This is an application under section 491 of the Code of Criminal Procedure, by one Muhammad Ashiq, for the recovery of his wife Mst. Safia Akhtar, from Darul. Aman and her being set at liberty.
2. The facts leading to this petition are, that Muhammad Ramzan respondent No. 4, father of the detenu, lodged a report on 21st January 1972, at Police Station, Narang, in Sheikhupura District, under sections 363 and 366 of the Pakistan Penal Code, alleging that Muhammad Ashiq (petitioner and his mother had abducted his daughter Mst. Nawab alias Nabban alias Safia Akhtar. The petitioner applied for bail before arrest in the Court of the Additional Sessions Judge, Sheikhupura, alleging that Mst. Safia Akhtar, the detenu, was his legally wedded wife and that their marriage had been performed in accordance with law on 1st February 1972. He was granted interim bail till 22nd February 1972, and was directed to produce Mst. Safia Akhtar, the detenu, before the police and get her statement recorded under section 164 of the Code of Criminal Procedure.
3. In obedience to the aforesaid order of the Additional Sessions Judge, the petitioner produced Mst. Safia Akhtar, the detenu, on 23rd February 1972, before the Police A. S. 1. Muhammad Ishaq respondent No. 3, produced her in the Court of Mr. Waqar Ahmad, Magistrate 1st Class, Ferozewala, respondent No. 2, in order to get her statement recorded. How--ever, the Magistrate directed that the detenu be lodged in Darul Aman for 24 hours and produced there from on 24th February 1972 She was thus lodged in Darul Aman and was produced there from on the following day. Her statement was recorded. She stated before the Magistrate that she was the wife of the petitioner.
She also stated that she had not been abducted by anybody. She showed her desire to accompany her husband, the petitioner the Magistrate did not allow her to do so and instead passed an order that she be detained in Darul Aman for n period of six months.
4. It is alleged that the order of the Magistrate sending the detenu to Darul Aman is without lawful authority and her stay in the aforesaid institution amounted to illegal detention. She is alleged to be 18 years of age.
5. In view of the aforesaid allegation, the petition was admitted. Notice was issued to the Superintendent of Darul Aman and Station House Officer Police Station Narang. A bailiff of this Court was deputed to recover the detenu from Darul Aman and produce her. The Station House Officer of Narang Police Station was directed to produce the file of the case entitled, State v.
Muhammad Ashiq (F. I. R. No. 10/72 dated 21st January 1972). On the following day, Muhammad Ramzan, the father of the detenu, appeared and applied that he be made a party to the proceedings. Since the petitioner's counsel had no objection, he was impleaded as a respondent.
The detenu was produced. However, on that day, i. e. 6th March 1972, the Police Officer was not present and he had not brought the police file relating to F. I. R. No. 10/72 dated 21st January 1972, and, therefore, the matter was adjourned to 9 March 1972, for which date, the Police Officer was summoned with the file. The detenu was sent back to Darul Aman. She was directed to be produced there from on 9th March 1972.
6. The detenu has been produced. Muhammad Ramzan, her father, is present and so is A. S. I.
Muhammad Ishaq, of Narang Police Station, along with the police file. Statement of Mst. Safia Akhtar has been recorded.
7. She has stated that she was not abducted by the petitioner. She has been shown the nikahnama.
She admitted to have thumb-marked it. She deposed that she had attained puberty and was 18 years of age. She also added that she went over and married the petitioner of her own free will, because her father Muhammad Ramzan intended to marry her to an old man from whom he had charged Rs. 2,000. She indicated her desire to live with the petitioner. She stated categorically that she did not want to reside with her parents nor did she want to live in Darul Aman. When questioned by the counsel for the petitioner, she stated that she was produced before a Magistrate to make her statement. She made the same statement before him as she has made today. She told the Magistrate that she wanted to go with her husband. However, she was not allowed to do so and was sent to Darul Aman. She was questioned by counsel for respondent No. 4 with respect to birth entry Exh. R.I. Which relates to the birth of a daughter to Muhammad Ramzan, bearing the name of Mst. Nawab Bibi. An attempt was made to show that the detenu was, in fact, named Nawab Bibi at birth although she came to be known as Mst. Safia Akhtar thereafter. She did not admit that she was ever known as Nawab Bibi. She said, that she was Safia Akhtar and was the daughter of respondent No. 4. The date of birth of Mst. Nawab Bibi, shown in the aforesaid document is 2nd August 1956. Even if, this is to be taken as relating to the detenu, she was, in any case, above fifteen years of age at the time of her marriage to the, petitioner. Statement of Muhammad Ram--an also reveals that Mst. Nawab Bibi, whose birth certificate he had produced, was also called as Safia Akhtar out of love.
8. There is no denying the fact that the detenu, even according to Exh. R. 1: produced by respondent No. 4, was more than fifteen years of age at the time of her alleged marriage with the petitioner.
This marriage is proved by a document produced by the petitioner, which is nikahnama harked 'A' and is sup--ported by the detenu herself. Her age in this document is given as eighteen years.
Assuming that Exh. R. I. Is the birth certificate of the detenu, as I have stated above, even, according to this document, she is above the age of fifteen years. Article 251 of the Principles of Muhammadan Law by D. F. Mulla (14th Edn.) is to the effect that every Mohammadan of sound mind, who has attained puberty may enter into a contract of marriage. Explanation to this section is to the effect that puberty is presumed in the absence of evidence on completion of fifteen years.th It is nobody's case that the detenu was not more than fifteen years of age at the time of her alleged marriage. Therefore, the question would be, irrespective of the criminal case registered against the petitioner, as to who is entitled to her custody, and whether her detention in Darul Aman can, by any means, be said to be legal.
