' Brief facts leading to this writ petition are that case F.I.R. No,162 for the offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against respondent No,5 wherein it was alleged that he had abducted Mst. Mubin Kausar, niece of the complainant.
Mst. Mubin Kausar was produced on 28-12-1995 before my learned brother Tassaduq Hussain Jilani, J. She was directed to be lodged in Dar-ul-Aman meanwhile and be produced on 3-1-1996.
She was produced accordingly but since the learned counsel for the parties submitted that efforts were being made to settle the dispute, the alleged detenue Mst. Mubin Kausar was again sent to Dar-ul-Aman and was directed to be produced today. She is present.
2. Learned counsel for the petitioner submits that Mubin Kausar was forcibly abducted by respondent No,5 and therefore, under these circumstances any Nikah of Mubin Kausar with him was of no legal consequence. He further submits that to hand over Mubin Kausar to respondent No,5 or to set her at liberty will mean to allow her to accompany her paramour. He has placed reliance on following judgments:--
(1) Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398,
(2) Shah Din and others v. The State PLD 1984 Lah. 137,
(3) Syed Farman Ali v. Abid Ali and others PLD 1995 Lah.
364.
3. In Shaukat Ali's case the detente was not produced before the High Court and so it was unable to ascertain the correct position regarding her marriage with the petitioner of that case and this ground amongst others persuaded the Honorable Supreme Court to dismiss the petition meant to restore the custody of alleged detente.
4. In Shah Din's case the bail application was filed which was allowed in view of the fact that the alleged abductee in that case was sui juris and the allegation that she was forced to solemnize Nikah was yet to be looked into. However, the learned Judge deemed it proper to mention that in such cases it was the duty of Nikah Registrar, appointed under Muslim Family Laws Ordinance, 1961 to demonstrate more sense of responsibility before authenticating the Nikah by making proper inquiries as to the competency of the parties to understand the nature of their act.
5. In Syed Farman Ali's case the learned Judge was of the opinion that the alleged abductee Mst.
Saima was neither capable to understand the nature and effect of the transactions made by her nor had the capacity to manage her affairs independently.
6. Learned counsel for the respondents on the other hand has relied upon the following case-law:- -
(1) Mst. Bushra Bibi v. S.H.O. 1995 PCr.LJ 401,
(2) Mst. Razia Bibi v. Station House Officer, Gunjial, Tehsil and District Khushab and 2 others 1995 PCr.LJ 797,
(3) Mst. Waziran and others v. Superintendent of Police, Bhakkar and others 1995 PCr.LJ 996,
(4) Mst. Samina Ali v. Station House Officer PLD 1995 Lah. 629,
(5) Mst. Aziz Mai v. S.H.O., Police Station Jalalpur Pirwala, District Multan and another PLD 1977 Lah.
432.
7. In Mst. Aziz Mai's case it was observed as follows:-- "Learned counsel for the complainant argued that the marriage was void as the appellant was not competent to enter into such an agreement. He next contended that the Intra-Court appeal is incompetent. We have heard lengthy arguments and are unable to agree with the submissions made. In paragraph 251 of Chapter XIV of the Principles of Mahomedan Law by D.F. MuIla, 1975 Eidtion, it is mentioned that 'every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage'. In the explanation it is mentioned puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. It cannot be argued with success that the girl had not attained the age of puberty. Even according to learned counsel for the complainant the age of the girl as per birth certificate at the time of abduction was fourteen years and some months. Furthermore, the girl is pregnant for the last 6/7 months. The fact has not been denied by learned counsel for the respondent. In these circumstances, we are of the view that the appellant had attained the age of puberty when she entered into the marriage contract with Ghulam Farid.
Learned counsel for the complainant cited Allah Diwaya v. Mst. Kammon Mai PLD 1957 Lah. 651 and Mst. Atika Begum v. Muhammad Ibrahim Rashid Nawab 361 C 20 in support of his contention. In the latter case the criteria laid down by the Judicial Committee is that the girl attains majority on happening of either of the two events, namely, the completion of 15 years or attainment of a state of puberty at an earlier period, which obviously means the first menstruation."
