ORDER IJAZ NISAR, J.- The relevant facts are that Syed Farman Ali filed a petition under section 491 Cr.P.C, for the recovery of his minor daughter named Saima. According to him, Saima was born on 20th November, 1978 out of his marriage with Jamila Khatoon. Saima who was a student of 10th class was to appear in the final matriculation examination to be held in March, 1995. Owing to his business pre-occupation he spent his time partly in U.S A. And partly in Pakistan and Saima used to live with her mother Mst Jamila Khatoon and some times with his second were namely, Retera (Christian woman). During his last visit to Pakistan in July, 1993, he learnt through his daughter and her mother that Abid Ali was harassing her (Saima) in various manners on which he contacted Abid Ali and his father. Abid Ali who is 35/40 years of age is a handicapped person, already married three times and was known to be an exploiter of young girls. On coming to know of the reputation of Abid Ali, he in consultation with Mst Jamila Khatoon mother of Saima shifted her to Walton Road, Lahore.
2. On 19th November, 1994 Abid Ali along with two other persons abducted Saima when she was returning from school and took her away. He approached Abid Ali for the restoration of Saima but he put him of on one pretext or the other. According to him his daughter had been removed from his custody through fraud and in an illegal and improper manner. He prayed for the recovery of Saima from the custody of Abid Ali who had already made the lives of many other young girls miserable by taking advantage of the social and legal system.
3. Consequently, Mrs. Farkhanda Iqbal JDSP, Women Police Centre, Ichhra, Lahore was directed to recover and produce Saima, the alleged detenue, before the Court. In compliance with the order, she recovered Saima from the house of Abid Ali respondent and produced her before the Court on 28.11.1994. On a query made from Saima as to whether she wanted to accompany her mother Jamila Khatoon she refused to do so and preferred to stay in Darul Amman till disposal of the case.
Consequently, she was lodged in Darul Amman, Lahore.
4. Since it was asserted on behalf of Abid Ali that Saima who was sui juris having born on 20.11.1978 had solemnized, marriage with him on 21.11.1994, he was asked to produce Muhammad Idrees, Nikah Khawn. He undertook to produce him before the Court and also requested that Nikah Khawn should also be summoned through Court. The request was granted and he was summoned for 5.12.1994 along with the relevant record. On the said day, Abid Ali expressed his inability to produce him stating that he had gone out of station and prayed for another opportunity for his production which was granted. According to him, the other witnesses of the Nikah, namely, Nasim Butt son of Abdul Waheed Butt and Imran-ul-Haq son of Faizan-ul-Haq were, however, present. The proceedings were adjourned to 12th December, 1994 for the production of Nikah Khawn. But on that day too the much awaited Nikah Khawn was not produced. On the other hand, S.I Ahmad Razzaq of P.S. Shad Bagh reported that no due could be found of Muhammad Idrees, Nikah Khawn from Ward No. 26, Wassan Para, Lahore.
5. The statements of Syed Farman Ali, father of Saima, Hafez Ghulam Murtaza, Nikah Registrar Ward Masjid Peeranwali, Wassanpura, Lahore, Abid Ali respondent, Muhammad Hassan Anjum, Ex- father-in-law of Abid Ali respondent, Mst. Jamila Khatoon, mother of Saima, Saima, the alleged detenue, Sumera Hassan and Humera Hassan, daughters of Muhammad Hassan Anjum, the former wives of Abid Ali were recorded.
6. Syed Farman Ali stated that about two years back he had received a call from his son that Saima who was then studying in 8th class, Cathedral School, Lahore would stay out of the house at night and came back in the morning. On his return, Saima told him that Abid Ali respondent used to pay money to Rehana for introducing young girls to him and that he had paid Rs.5,000/- to Rehana to introduce her (Saima) to him. On coming to know of it, he asked his were Jamila Khatoon to keep a strict supervision on her. After sometime, his were told him that Saima used to receive phone calls from Abid Ali. He contacted Abid Ali who offered him money and when he refused to accept it, he threatened him at gun point. According to him, he was accompanied by Nadeem Iqbal and Akhtar Meraj at that time and he assured him to discontinue his connections with Saima but after sometime, he learnt through his were that Abid Ali had not discontinued making calls to her. On his inquiry, Saima told him that Abid Ali used to pass on money to her through one of her class fellows and also used to threaten her. On this, he visited her school and met the Incharge of her class and complained to her about the activities of Saima's class fellow who was intermediary between Saima and Abid Ali. Saima told him that once on receiving a message from Abid Ali to see him after 10 P.M. She had purchased tranquilliser from the market and mixed it in the milk and served to her mother and brothers who after taking the same went to sleep whereafter she went of the house to meet Abid Ali. According to her, Abid Ali had dropped her back at her house at 5 A.M. When Abid Ali did not discontinue his secret meetings with Saima, he changed her school as also her accommodation and shifted her to the house of his second were at Walton Road, Lahore. On 19th November, 1994 when Saima did not return from the school he contacted the father of Abid Ali who told him that he should not worry because his son was sexually unfit to cause any harm to Saima but said that if Abid Ali had performed Nikah with her he would then be helpless.
