' By a short order, dated 9-9-1980, I disposed of this Habeas Corpus Petition for reasons to be recorded later. I had directed that the custody of the detenu, namely, Mst. Zohran, be handed over to her father Ghulam Haider. I now proceed to record my reasons for the order.
2. The facts of this case are that on 4-7-1980, a report was lodged by Haji brother of Mst. Zohra, the detenu, at Police Station Kala, District Dera Ghazi Khan, against 4 persons namely, Sajjad Hussain petitioner, his sister Mst. Rukia, his father Fazal and his mother Mst. Basai under section 11 of Ordinance VII of 1979. It may be mentioned that Mst. Rukia is the wife of Allah Wasaya, a brother of the detenu. The allegation made in the report was that during the night between 26/27-6-1980, the aforementioned four persons had abducted Mst. Zohra from the complainant's house with the intention of marrying her to one of them, namely, Sajjad Hussain petitioner. Mst. Zohra was recovered by the police and produced before the Additional Deputy Commissioner (General) Dera Ghazi Khan, for recording her statement under section 164, Cr.P.C. Where she stated that she was married to Sajjad Hussain four years prior to the occurrence. The learned Additional Deputy Commissioner (General) got her medically examined for determining her age. The Medical Officer, Dera Ghazi Khan, gave his opinion that her X-ray age was 15/16 years. As she did not wish to go with her father, she was sent to Darul Aman at Dera Ghazi Khan, where she was ordered to remain till 19- 8-1980. In the meanwhile, petitioner Sajjad Hussain filed this petition contending that the confinement of Mst. Zohra in Darul Aman was illegal and that she be set free.
3. The bailiff of this Court, who had been deputed for the purpose, brought the detenu from Darul Aman, Multan and produced her before this Court. The case was contested by Haji respondent No,3, brother of the detenu Mst. Zohra's father, who was not impleaded as a respondent, and has regularly been appearing in this Court. His stand has been that the detenu was never married to the petitioner. The counsel for Haji respondent No,3 took up the stand that the detenu was a minor and as such she should be sent with her father, who was her natural guardian.
4. While the case was proceeding in this Court, I had directed the detenu to be kept at Darul Aman.
I also recorded the statement of the detenu. Although her father, mother, as well as her brother were present in Court, she expressed her wish to go with Sajjad Hussain petitioner, saying that he was her husband.
5. The pctitioner has submitted in his petition, which is supported by an affidavit, that at the time of the marriage of his sister Mst. Rukia with the brother of the detenu, it had been agreed upon that in exchange the detenu would be married to the petitioner and that accordingly a year after the marriage of Mst. Rukia, the father of the detenu married the detenu to the petitioner. It is further submitted in the petition that as 'the detenu was minor at the time of the Nikah, therefore, Rukhasati did not take place'. The petitioner's sister continued to live in the house of her husband from whom she has three children. This roughly indicates the date of her marriage and therefore, also the date of the alleged marriage of the petitioner. It is also submitted in the petition that when the detenu attained puberty she was brought to the petitioner's house by her mother and brother where the detenu and the petitioner are now living as husband and wife. The petitioner's case is that as the marriage was opposed by the father of the detenu, he, therefore, got a false case registered against him and others. It is also stated in the petition that before the statement of the detenu was recorded under section 164, Cr.P.C. She had been got medically examined and her age was found to be 15-1/2 years. However, according to a medical certificate, which had been obtained previously, she was shown to be 15/16 years of age. In any case, in view of the petitioner's own submissions, the detenu is undoubtedly below 18 years of age. The question which requires determination, therefore, is whether she could be set at liberty to go wherever she pleased.
6. Learned counsel for the petitioner has raised the following contentions:--
(i) that the detenu having attained the age of puberty, she should be allowed to go wherever she pleases.
(ii) that the detenu being a sui juris, could not be detained against her wishes.
(iii) that, in any case, the petitioner being the husband is the natural guardian of the detenu, and he is entitled to her custody.
' In support of the first two contentions, learned counsel submits that according to Muslim Law, a girl becomes major when she attains puberty. It is, therefore, asserted that the detenu being a major cannot be detained against her wishes. The question as to the age of a minor upto which her natural guardian can retain her in custody has elaborately been considered in Muhammad Sadiq v. (Mrs.) Safoora Sadiq PLD 1963 (W.P.) Lah.
