' Through this habeas corpus petition, the petitioner sought recovery of his wife Mst. Farzana Bibi from the custody of the respondent.
2. Pursuant to an order of this Court, the alleged detenue was produced by her father (respondent No,6) and her two statements, dated 29-8-1995 and 30-8-1995 were recorded. She stated that she contracted Nikah with the petitioner (Abdul Karim) on 25-3-1995; the marriage was attended, according to her, by her brother, mother and father; that after the Nikah, she joined her husband and remained with him for three months that she is in the family way for the last 2/3 months, and that when she came to her father's house, she was detained there. She expressed desire that she wanted to go with her husband i,e, the petitioner. The mother of the alleged detenue confirmed the afore-referred position and requested that Mst. Farzana, the alleged detenue, be allowed to join her husband. The father of the detenue who is respondent No,6 in this petition did not deny the factum of marriage but stated that the Nikah has been performed against his wishes and therefore, he would oppose the custody being given to the petitioner.
3. The learned counsel for the petitioner submitted that the alleged detenue Mst. Farzana Bibi has already attained puberty, that under th'e Islamic Law she is competent to marry and that the factum of marriage has not been denied even by her father. In these circumstances, he contended that it would be in the interest of justice and mutual harmony between the spouses if petitioner's wife Mst. Farzana (the alleged detenue) is allowed to join the petitioner which is also the desire of her real mother. He also referred to a judgment of the Honourable Supreme Court reported as Mauj Ali v. Safdar Hussain 1970 PCr.LJ 1035 wherein the order of the High Court was upheld and a girl of sixteen years of age was allowed to go with her husband against the wishes of her father. Similarly in Barkat All v. Incharge Highway Rest House 1993 M LD 1738, a girl of about fourteen years of age was allowed to go with her paternal-grandmother as per her own wishes. Mst. Zarina Bibi v. District Magistrate PLD 1978 Kar. 374 (a D.B. Judgment), it was observed that a Muslim girl attaining puberty can contract marriage and she was allowed to go with her husband. In Mst. Bakhshi v.
Bashir Ahmad PLD 1970 SC 323, the order of the High Court was upheld where a girl of fifteen years was allowed to go with her husband.
4. The learned counsel for the respondent, on the other hand, has opposed the prayer and has submitted that the alleged detenue is a minor; that the right of Hizanat vests with the father and the petitioner has no right to claim her custody even if he is her husband. He relied on the following judgments:--
(i) Muhammad Anwar Shahzad v. Muhammad Ismail 1982 PCr.LJ 133.
(ii) Hazoor Bakhsh v. Allah Daad 1989 PCr.LJ 1758.
(iii) Abdul Majid v. The S.H.O. 1987 SCM R 282.
5. I have heard the learned counsel for the parties and have also gone through the precedent case-law which have been referred to by both the sides.
6. In Muhammad Anwar Shahzad v. Muhammad Ismail 1982 PCr.LJ 133 the petitioner, in that case, who claimed to be the husband of the alleged minor was refused custody on the ground that "the case is not of illegal detention as the detenue was in the house of her parents who have a legal right to retain her custody. There is a further factor which merits consideration and that is in regard to the petitioner having divorced the detenue".
' In.Hazoor Bakhsh v. Allah Daad 1989 PCr.LJ 1758 the custody of a girl aged fourteen years was given to her father as a criminal case had already been registered for abduction and, therefore, "if during trial or any other proceedings civil or criminal arising out of the entire episode it was found that the detenue was forcibly abducted and that her consent was no consent either on account of tender age or coercion or fraud and that. Nikah was void, stay of detenue with the alleged husband/abductor and their sexual intercourse not only would be rendered illegal but also might involve serious consequences of a finding relating to Zina of one or the other type".
' In Abdul Majid v. The S.H.O. 1987 SCM R 282 the petitioner, in that case, who claimed to be the husband of the alleged detenue aged fifteen years was refused her custody as a case under sections 10 and 11, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 had already been registered against the petitioner at the instance of her father.
6. The facts in the instant case are distinguishable. The factum of Nikah with the petitioner has not only been confirmed by the mother of Mst. Farzana, the alleged detenue, but has not even been denied by her father. During Nikah, admittedly, brother, mother and according to the alleged detenue her father was also present. Her father appearing in Court has not even alleged that her daughter (the alleged detenue) was ever kidnapped by the petitioner. The apprehension expressed by Mst. Farzana (the alleged detenue) that she might be sold away by her father, the fact that she remained with the petitioner (her husband) for three months and that she is in a family way for the last two/three months would also weigh with this Court while deciding the question of custody.
7. For what has been discussed above, I am inclined to allow this petition and permit Mst. Farzana Bibi, the alleged detenue in this case, to join the petitioner (her husband). Disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.