MUHAMMAD QASIM KHAN, J.---Today, Mst. Jameela Bibi, the alleged detenue, appeared before the Court and made an explicit statement (recorded on a separate sheet), wherein she stated herself to be a puberty, married with Muhammad Iqbal respondent No,2 with her free will and wanted to accompany her husband.
2. The learned counsel for the petitioner (Allah Nawaz)/father of Mst. Jameela Bii, on previous date had raised certain important queries with regard to the age of his daughter and by referring to Birth Certificate argued that Mst. Jameela Bibi was of tender age. The learned counsel therefore, by questioning the legality of her marriage with respondent No,2 contended that in fact Mst. Jameela Bibi was being subjected to rape by respondent No,2; as otherwise, she being a minor girl could not enter into marriage. The learned counsel also referred to section 375, P.P.C. To substantiate her arguments.
3. The learned counsel for respondent No,2 on the other controverted the above arguments of learned counsel for the petitioner and argued that though Mst. Jameela Bibi may be of tender age, but she otherwise has attained the age of puberty and according to her own statement, she contracted marriage with Muhammad Iqbal with her freewill and consent, as such, the relationship between the pair is just that of husband and wife, therefore, they cannot be attributed the allegation of rape. Lastly, argued that since Mst. Jamela Bibi herself has made an explicit statement, as such, she be set at liberty.
3A. 1 have considered the arguments of learned counsel for the parties and perused the available record.
4. To resolve the above controversy between the parties, this Court vide order dated 8-8-2012 ossification test of said girl was directed to be arranged. Pursuant to said direction of the court, reports of the medical experts are available on the file. Dr. Saleem Hussain Shah, Principal Dental Surgeon, Nishter Institute of Dentistry, Multan in his report dated 15-8-2012 has declared the age of Mst. Jameela Bibi to be fourteen years. Dr. Naveed Hyder, Senior Registrar, Radiology, Nishter Hospital, Multan in his report has mentioned the radiological bone age of the girl as fourteen to fifteen years. It is therefore, established that Mst. Jameela Bibi at the time of her alleged marriage with Muhammad Iqbal respondent No,2 was below the age of sixteen years. However, according to the Medical Legal Certificate, the Senior Demonstrator, A Forensic Medicine Department, Nishtar Medical College, Multan observed that "On examination her pubic hair are well grown. Axillary's hair are grown.. Breast developed giving H/O menstruation 2 years. So all secondary sex characters are developed". Now the question arises: Whether marriage of a girl, below the age of sixteen years, who is otherwise pubert, is valid or not?
For better determination of this issue, Sections 250 and 251 of Muhammadan Law by D.F. Mulla is referred, which reads as under:-- "250. Definition of marriage. -Marriage (nikah) is defined to be a contract which has for its objection the procreation and the legalizing of children.
251. Capacity for marriage.-(1) Every Muhammedan of sound mind, who has attained puberty, may enter into a contract of marriage.
(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians."
(3) A marriage of a Muhammedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent."
' In the case in hand, although as per reports by the Experts Mst. Jameela Bibi is of the age of 14-15 years, but according to the statement of said girl she has attained the puberty and furthermore the report of Medical Legal Certificate by the Senior Demonstrator, Forensic Medicine Department, Nishter Medical College, Multan that "On examination her public hair are well grown. Axiliary's hairs are grown. Breast developed giving H/O menstruation 2 years. So all secondary sex characters are developed" substantiates the claim of Mst. Jameela Bibi therefore in the absence of any evidence to the contrary, she is presumed to be pubert. In this respect guidance has also been sought from a judgment of the Hon'ble Supreme Court of Pakistan "1. YOUSUF MASIH ALIAS BAGGAH MASIH, 2.
YOUNUS MASIH ALIAS JOONA. MASIH v. THE STATE" (1994 SCMR 2102), Wherein, their lordships held that 'All original texts of Hanafi Jurisprudence are unanimous on point that 9 years minimum age on which declaration of a girl about her puberty can be accepted." Therefore, for all intents and purposes the relationship of Mst. Jameela Bibi with Muhammad Iqbal would remain to be that of husband and wife, as according to the above reproduced provisions just on the ground of minority the marriage will not become invalid, unless consent of the minor who enters into marriage, is not obtained. In this respect reference may be made to the case "MST. HAJRA KHATOON and another v.
STATION HOUSE OFFICER, POLICE STATION FATEH JANG, DISTRICT ATTOCK and 2 others" (PLD 2005 Lahore 316), wherein it has been held that "Nikah/Marriage contracted by a woman, not having attained the age of majority, as defined in law, but having attained puberty as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void." Furthermore, even the Child Marriage Restraint Act (XIX of 1929), does not declare marriage of a girl who is pubert but under the age of sixteen years to be invalid or void. Had the legislators any intent to declare the marriage of a girl below the age of majority. Invalid, a specific clause could be inserted in the Child Marriage- Restraint Act (XIX of 1929). In the absence of any such specific provision in the Act, ibid, it would be highly unjust to import a negative intent which' was not considered by the legislators at the time when said law being formulated.
5. It is therefore, held that marriage of a muslim girl, she may be below the age of sixteen years who has otherwise attained puberty and is also a consenting party to the marriage and there being no factor whatsoever to disbelieve the said factual position is valid for all intents and purposes. The next question would be whether .The case of such a couple would fall within the definition of section 375, P.P.C. And this relationship can be termed as "rape"? In order to elucidate this point, section 375 PPC is reproduced hereunder:-- "375. Rape. -A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:-- i. Against her will; ii. Without her consent; iii. With her consent, when the consent has been obtained by putting her in fear of death or hurt; iv. With her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or v. With or without her consent when she is under sixteen years of age."
Although section 375(v), P.P.C. Provides that: in case of sexual intercourse of a man, with a girl under the age of sixteen would amount to- rape, whether such act is committed with, or without the consent of such girl, but I am afraid this section, cannot be made applicable to the case where a girl, though under the age of sixteen years, in explicit terms admits to have entered into marriage, as is the case in hand. The word 'rape" has been defined in BLACK'S LAW DICTIONARY-SIXTH EDITION as under:-- "Unlawful sexual intercourse with a female without her consent The unlawful carnal knowledge of a woman by a man forcibly and against her will. The act of sexual intercourse committed by man with a woman not his wife and without her consent, committed when the woman's resistance is overcome by force or fear, or under other prohibitive conditions.
' A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the female is unconscious, or (d) the female is less than 10 years old."
Keeping in view the above reproduced definition of word "rape" in BLACK'S LAW DICTIONARY Sixth Edition, the relationship of Mst. Jameela Bibi with Muhammad Iqbal respondent No,2 cannot be equated with "rape". In the same terms it may be held that performance of conjugal rights by the spouses, even though the girl may be below the age of sixteen years but has attained puberty and is also consenting party to such marriage, cannot be termed as "unlawful sexual intercourse" so as to attract section 375, P.P.C. In order to initiate proceedings against them.
6. For what has been discussed above, since, Mst. Jameela Bibi claims herself to be pubert and by admitting her willful nikah with Muhammad Iqbal respondent No,2 deposed to accompany her husband, therefore, the instant petition is found to be devoid of merit, resultantly the same is dismissed and Mst. Jameela Bibi is set at liberty.