7. Abid Ali respondent stated that he was a handicapped person since about 15 years. According to him, he was firstly married to Saadia about ll. Years back which marriage lasted for 5 years and 13 days but no issue was born out of the said wedlock. Five years ago he contracted second marriage with Sumera Hassan which lasted about 4 to 5 years but no issue was born out of the said marriage also. About 3 months prior to his marriage with Saima, there was a separation between them as a result of mutual understanding. According to him about two years ago he met Saima in the house of his class fellow named Jasim. Two/three days thereafter he received a phone call from Saima whereafter they started making phone calls to each other for about 2/3 months. In the beginning of 1993, they had the occasion to meet each other and she had accompanied him to the marriage of his friend. According to him, at that time they were unmarried. Later, her father met him and inquired from him whether he wanted to mary his daughter. He replied in the affirmative on which he told him that it would involve give and take and demanded Rs.5 lac from him. After sometime Saira informed him that his parents had shifted her to the house of her Christian mother against her wishes who was persuading her to mary a Christian of advanced age. According to him, he used to exchange phone calls with Saima and she complained to him about the mis- deeds of her parents who would drink in the house. On 21.11.1994, he went to the house of her Christian mother to take her along. Leaving the letter Exh. P A, she accompanied him and solemnized marriage with him.
8. According to him, although neither he nor Saima lived in Wassanpura, Lahore but their marriage ceremony was performed there. He solicited the help of Muhammad Latif, a Clerk of an Advocate on 20.11.1994 who had arranged the Nikah Khawn as also the place of Nikah which took place on 21.11.1994. He admitted that though his parents are alive but none of them participated in the marriage ceremony. He also admitted that neither any near or distant relation of Saima had participated in the Nikah which was performed by Muhammad Idrees, Nikah Khawn. He went on to say that father of Saima was acquiescing in his relationship with Saima. Explaining this, he stated that when he met him in the Race Course Park though he asked him to sever connections with his daughter but did not return the gifts which he had given to her, probably for the reason that they were fairly expensive.
9. In cross-examination, he stated that he did not have any sexual relationship with Saima before marriage, for, he was in love with her. He placed on record photographs P. 1 to PII to show their happy married life. According to him, he had fired three shots in the air to prevent her father and brothers from being forcibly taking away Saima and from entering into his house along with the police. In cross examination he admitted that he did not send a copy of the Talaqnama terminating his marriage with Sumera to the Union Committee concerned and denied the suggestion that his marriage with Sumera was still continuing. According to him Sumera was the sister's daughter of his first were, namely, Rifat Saima, after divorcing whom he contracted marriage with Sumera. He admitted that it was also a love marriage and that none of the family members of Sumera had "joined the marriage ceremony. He admitted his marriage with Sumera's sister, namely, Humera but stated that there was a conspiracy behind it which was hatched by her parents and that Sumera had agreed to mary him on account of the bad character of her elder sister Humera. According to him, he had gone to the District courts in search of Nikah Khawan or another person who could arrange Nikah Khawan. He could not say who had arranged Nikah perts.
According to him, various columns of Nikah Nama were filled by Muhammad Latif and that he taken the persons mentioned in the Nikah Nama along with him. The Nikah forms were filled in at the house of Muhammad Latif. He did not personally know the Nikah Khawn. Muhammad Latif had brought him, he added. He admitted that Mst. Saima was minor when he was maintaining love affair with her and used to meet her and that it was decided during her minority that on coming of age they would solemnize marriage with each other. He admitted to have given presents to her before marriage and to have taken her to the marriage functions of his friend without the permission of her parents.
10. Learned counsel for Abid Ali pointed out that on account of cross- examination being made to his client a serious prejudice may ultimately be caused to his client in case a criminal case of abduction, kidnapping or any other offence was registered against him, for, his statement before this Court may be considered as a confession in the subsequent proceedings, learned counsel for Syed Farman Ali petitioner stated that the questions put to him were relevant because a probe was being made by the Court into the legality/validity of marriage between Abid Ali and Saima in the were of allegations levelled by Syed Farman Ali that no valid marriage had been solemnized between the parties and that his daughter was being blackmailed. The objection was over-ruled and it was observed that the Court would go into the validity of marriage between Abid Ali and Saima in view of the allegations levelled by Saima's father.
