' The present is a habeas corpus petition for the recovery of the alleged detenue, Mst. Shehzadi, aged 22 years.
2. In pursuance to the order dated 44-1990, the bailiff had submitted his report and Mst. Shehzadi, the alleged detenue, aged 22 years, had been produced in the Court.
3. Mst. Shehzadi stated as follows:- "That her parents were detaining her against her will and further stated that her nikah had been performed with the petitioner, but no Rukhsati had taken place till date. She further stated that she wanted to go with the petitioner, her husband."
4. According to the report of the bailiff, the alleged detenue was in the custody of her own father, Ghafoor Ahmed, respondent No, 1, who had handed her over to the bailiff, but had refused to accept the notice.
5. In view of what had been stated by Mst. Shehzadi, as no "Rukhsati" had taken place till date, therefore, it was held that no case for allowing her to go with the petitioner was made out under the circumstances. Here it needs to be pointed out that, on the other hand, the petitioner had claimed, as stated in the petition, that the alleged detenue and the petitioner had been living together as husband and wife, with the blessings of the mother of Mst. Shehzadi, the alleged detenue.
6. However, the learned counsel requested for a short adjournment to make his submissions in support of the contention that the detenue be set free to go wherever she pleases, as she had stated that she was being detained against her will by respondent No, 1, her father.
7. In view of the request of the learned counsel for the petitioner, the case was adjourned to 8-4- 1990. The learned A.A.-G. Was directed to assist the Court on the point involved.
8. Meanwhile, it was directed that the alleged detenue Mst. Shchzadi, aged 22 years, shall be lodged at Dar-ul-Aman, Lahore.
9. The alleged detenue, Mst. Shchzadi has been produced in the Court. The respondent, Ghafoor Ahmed, father of the alleged detenue, Mst. Shchzadi has also put in appearance. He is also represented by a counsel.
10. The respondent denies the existence of a nikah between the petitioner and the alleged detenue, Mst. Shchzadi.
11. Mst. Sakina Bibi, the mother of the alleged detenue is also present in the Court and denies the alleged nikah having taken place between the petitioner and the alleged detenue. She further states that she was not a party to any nikah whatsoever. It may be pointed out here that it has been stated in the petition that the nikah of the petitioner with the alleged detenue, Mst. Shchzadi had taken place at Lahore with the consent of her mother.
12. The learned counsel for the petitioner, on the other hand, argued that the alleged detenue, Mst.
Shchzadi admitted in her statement that the nikah in question had been performed and that she had further stated that she was being detained by her parents against her will, and as she is sui juris, therefore, the Court is under legal obligation, as he put it, to hand her over to the petitioner.
13. The learned counsel had also placed reliance on PLD 1977 Lahore 432. The learned counsel had read out paras. Nos. 5 and 7 to support his contention. In this case the detenue therein had been living with her husband, the petitioner therein, and was pregnant at the relevant time, therefore, a perusal of the same makes it abundantly dear that the case relied upon does not apply to the facts of the present case.
14. The learned A.A.-G., present on Court's call submitted that the only question need to be determined is whether or not, the `nikah' is valid, and if it is held that the `nikah' is genuine, then in view of the alleged detenue being a sui juris, she should the allowed to go wherever she wills.
However, in view of what has been stated above, this argument is not relevant, hence not applicable to the present case.
15. Although it has been stated in the petition that the nikah of the parties was performed with the blessings of Mst. Sakina Bibi, the mother of the alleged detenue, and, furthermore, that they were living together with her blessings, but as the said Mst. Sakina Bibi has denied any such nikah having taken place or any such blessing bestowed on the parties for living together, and as the alleged detenue herself stated that no "Rukhsati" had taken place till date, therefore, the Court is not persuaded that a case for handing her over to the petitioner is made out; nor shall the Court allow its jurisdiction under section 491, Cr.P.C. To be invoked to effect a "Rukhsati". Furthermore, as the Nikah' claimed has been called in question by the respondent No, 1, the father of the alleged detenue and by her mother as well, as stated earlier, therefore, the alleged detenue shall not be set at liberty either, as a matter of abundant caution, so as to prevent the Court from, unwittingly, becoming a party to facilitating a relationship between the petitioner and the alleged detenue that may not have the sanction of law and may militate against the norms of morality and the dictates of religion. However, the question whether the nikah is valid or not, is to be determined by the forum of competent jurisdiction in this respect, therefore, there shall be no observation to that effect at this stage.
16. It may be observed here that any restraint placed on the movements of a son or a daughter by a father out of concern for his or her welfare and to prevent ill-advised action by him or her cannot be termed illegal or improper detention unless such a restraint is patently unjust, cruel and obviously not in the best interest of the son or daughter so restrained; or if the general attitude and the usual treatment of the son or daughter by the father is such that it may attract the penal provisions of law. Otherwise it is accepted by every civilized society and duly approved of by every moral code and sanctioned by every religion, that, within limits prescribed, a parent has the right to restrain from, and to admonish in respect of, and to give practical expression to his or her disapproval of, the conduct unbecoming. In his or her judgment, of a son or daughter.
17. In the present case the alleged detenue has not accused the respondent No, 1, her father, of unjust or cruel behaviour or even of maltreatment generally. She only wants to go with the petitioner against his will and in this respect, in league with the petitioner, seeks that the discretion of the Court should come to her help. However, under the circumstances, the Court is not persuaded to exercise its powers and discretion to defy the parental authority or to make an order as a result of which the respondent No, 1 shall be forced to relinquish the custody of a daughter whose "Rukhsati" has not taken place, as admitted by the daughter herself i.e, the alleged detenue, and even the genuineness of the "Nikah" is not accepted by her parents. There may be defiance of parental authority but it shall have to be without the support of the provisions of law sought to be invoked in this respect, in the prevailing circumstances of the present case.
18. Therefore, the moral dilemma and the legal question involved is resolved accordingly and it is hereby held that the custody of Mst. Shchzadi by the respondent No, 1, Ghafoor Ahmed, her real father, under the facts and circumstances of the case, is neither illegal nor improper.
19. In view of what has been stated above, no case is made out for setting the alleged detenue at liberty, therefore, the custody of the alleged detenue, Mst. Shehzadi is hereby restored to her father, Ghafoor Ahmad, respondent No, 1, present in the Court. Accordingly, this habeas corpus petition stands disposed of.