534. In this case, the following passage appearing at page 438 of Baillie's Digest of Muhammadan Law, 1957 Edition is quoted:-- "With regard to a female, if she be suyyib (that is a woman who has known sexual intercourse), but cannot be safely left to herself, she is not to be set free, and the father ought to keep her with himself. If, however, she may be trusted to take care of herself, her father has no right to retain her, and she should be left free to reside where she pleases. If she is adult and a virgin, her guardians have right to retain her though there should be no apprehension of her doing anything wrong, while she is of tender age. But if more advanced in years and of ripe discretion and chaste, they have no right to retain her, and she may reside wherever she pleases."
' From the above passage, it is apparent that the age of discretion is to be distinguished from the age of puberty in matters of guardianship, and a girl who cannot be safely left to herself is not to be set free, even though she might have attained puberty. The attainment of the age of puberty itself cannot be a ground for setting a girl free. However, what has been found in the above cited judgment is that the age of majority in Pakistan for purposes of guardianship is to be ascertained from the relevant statutory provisions. According to section 25 of the Guardians and Wards Act, 1890:-- "If a ward leaves or is removed from the custody of a guardian of his person the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
' The term 'minor' is defined in subsection (1) of section 4 of the aforesaid Act, to mean 'a person who, under the provisions of the Majority Act 1875, is to be deemed not to have attained his majority'. Since the definition of the term `minor' has referred to the majority Act, 1875, it is necessary to examine the provisions of sections 2 and 3 thereof, which are reproduced below:- "2 Nothing herein contained shall affect:--
(a) the capacity of any person to act in the following matters--marriage, dower, divorce and adoption;
(h) the religion, religious rites and usages of any class of her Majesty's subjects in Pakistan or
(c) the capacity of any person who before this Act comes into force has attained majority under the law applicable to him.
"3 Subject as aforesaid, every minor of whose person or property a guardian, other than for a suit within the meaning of Chapter XXXI of the Code of Civil procedure, has been or shall he appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall notwithstanding anything contained in the Succession Act (X of 1885), or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years, and not before:-- ' Subject as aforesaid, every other person d miciled in Pakistan shall he deemed to have attained his majority when he shall have completed his age of eighteen years and not before."
7. In view of the above provisions and the fact that no guardian of the person of the detenu has been appointed, she will attain majority when she reaches the age of eighteen years. According to Guardians and Wards Act, and Majority Act, 1875, the detenu must be deemed to be a minor for purposes of guardianship notwithstanding the attainment of puberty. In this respect, the provisions of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), also need examination. The section is, therefore, reproduced below:-- "2. Application of the Muslim Personal Law.--- Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy, or bastardy, female relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslim."
' It may be noted that according to the above-quoted section for purposes of guardianship, the application of Muslim Personal Law (Shariat) has been made `subject to the provisions of any enactment for the time being in force'. This means that the Muslim Law by which the minor is governed has to be applied subject to the provisions of the enactments in force, i,e, the Majority Act, 1875, and the Guardians and Wards act, 1890. It was observed in the aforesaid Muhammad Sadiq's case as follows:-- "Now, in the present case, if the rule or decision was only the personal law of the minor, then it is clear that Mst. Aisha Bibi having attained the age of fifteen years, and there being nothing to show that she is not of ripe discretion, she would have to be regarded as major and emancipated from the authority of the natural guardian namely, her father. However, as already observed the application of the personal law in the matter of majority and guardianship is, as provided in section 2 of the West Pakistan Muslim personal Law (Shariat) Application Act (V of 1962), subject to the provisions of 'any enactment for the time being in force. We may first examine the effect of the Majority Act, 1875 according to which Mst. Aisha Bibi continues to be a minor until she attains the age of 18 years. Section 2 of the Majority Act gives the exceptions to this rule, namely, in the matter of marriage, dower, divorce, adoption, religion, religious rites and usages etc. But in the present case we are not concerned with any of these matters."
' In the same judgment the following observation was also made:--- "We have already noticed that under the Muslim Law the period of guardianship of the father extends to the attainment of majority by the minor, and majority is attained, under the Muslim Law when the minor becomes of ripe discretion. The Majority Act has clearly superseded this concept of the Muslim Law by fixing a definite age namely, 18 or 21 years, as the case may be, at which majority shall be attained by all citizens, irrespective of their religion. The only exceptions contemplated by the Legislature are in the matter of marriage, divorce, dower, adoption, religion, or religious rites; with regard to all other matters the Majority Act is to operate. That being the case, the parental authority vesting in the father under the personal law applicable to the minor, would continue to exist until the minor attains emancipation from that authority, by becoming a major under the general law of the land. I cannot persuade myself to hold that while enacting the Majority Act, 1875, the Legislature intended to create a vacuum in the matter of Muslim children between the age of 15 when they would attain puberty or majority under the personal law and the age of 18 when they would attain majority under the law of the land.