11. Abid Ali denied the suggestion that he had been taking obscene photographs of Saima and took her signatures on various documents to blackmail her. He also denied the suggestion that he was not in a position to give the particulars of Nikah Khawn because in fact no Nikah had been performed between him and Mst. Saima. He also denied the suggestion that he had deceived Mst.
Saima and brought her to his house to cover the crime and stage a drama of performance of Nikah with her. According to him, the Nikah was performed in a car in front of the house of Muhammad Latif in the street due to his disability.
12. Mst. Saima in her statement before the Court stated that she started love affair with Abid Ali two years back. She had decided to mary Abid Ali while she was living in the house of her mother in Krishan Nagar. Her father used to do her brain-washing by telling her that it was not bad to mary a Christian as he had himself done so. She had told Abid Ali about her desire to mary him. Abid Ali replied that she should think over it seriously because he had already contracted two marriages.
Even on coming to know of it she expressed her willingness to mary him. He promised that he would do so as soon as she would come of age. She attained the age of 16 years on 20th November, 1994. Taking her birth certificate from her house, she left at 6.45 A.M. On 21.11.1994 and on the same day solemnized marriage with Abid Ali at Wassanpura, Lahore. According to her she had solemnized Nikah with Abid Ali of her on free will and there was no pressure on her from any quarter. She expressed the desire of accompanying Abid Ali who was present in Court. In the cross- examination, she stated that she used to exchange love matters on phone with Abid Ali when she was studying in 8th class. According to her, she had been suppressing it from her parents and brothers. According to her, Abid Ali had given her presents so -that she should look nice at the function attended by them. Since they love each other, she did not consider any harm in accepting the presents from him which she had received in the beginning of 1993. She admitted that she had accompanied Abid Ali to the Valima ceremony of Akhtar without the permission of her parents and had returned from there at about 11.10 P.M. According to her, they used to have love dialogues with each other within the limits of decency.
13. According to him, it was decided before hand that she would leave the house of her father at 6.30 A.M. And the entire programme had been finalized, before hand and that Abid Ali had come to take her from the arranged place from near her father's house. She stated that Nikah Khawn had not enquired from her whether she had appointed any wali. She admitted that none of the witnesses of Nikah was related to her. She expressed her inability to give the name of her Vakeel or of the witnesses of the Nikahnama. She could only give the name of Imran-ul-Haq, of the witnesses of the marriage. She admitted that letter Exh. P A was in her handwriting and was left by her at the dining table of her father's house. The second witness of Nikah according to her was Nasim Butt son of Abdul Waheed Butt. According to her, she had attained puberty before the Nikah ceremony. She denied having been abducted, kidnapped or enticed away by anyone for entering into marriage with Abid Ali. According to her, Abid Ali was a pious, noble and perfect gentleman and it was for these qualities that she had decided to mary him. They did not have any sexual relationship with each other before marriage, she maintained.
14. Hafiz Ghulam Murtaza, Nikah Registrar, Ward No.26, WaSsanpura, Lahore deposed that on 21st November, 1994 Muhammad Latif his Mohallah Dar delivered for Perts of Nikahnama to him showing the performance of Nikah between Abid Ali and Saima. After completing the necessary formalities he registered the Nikah. According to him, he did not know Muhammad Idrees the Nikah Khawn. He admitted that he did not personally know the bride, bridegroom or any of the witnesses mentioned in the Nikah Nama.
15. Mst. Sumera Hassan stated that she was married to Abid Ali on 6.1.1990 and was still his were and had not been divorced by him and the divorce deed Exh. P.C. Was shown to her for the first time in the Court. Her sister Humera Hassan also appeared and stated that Abid Ali had first married her Khata who divorced by him. Whereafter her marriage took place with Abid Ali in the year 1989. A month and half after the marriage, she was divorced, whereafter the marriage of her sister Sumera took place with Abid Ali. She stated that she had been threatened by Abid Ali to mary him and also coerced to become addict. She further stated that being a handicapped person, Abid Ali was not in a position to even attend to the call of nature and he had employed a servant for that purpose.