' In Mst. Razia Bibi's case, the learned Judge made the following observations:-- "As already observed, it is an admitted fact that the petitioner is sui juris and contracted marriage of her own accord and free will on 4-6-1994 which has been confirmed by her in statement recorded by the learned Magistrate Section 30, on 16-6-1994 and even today in this Court, the petitioner confirmed her stand in the presence of her father. As the case was cancelled after proper inquiry on 12-8-1994, further investigation to probe into the authenticity of Nikahnama in spite of oath taken on Holy Qur'an by seven witnesses of Nikah voluntarily is nothing but abuse of process of law and humiliation of spouses. It is now well-settled law that proceedings under Article 199 of the Islamic Republic of Pakistan will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reason and the sections of the Police Officers are in no case sacrosanct so as to exclude from judicial scrutiny. According to Muhammadan Law marriage is not sacra met but is a civil contract and every Muslim of sound mind who has attained puberty is entitled to enter into a contract of marriage and is at liberty to marry any one he or she likes and the guardian has no right to interfere. According to Article 35 of the Constitution it is the duty of the State to safeguard the fundamental right of marriage.
' I am constrained to observe that such marriage without the consent of parents particularly by young girl may be against the family tradition and moral values but has the sanction of law and such spouses cannot be deprived of valid legal valuable right, because of above consideration."
' In Mst. Bushra Bibi's case it was observed as under:-- "From the above, it is, thus, established that the age of Mst. Bushra Bibi, petitioner, at the time of Nikah was not less than 15 years. Reliance can also be placed on the case of Tahir v. The State 1990 PCr.LJ 1198 for a view that X-ray report is preferable against school certificate regarding age.
According to Muhammadan Law, the age of puberty is even taken to be 15 years and below for the purposes of puberty. Mst. Bushra has admittedly entered into marriage with Syed Muhammad Asif Iqbal five months prior to lodging of the F.I.R. Further according to Article 35 of the Constitution of Islamic Republic of Pakistan, it is the duty of the State to safeguard the fundamental right of marriage. In the case of Adamjee Insurance Company Limited v. Assistant Director 1989 PCr.LJ 1921 it was observed by their Lordships of the Supreme Court that proceeding under Article 199 of the Constitution will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons."
' In Mst. Waziran's case the learned Judge suspended the investigation of F.I.R. Till such time the controversy was finally resolved by the learned Family Judge.
' In Samina Ali's case it was observed:-- "For all purposes provisions may be interpreted in favor of a woman who is actually kidnapped, abducted or induced to compel for marriage against her will or will be compelled and in this way the wrong done to her shall be redressed in terms of provision of this section but these in no case can be interpreted against a woman who is sui juris and for all purposes can enter into contract of marriage out of her sweet will, choice and consent. Any such contract of marriage, howsoever to the detriments, of blood relations is a secret document and has to be given due consideration after. Its bona fides are proved. No investigating agency can flout the same and use the registration of case as a whip against the marital spouses to avenge the vengeance of annoyed relatives and flout the sacred institution of marriage against the Injunctions of Holy Qur'an which gives great emphasis to the reunion of marital spouses."
8. There is no denying the fact that Islam has permitted a woman to enter into a contract of marriage with her free consent if she was major. A minor girl given in marriage by her guardian can also repudiate the same on attaining majority. This right is technically called an option of puberty {{URDU TEXT}}It is excruciatingly painful that the womenfolk in our country are being deliberately deprived of this right which was bestowed upon them about 1400 years ago mainly for the reason that by and large they were not of independent means.
9. In this case the statement of Mst. Mubin Kausar was recorded. She while making the statement did not shilly-shally but was firm to express that she wanted to accompany Muhammad Afzal and that she apprehended danger at the hands of her parents. She also stated that when she was directed by the Court to sit with her parents to have a talk with them, they used physical force to drag her and to take her along with them.
10. The _Qui.' Anic vers 34 of Sura An-Nisa starts with {{URDUN TEXT}} " and in Tafhim-ul-Qur'an (Vol. I at page 349, as under:- {{URDU TEXT}}-
11. In some cases when the custody of a woman was given to her parents/close relatives or she was released on bail when the surety was a Mahram {{URDU TEXT}}she was mercilessly murdered by them although the presumption was that being {{URDU TEXT}} they would be in a better position to protect her life. Perhaps they committed that heinous act because they were pathological egocentric which phenomenon is not rare in a male hegemonic society in which we live.
12. The life of a person is the most sacred thing on the earth. If from the surrounding circumstance, the Court believes that a major girl whose custody I was to be decided might be killed by the parents or other close relatives, if handed over to them, then it was better to set her at liberty.
13. Learned counsel for the petitioner submits that he does not press the other reliefs detailed in this writ petition.
14. For the foregoing reasons I am not inclined to hand over her custody to her parents who are present in the Court and instead set her at liberty so that she C may not face any situation endangering her life because there is sufficient material on the record to presume so.