8. A Respectfully apeeing with the views expressed in the case of Muhammad Sadiq I find that the detenu who unquestionably, is below the age of 18 years cannot be set free to go wherever she pleases. Her guardian, whoever he may be, is entitled to keep her in his custody till such time as she attains the age of 18 years.
9. This brings me to the second question which the petitioner's learned counsel has raised. He asserted that the detenu is the petitioner's legally wedded wife and that despite the prohibition contained in the Child Marriage Restraint Act (XIX of 1929), the validity of the petitioner's marriage with the detenu is to be determined under the principles of Muslim Law. In these circumstances, it is asserted that it is the-petitioner who is entitled to the custody of the detenu. A reference in this behalf is made to Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 Kar.
442.
10. There is no doubt that if marriage of the petitioner with the detenu could be regarded as an established fact he would be entitled to her custody. In this behalf, it is asserted that no formal proof of marriage is required. It stands established from the claim of the petitioner and the detenu that they are married. It is submitted that for marriage, all that is required is proposal and acceptance in the presence of two witnesses. Even when there are no witnesses present, it is stated in section 254 of Mulla's Muhammadan Law that marriage would be irregular and not void. It is, therefore, argued that the petitioner should be presumed to be married to the detenu.
11. In view of the circumstances of this case, there is no force in this argument. What is asserted in the petition is that the detenu was married to the petitioner when she had not attained puberty. At that time, only her father could have given her in marriage. It was, therefore, not a case of proposal and acceptance between the petitioner and the detenu only. There is no proof of marriage brought on record. In these proceedings,. Evidence of marriage for and against, cannot be recorded, when such enquiry can be made by a Civil Court of competent jurisdiction or by the Court before whom the petitioner's case under section 11 of Ordinance VII of 1979, might to be put up for trial.
12. As already observed above, the detenu being less than 18 years of age, she cannot be set free.
Since there is nothing on record from which I can form an opinion that the detenu was duly married to the petitioner, it is safer to assume, at this stage for the purpose of disposing of this petition, that the detenu is not duly married to the petitioner. In this behalf, a reference may be made to the following observations made by a learned Single Judge of this Court in Shahida Parveen v.
Muhammad Inayat and another PLD 1980 Lah. 14:-- "As the credentials of her husband are the subject-matter of adjudication in a criminal trial, it would not have been proper to hand her over to his custody because that would have foreclosed the point in issue or a determination of it. In the circumstances, the Court could justifiably pass an order directing the handing over of the custody to the father with whom the mother of the petitioner is also residing. I do not consider that the order is lacking in lawful authority or that on the strength of her claim to be of 17 years she can succeed on a mere habeas corpus petition as such."
' This judgment was affirmed in an Intra-Court Appeal. In the appellate judgment in Shahida Parveen v. District Judge, Sialkot and another PLD 1980 Lah. 7, reliance is placed on the following observation made by a Division Bench of Karachi High Court in Ghulam Muhammad v. Fakir Muhammad and another PLD 1975 Kar. 118:-- ' It is only obvious that this case essentially relates to a dispute regarding matrimonial affairs, it must therefore, be laid before the Family Court of relevant jurisdiction, rather than before the High Court in its extraordinary jurisdiction or under section 491, Code of. Criminal Procedure. The allegations regarding wrongful, confinement etc. If true, would also involve offences punishable under the Pakistan Penal Code for which the normal venue is again the ordinary Criminal Court of the relevant jurisdiction. Recently we have held in the case of Imdad Hussain v. Noor Hassan and others (Criminal Miscellaneous Application No, 87 of 1974) that in appropriate cases, the High Court may refuse to exercise its powers under section 491, Cr.P.C. Even if available, if the party can seek relief under the normal remedies provided by the law. We find this to be a fit case in which we would not like to interfere."
12. In the present case also the question of the petitioner's marriage requires determination in a proper forum as indicated in the afore-cited Shahida Parveen's case. 1, therefore, acting under section 491(1)(a) of the Code of Criminal Procedure, direct that the custody of the detenu be handed over to Ghulam Haider, the father of the detenu.