16. Mr. Rafiq Ahmed Bajwa, learned counsel for Syed Farman Ali, the father of Saima stated that in Islam the concept and purpose of marriage is procreation and not the satisfaction of sexual lust and an Islamic country does not recognize a sex-free society and adultery is not allowed under any circumstance. Basing his argument on the Teachings of the Holy Qur'an and Sunnah, he stated that marriage in Islam has to be performed in accordance with the injunctions of Almighty Allah and Sunnah. Quoting Hadith (Sayings) of the Holy Prophet (peace be upon him) he stated that marriage is a sacred contract in which a man and a woman enter into by mutual agreement. It serves a double purpose, being the means of moral uplift of man and the means of the multiplications of the human face. It must be publicly proclaimed and held in a public place and a woman must be given in marriage by her guardian.
17. According to the learned counsel, Saima was not mi juris when she is alleged to have solemnized marriage with Abid Ali. Explaining the term, "sui juris", he stated that he is the one who is capable of understanding the nature and effect of the transactions made by him or has the capacity to manage his affairs independently. According to him, the material on record does not show that the circumstances under which Saima was placed, she was capable of taking independent decisions or understanding the nature and effect of her transactions. Learned counsel states that Islam forbids.
18. Mr. RA. Awan counsel for Abid Ali respondent states that after having attained the age of sixteen years, Saima was legally competent to contract marriage and Nikah between the parties was validly performed and when the spouses admit that they are husband and were, non-production of Nikah Khawn would not affect the validity of Nikah. If there has been any violation of the rules framed under the Muslim Family Laws Ordinance, 1961, it may entail punishment but would not invalidate the marriage. He adds that in a summary inquiry like this, the question of legality of marriage should not be gone into and in deference to the wishes of Saima she should be allowed to accompany her husband.
19. The manner and form in which a marriage is to be solemnized is unambiguously decreed in Islam. The particular characteristic of Nikah is that is performed publicly in the presence of witnesses and Ijab-o-Kabool has to be ascertained by the Nikah Khawn and brought to the notice of all present for their information. The girl whose hand is to be given in marriage should be major and ordinarily her marriage to be conducted by her guardian or Vakeel, appointed by her for that purpose.
20. The Nikah, Islam lays down, should be performed in the presence of witnesses so that it attains distinction from an act performed without witnesses in secret. It looses its sanctity, if performed in a secret manner. The Muslim Family Laws Ordinance clearly prescribed the method of registering the Nikah. The violation of these procedures attract punitive action. Under Section 6 of the Muslim Family Laws Ordinance, 1961, polygamy is prohibited. The violation of it carries punishment of imprisonment upto one year.
21. In the case under review, admittedly the parents or relatives of the bride or bridegroom did not participate in the Nikah ceremony. Neither the Nikah Khawn nor wali of the bride appeared. On the contrary, Saima stated that she did not even know who was her Vakil.
22. As the tale of this so called matrimonial relationship goes the affair started when Saima was studying in the 8th class and had not yet even become legally eligible to contract Marriage of her on. She was led dubiously by Abid Ali to mary him. He used to take her out on outings and function and presented her expensive gifts to entice and win her over. He used to have secret meetings with her far away from the residence of her parents. Despite the efforts made by the parents of Saima to dissuade her from meeting Abid Ali she continued to. Have meetings with him alone with help of other women and acquaintances. Abid Ali also used to establish contacts with her On telephone.
On the day of his alleged marriage, he picked her up from home early in the morning and advised her to leave a note behind addressed to her father stating that she was leaving the home of her on free will. It appears that it was a measure designed simply to serve as his defence against the charge of abduction. All along the period she had been under the influence of Abid Ali who had hood-winked and fed her on false promises despite having the full knowledge that she was then still a minor. He did not wait even for a single day after she attained the age of 16 years to mary her.
According to Saima, Abid picked her up at about 6-30 A.M. From near her house and proceeded straight to the District Courts where he got the Nikah Khawn arranged through Muhammad Latif a Clerk of a Lawyer. Even that Nikah Khawn could not be produced before the Court. The place where the Nikah had been reportedly performed was neither the residence of the bride nor of the bridegroom. It was performed in a car parked in Wassanpura. The photographs which Abid Ali produced included the one in which he was being shaved by Saima. All this was a measure to subsequently establish the belief of intense love which Saima had for him.
His previous wives who appeared before the Court were highly critical of his past, moral character and conduct as well as behaviour.
23. Without going into the details, I leave it to the Family Court to deal with this and other aspects of the case in an appropriate manner and according to law. It has been suggested that criminal prosecution of Abid Ali be ordered but I do not want to go in this matter myself. The question whether it was a case of kidnapping or obdurate should be disposed of by the competent Court if moved, by any person.
24. I feel that Saima is still under the influence of Abid Ali as she had been made to live on false promises. She has been made to believe that her life would not be safe in the hands of her parents.
