1. M. R. KHAN, J.-This appeal by special leave, at the instance of Mst. Bakhshi, is directed against the order of a learned Single Judge of the High Court of West Pakistan, Lahore, whereby he granted an application for habeas corpus under section 491 of the Code of Criminal Procedure and set the appellant's daughter Mst. Shamim alias Nasreen, the detenu at liberty.
2. The facts giving rise to the filing of the application for habeas corpus were as follows :- Mst. Shamim alias Nasreen is the daughter of the appellant Mst. Bakhshi by her first husband Muhammad Shafi. She was born at Lahore on the 22nd July 1954. There is no dispute about the date of her birth. Shortly after the birth of Mst. Shamim, her father Muhammad Shafi died. Mst.
3. Bakhshi then re-married one Ibrahim, a stranger. After Mst. Shamim came of age, she married Bashir Ahmad, the first respondent on the 17th September 1969. Their marriage was duly, registered under the Muslim Family Laws Ordinance in union Council No. 170, District A copy of the registered Nikahnama was produced in this case as annexure A. Having married Bashir. Mst. Shamim went to his outlive with him as his wife, Meanwhile her mother lodged an F. I. R. On the 5th September 1969, against Bashir for kidnapping Mst Shamim. The girl was medically examined on the 19th September 1969, and the doctor gave the opinion that she was aged between 16 and 17 years. Subsequently, the police recovered Mst. Shamim from the house of one Nur Muhammad where she had been kept by Bashir. She was thereafter handed over to Ibrahim, the second husband of the girl's mother.
4. Bashir then made at application to the High Court under section 491 of the Code of Criminal Procedure for securing the release of Mst. Shamim from the unlawful custody of Ibrahim. In that application Ibrahim alone was made a party, but the girl's mother was not Mst. Shamim was brought before the Court where she made the following statement :- "Shafi Muhammad was my father. He died about 14 years ago. About four or five years thereafter my mother re-marries Ibrahim, respondent, and I lived with him. About two or three months ago, I married Bashir of my own free will. My nikah was duly registered. After my marriage with Bashir, Ibrahim got a case registered against him about my abduction, I was recovered by the police from the Dhari of one Noor Muhammad in Chak No. 228. I was kept there by Bashir Ahmad, petitioner.
5. The police handed me over to Ibrahim. I was forced to live in the house of Ibrahim against my will. I am the wife of Bashir Ahmad and want to live with him. I do not want to go back to my mother."
6. The learned counsel representing Ibrahim in the habeas corpus application was given on opportunity put questions to the girl, but no question was put to her.
7. It is abundantly clear from the statement of the girl that she, of her free will, married Bashir and wants to live with him, but is unwilling to go back to her mother or to her mother's second husband Ibrahim.
8. As there is no dispute about the date of birth of Mst. Shamim she had definitely attained than 15 years of age before her marriage with Bashir Ahmad on the 17th of September 1969. According to the Muslim Personal law, a girl professing Islam who has attained the age of 15 years shall be presumed to have attained puberty. As the girl bad attained more than 15 years of age before her marriage, the mother had no more right of custody of the person of the girl. In fact, the mother, on account of her having married a stranger, namely, Ibrahim, lost her right of custody of the person of Mst. Shamim under the Muslim Personal Law.
9. The registered nikahnama apparently shoes s that she was married to Bashir Ahmad on the 17th November 1969. The solemnisation of this marriage on the said date was rather in a way admitted in ground No (a) of the petition for special leave. However, the mother, namely, Mst, Bakhshi lost her right of custody of the girl after the latter attained puberty --particular because the mother married a second husband who was a stranger. -"- It was contended by the learned counsel for the appellant that although the mother may not have the custody of Mst. Shamim under the Muslim Persona: Law, the girl being under the age of 16 years-was, in view of the Child Marriage Restraint Act of 1929, incompetent to contract a marriage.
10. It is true that the said Act does not permit the marriage of a girl below the age of 16 years, but if an girl below the age of 16 years marries in violation of that law, the marriage itself does not become invalid on that score, although a adult husband contracting the marriage or the persons who have solemnized the marriage maybe held criminally liable.
11. It was next contended by the learned counsel that, save as otherwise provided by any enactment for the time being in force, matters relating to marriage, dower, divorce, guardianship, minority etc., in view of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, are to be regulated by the Muslim Personal Law in cases where the parties are Muslims. Having laid this premises, the learned counsel drew our attention to the Majority Act and the Guardians and Wards Act and contended that Mst. Shamim being still a minor, a guardian for her may be appointed under the Guardians and, Wards Act until she attains the age of 18 years. The reference to these enactments is not relevant here inasmuch as no guardian of Mst. Shamim has been appointed under the Guardian and Wards Act.
12. The last contention of the learned counsel was that Mst. Shamim was handed over to her mother under the orders of a Magistrate and as such, the mother's custody was not illegal and the learned Judge of the High Court was not, therefore, right in setting the girl at liberty. The order alleged to have been made by the Magistrate with regard to the handing over of the girl to her mother is not on the record. On the contrary, Mst. Shamim made the statement that she had been handed over to her mother's husband Ibrahim by the Police. However, the fact remains that the mother, for the reasons alreadystated ceased to be the lawful guardian of the person of thegirl.The girl herself made a categorical statement in Court that she was keen to go with Bashir Ahmad whom she had married and .Was unwilling too back to her mother. In view of these 'facts it cannot be said that the learned Judge of the High Court erred in setting Mst. Shamim at liberty and permitting her to go wherever she liked.
13. There is no merit in this appeal. The appeal is, accordingly, dismissed. We would, however, observe that the remarks, if any, made by the High Court or by us in this case shall have no effect on the criminal case for kidnapping started on the F. I. R. Lodged by the appellant.