A similar question came up for decision in the case of Mauf Ali v. Syed Safdar Hussain Shah and another (1970 P Cr. L J-1035). First in--formation report in that case was lodged by Mauj Ali on 4th November 1969, under section 363/366 of the Pakistan Penal Code, with Police Station `B' Division, Sahiwal, alleging that his daughter Mst. Musarrat, had been abducted by one Syed Safdar Hussain Shah from the premises of Shama Cinema, Sahiwal. Challan was submitted in the Court of a Magistrate at Sabiwal. Syed Safdar Hussain Shah on the other hand, alleged that Mst. Musarrat was his legally wedded wife, having been married to him on 7th November 1969, at Rawalpindi. He contended that he was entitled to her custody. He filed an application for her recovery under section 491 of the Code of Criminal Procedure. A bailiff was deputed. She was recovered and produced in Court. Mauj Ali, the father of Mst. Masarrat, the detenu made an application to be impleaded as a party. He alleged that Mst. Musarrat was below sixteen years of age. The respon-- dent abducted her on 31st October 1969, and that a case under section 363/366 of the Pakistan Penal Code was pending against him. His case was that .The petition preferred by Syed Safdar Hussain Shah was mala fide. In fact, he was detaining Mst. Musarrat. After hearing the parties it was held: - "It is not disputed that Mst: Musarrat has attained the age of puberty and she had married with respondent No. 1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Child Marriage Restraint Act, and therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, respondent No. 1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband."
The Supreme Court refused to set aside the order of the High Court by which custody of the detenu was given to her husband.
10. In the case of Mushtaq Ahmad v. Mirza Muhammad Amin and another (PLD 1962 Kar. 442) a Division Bench in a writ petition, observed: - According to Muslim Law, the minority of a male or female terminates, when he or she attains puberty. Puberty is presumed of the completion of the 15th year according to -the law by which the parties are governed. Under the Majority Act of 1875 minority ceases on the completion of the 18th year. Section 2 of the said Act, however, makes an exception in matters relating to marriage, dower, divorce and adoption."
In this case also, the facts were almost similar to the present one. A girl by the name of Shagufta Parveen was allegedly abducted by Mushtaq Ahmad. A case of abduction was registered against him at Quetta. However, the girl and the said Mushtaq Ahmad entered into a lawful marriage thereafter. Both of them lived as husband and wife for some time, and then the father of the girl met the couple and persuaded the petitioner to let the girl go with him to Quetta upon a promise that she would be restored to him. He refused to restore her subsequently. It is then that Mushtaq Ahmad moved an application before the District Magistrate under section 552 read with section 100 of the Code of Criminal Procedure, praying that Mst. Shagufta Parveen be set at liberty. She was produced before the District Magistrate on 10th January 1962, and was examined. She supported the petitioner. The age of the girl was disputed and the District Magistrate sent her back to the custody of her father Muhammad Amin till the decision of that question. Mushtaq Ahmad had, by then, been challenged - under sections 363 and 366 of the Pakistan Penal Code. The District Magistrate then ordered that the girl should be produced by the father on 9th February 1962.
However, she was not produced and the matter was postponed to the following day. On that day also, she was not produced. When the respondent found that the District Magistrate might hand over the girl to her husband, he made an application notifying his intention to move for the transfer of the case and prayed for adjournment. This was granted and the matter stood adjourned for three weeks. It is then that the habeas corpus petition was moved by Mushtaq Ahmad in the High Court on 15th February 1962, and upon a rule nisi having been issued Mst. Shagufta Parveen was produced on 22nd February 1962. She was examined. She stated that she was not prepared to go with her father. Their Lordships, as has been pointed out above, observed that as the girl had attained puberty, she had married the petitioner of her own free will, thus only the husband, i.e., the petitioner was entitled to her custody and she was --- made over to him.
11. Now, we turn to the next question, whether the order of respondent No. 2, Mr. Waqar Ahmad sending the girl to Darul Aman for six months and be detained there, is correct in law. The girl, who had been produced before him claimed to be the legally wedded wife of the petitioner. The purpose for which, she had been produced, was to record her statement. The statement was recorded. She was not an accused in the case, for which purpose perhaps, she could be detained.
She was, at best, a prosecution witness and if necessary, she could be asked to execute bond for appearance in Court, when called upon to do so. There is no law, which authorised the Magistrate to send her to Darul Aman and be detained there, especially, when she claimed to be major and wanted to accompany her husband. Seen from whatever angle, the order of the Magistrate appears to me to be wholly unwarranted and illegal. Mst. Safia Akhtar was not to be treated like a chattle and be sent to Darul Aman to be detained there. If the Magistrate 'really felt that she was below the marriageable age and could not marry of her own free will, he could have got her medically examined and then could have sent her with her father. Since nothing of the sort was done and only her statement was recorded, wherein, she claimed to be the wife of the petitioner, order should have been that she should accompany the petitioner, of course with any restrictions regarding her appearance as a witness at the trial. For the aforesaid reasons, I am of the view that the order of the detention of Mst. Safia Akhtar in Darul Aman, at the instance of the Magistrate, is illegal. She has been wrongfully detained there. Thus, the application is allowed and the detenu is set at' liberty. She may accompany her husband or live wherever she likes.
12. This order would not, in any way, affect the decision of the criminal case, which is pending against the petitioner for investigation with the police.