A daughter cannot be more safe or. Secure in the hands of an outsider than her parents. Saima who is still in her teens, needs parental care, love, affection, guidance and their were counsel. She was made to leave her home in the hope of enjoying a glamorous life!. She appears to have been so much hypnotized by Abid Ali that she thinks that her future would be safe in his hands rather than in the hands of her parents.
25. Saima has failed to establish that the was sui juris capable of taking independent decisions.
According to Mr. Rafiq Ahmed Bajwa, Advocate one may be legally entitled to be given over in marriage but still she may be incapable of taking independent decisions. So far as this case is concerned, the circumstances that she was allured to mary a person who was not only physically handicapped but also had married thrice before and had been having an affair with her when she was still a student of 8th class during the .Subsistence of his marriage, secretly giving her expensive presents show that she was under the immense influence of Abid Ali, mentally immature to take independent decisions.
26. Islam gives the right to all individuals to act according to their will but not under the influence or fear or temptations. An act like Nikah is not possible without parents/Wali or Vakeel or reliable witnesses. The circumstances under which the Nikah of Saima with Abid Ali was performed, particularly non-production of the Nikah Khawn cast a serious doubt on its genuineness.
27. Under the well established law of the Code of Morality of this country the afore stated conduct of a girl is looked upon by our society with great disapproval and resentment as it brings humiliation incapable of being explained to the parents, higher or low, educated or uneducated living in any part of the country.
28. The courts do not function in vacuum and must take due notice of social and moral environments prevailing in society since Abid Ali has shown reckless disregard for the Code Morality he cannot be shown any indulgence. In this view of the matter I consider that the custody of Saima should be given to her parents. Under the circumstances of this case it would not be just, proper or fair or in her on interest or welfare morally or otherwise to let her remain with her so- called husband.
29. No doubt, normally the husband is the lawful guardian of his were but in the present case it is not yet known if the marriage itself was valid and was with the free consent of Saima. The true position in this respect will emerge investigation or at the trial before the competent forum. It is said that law is blind and the courts while following the law should not care for the consequences but I do not feel inclined to subscribe to this view. The law itself takes into account the question of honour and accepts normal human reactions as factors that must be given consideration. The norms and social values of our society have to be kept in view while considering such matters.
30. In the present application under Sec. 491 Cr.P.C. I think, I should not hold any detailed inquiry or record any conclusive finding because these proceedings are generally of a summary character.
The Family Court will be the proper forum to decide the question of legality/validity of the marriage.
For the present I think I can safely proceed on the tentative view that Saima was incapable of understanding the nature and effect of the transactions made by her or had the capacity to manage her affairs independently.
31. In the result, I accept the petition and restore the custody of Saima to her father. The parties feeling aggrieved may have recourse to the Family Court or any other Court of competent jurisdiction for the redress of their grievances. Necessary police assistance may be provided to Syed Farman Ali for the safe custody of his daughter to his house.
32. I am handing over the custody of Saima to her father because he is her natural and legal guardian and the custody of the guardian is always considered legal and proper. In case, her custody is given to Abid Ali, I shudder to think if ultimately he fails to secure a verdict in his favour from the Family Court how would this period of their remaining together would be justified on the annals of law.
In Shah Din and others vs. The State (PLD 1984 Lahore 137) I had cautioned the Nikah Registrars that they should not simply fill in the columns of Mka-/i-namas in routine but realise that the duty they were required to perform was very sacred because rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights flow from a valid marriage. They were required to demonstrate sense of responsibility before authenticating Nikah by making proper inquiries as to the competency of the parties to understand the nature of their acts, their ages and whether or not they were acting of their free will and without any compulsion but in the present case Hafiz Ghulam Murtaza, Nikah Registrar, Ward No. 26, Masjid Piranwali, Wassanpura, Lahore did not care to comply with the above requirements of law. He even failed to obtain the attestation of the witnesses of Nikah and spouses, in his presence, although it was allegedly performed within his territorial jurisdiction. The Nikah register which he produced before the court was also not properly maintained. He also did not appear to be well conversant with the rules framed under the Muslim Family Laws Ordinance, 1961, on the subject of marriage. In this view of the matter the Union Committee concerned/Collector, Lahore is directed to examine the question as to whether he is a fit and proper person to act as Nikah Registrar.
33. I acknowledge and appreciate the labour put in by the learned counsel for the parties in presenting their view points before the Court. I also appreciate the efforts of the Women police, particularly Mrs. Farkhanda Iqbal, D.S.P, who had complied with the orders of the Court in letter and spirit and recovered the alleged detenue (Sauna) in Very difficult circumstances by even risking her life on account of the firing allegedly made by Abid AH respondent for which, I am told, a case stands already registered against him.