, Larkana over her parents.
5. It was in this backdrop that on 15-7-2010, the applicant Mst. Naseem filed the present Criminal Miscellaneous Application No.166 of 2010 from Darul Aman, Larkana seeking her release and permission to reside with respondent No.2, Abdul Razzak Ghanghro after contracting marriage with him. As the Cr.MA progressed, it came to light that the respondent No.2, with whom the applicant is desirous of getting married was already married twice and that the first wife with two children is living with him, while the second wife is separated. The applicant would be his third wife.
6. Under the circumstances, the learned counsel appearing on behalf of the applicant was required to satisfy this court that applicant's second marriage, after grant of khula by the Family Court and Abdul Razzak's third marriage with the applicant would be lawful without first complying with the provisions of section 6 of the West Pakistan Muslim Family Laws Ordinance 1961.'
7. Abdul Abdul Raziak produced affidavit of no objection of his first wife to the effect that she has no objection if Abdul Razzak marries the applicant. The deponent/first wife of Abdul Razzak also came to the court and confirmed the contents of her affidavit. Affidavit was taken on record. Affidavit of no objection of second wife of Abdul Razzak could not be obtained as presently she is separated and not on talking terms with Abdul Razzak.
8. 'Mr. Ghulam Sagheer Baloch, advocate filed Vakalatnama on behalf of the parents of the applicant and gave assurance, that if the custody of applicant is handed over back to them, they will not harm her. The applicant categorically refused to go with her parents.
9. Provisions of section 6 of Muslim Family Laws Ordinance, 1961 as per the case of Allah Rakha and others v. Federation of Pakistan and others - PLD 2000 Federal Shariat Court 1 are reformative and corrective in nature and for measures for prevention of injustice to the existing wife or wives.
10. Arbitration Council, is not empowered to make unlawful anything declared lawful by Islam.
11. Nevertheless, the polygamy in Islam is no more 'or no less than that of a permissible act and has never been considered a command and therefore, like any other matter made lawful in principle may become forbidden if it involves unlawful things or leads to unlawful consequences such as injustice.
12. Despite knowledge that it would be her second and Abdul Razzak's third marriage, why the applicant is adamant to go for the same is not very hard to find out. The applicant having been betrayed by many and she may not have the capacity to be betrayed any more and wants to protect herself from the vultures roaming all around her may want some protection, which she may have found in the shape of Abdul Razzak. A woman may need a man, in this male dominated society, not only as her companion or for any biological reasons but may be as a partner in life in times of unprecedented misery and hardships that may be faced by such fragile being. While this may be a paramount consideration for the applicant in getting married to Abdul Razzak the other reason may be that she knows him since long as they belong to the same village and that she has liking for him and he for her.
13. Keeping in view the above position, this court may come back to the observation of Federal Shariat Court in the above cited case that the arbitration council's function is reformative and corrective in nature. Looking at the peculiar circumstances of the case in hand and also the fact that the applicant cannot be left at the mercy of Darul Aman indefinitely and that she in not at all agreeable to go back to her parents, coupled with the no objection affidavit of-the first wife of Abdul Razak, it would be appropriate if the applicant, after completion of her iddat period of khula, granted to her by the Family Court is allowed to marry Abdul Razzak as this; could be one of the ways for minimizing the, injustice in life of applicant and assurance that she would not be dragged into leading immoral life and her getting married to an already married person would not be seen as violation of any morality.
14. Article 31 of the Constitution of Islamic Republic of Pakistan, 1973 provides that Muslims are enabled to live their lives in accordance with the fundamental concepts of Islam and under Article 35 thereof, the State is required to protect institution of marriage. Since the applicant has clearly expressed her unwillingness to go back to her parents, they may also not be present at the time of her Nikha with Abdul Razzak. If that would be the case, then this Court feels that a reasonable amount of mehr of the applicant is fixed inasmuch as Koran-e-Karim ordains that:-- "And give to the women their mehr"
15. Surah An-Visa (4), Verse 4 "They ask your instruction concerning the women, say: Allah instructs you about them, and what hath been recited unto you in the Book concerning the orphan girls whom you give not the portions prescribed, and yet whom ye desire to marry, and the children who are weak and oppressed, and that you stand firm for justice to orphan. There is no a good deed which you do, but Allah is well- acquainted therewith."
16. Surah An-Nisa (4), Verse 127.
17. Therefore, this Court directs the Superintendent Darul Aman. Larkana to fix the mehr of Mst.
18. Naseem/applicant as Rs.125,000 unless D she demands more than what has been fixed here. This petition is disposed of in terms of the above.