' This judgment shall dispose of Writ Petition No,1216 of 1997, filed by Abdul Ghaffar for the custody of Mst. Allah Moafi whom he claims to be his wife and Criminal Miscellaneous No,6/H of 1997 filed by Sher Muhammad father of Mst. Allah Moafi praying that Nikahnama evidencing his daughter Mst.
Allah Moafi's Nikah with Abdul Ghaffar being not valid in law, he is entitled to her custody as a father.
2. Brief facts giving rise to the aforereferred petitions are that Abdul Ghaffar, petitioner contracted Nikah with Mst. Allah Moafi daughter of Sher Muhammad vide Nikahnama, dated 15-10-1996. Sher Muhammad father of Mst. Allah Moafi got a casc registered vide F.I.R. No, 428, dated 9-12-1996 under section 11, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 and section 380, P.P.C. Police Station Chauchak, District Okara. It was alleged in the F.I.R. That Abdul Ghaffar petitioner and others armed with deadly weapons kidnapped his minor daughter Mst. Allah Moafi and also took away a cash amounting to Rs,11,000 and five Tolas of gold. According to complainant-father, the date of birth of Mst. Allah Moafi was 1-5-1981. During the investigation of the a fore referred case, Mst. Allah Moafi was produced before the Illaqa Magistrate, who on 2-1- 1997 recorded her statement which was to the effect that she had left her parent's house of her own free-will and went to the house of her real sister Mst. Parveen who is sister-in-law (borther's wife) of Abdul Ghaffar, petitioner; that with her help she contracted marriage with Abdul Ghaffar petitioner; that her father wanted to sell her; that she did not want to go to his house and that the case was false. The Illaqa Magistrate on the same day, directed her to be lodged in Darul Aman as the Nikah contracted by her was without the participation of her parents and brother and, therefore, in absence of Wali, the legality of the said Nikah was doubtful.
3. Both the parties are related. Real sister of Mst. Allah Moafi, Mst. Parveen is married to brother of Abdul Ghaffar petitioner and sister of Abdul Ghaffar petitioner is married to brother of Mst. Allah Moafi. However, the relations between both the parties are strained and sisters of Abdul Ghaffar petitioner and Mst. Allah Moafi have left their husbands and are residing at their parent's respective houses. The pregnancy of Mst. Allah Moafi from the said wedlock is not disputed though it is stated on behalf of the father that the Nikah having been entered into by, Mst. Allah Moafi during her minority and without consent of a Wali is not valid in the eyes of law. Efforts were made during the course of proceedings for reconciliation but they were fruitless whereafter both the parties opted to argue the case on merit.
4. Learned counsel appearing on behalf of Sher Muhammad, father in Criminal Miscellaneous No,6/H of 1997 submitted as under:-
(i) that as per birth certificate Annexure "A" Mst. Allah Moafi was born on 1-5-1981 and at the time of marriage, therefore, she was leis than 16 years of age, she could not have contracted marriage. In Islam, the said Nikah would remain under suspension till she attains the age of majority. He further added that under the Child Marriages Restraint Act, 1929 marriage of a female child below 16 years of age is punishable;
(ii) that the marriage without consent of a Wali is not a marriage in the eyes of law;
(iii) that Mst. Allah Moafi was abducted, a case has been registered, she being an accused has to join investigation and the process of the investigation cannot be stifled through the present proceedings; and
(iv) that the statement of an accused can be of no avail and notwithstanding her desire to go with Abdul Ghaffar petitioner, her custody is to be given either to her father or to the police. When asked by this Court as to what would be the status of the unborn child of Mst. Allah Moafi as she is in an advance stage of pregnancy, learned counsel replied that the marriage would be invalid but the child would not be illegitimate.
5. In support of the a fore referred submissions, learned counsel has relied on Mst. Daulan v. Dosa PLD 1956 (W.P.) Lah. 712, Abdul Hameed v. The State PLD 1962 (W.P.) Kar. 886, The State v.
Qamaruddin alias Kamoo PLD 1963 (W.P.) 873, Fateh Sher v. Sarang PLD 1971 Lah. 128, Mst. Maqsooda Begum v. Muhammad Aslam Khan and others PLD 1970 Azad J&K 9, Shaukat Ali v. Altaf Hussain Qureshi and another PLD 1973 Lah. 591, Bachinoo v. Abdul Hakim 1975 PCr.LJ 732; Mst. Zubaida Bibi v.
Incharge, Darul Aman, Lahore PLD 1996 Lah. 339 and Muhammad Khalid Jamshed alias Zafar Iqbal v. Malik Godha PLD 1996 Lah.
462.
6. Learned counsel for Abdul Ghaffar, petitioner in Writ Petition No,1216 of 1997 has made following submissions:--
(i) that Mst. Allah Moafi had attained puberty at the time of her Nikah, and therefore, had become an adult person to contract a valid marriage in Islam. The fact that she is in the 5th month of her pregnancy and the same having not been disputed, confirms that she had attained puberty and the marriage stands consummated.
(ii) that the F.I.R. Was registered after two months of the Nikah and no explanation has been given for the delay;
(iii) that all the witnesses of Nikahnama have supported the Nikah;
(iv) that she appeared before the Illaqa Magistrate and made a statement under section 164, Cr.P.C. To the effect that she was never abducted, and
(v) that she had married Abdul Ghaffar, petitioner of her own free will and would like to go with him as she apprehended danger from her parents.
7. In support of her pleas, she has placed reliance on Mst. Kishwar Zohra v. Guardian Judge, Gujrat and 3 others PLD 1993 Lah. 549, Muhammad Ashiq v. Superintendent of Darul Aman, Lahore and 3 others 1973 PCr.LJ 79, Mauj Ali v. Syed Safdar Hussain Shah and another 1970 PCr.LJ 1035, Mst. Rabia Bibi v. Ziladar Khan and 3 others 1970 PCr.LJ 523, Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049, Mst. Sharman v. Superintendent, Darul Aman and others 1984 PCr.LJ 343, Mst. Bakhshi v.
Bashir Ahmad and another PLD 1970 SC 323.
8. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the Bar. .
9. The precedent case-law to which reference has been made by learned counsel for Sher Muhammad, petitioner is distinguishable. In Mst. Daulan v. Dosa PLD 1956 (W.P.) Lah. 712 it was Mst.
Daulan who had filed a suit seeking cancellation of her marriage on the ground the same had been performed under coercion and she having attained puberty was exercising her right of dissolution. In Abdul Hameed v. The State PLD 1962 (W.P.) Kar. 886, it was a criminal appeal in which the appellant's conviction was maintained on the charge of having abducted a minor and thereafter, for having committed a rape with her. In the State v. Qamaruddin alias Kamoo PLD 1963 (W.P.) Kar. 873 the accused was convicted for having abducted a girl below 14 years of age from the lawful guardianship and the paramount consideration for setting aside the order of acquittal and for convicting the accused was that taking away the minor out of the lawful guardianship stood established for purpose of sexual intercourse. In Mst. Maqsooda Begum v. Muhammad Aslam and others PLD 1970 Azad J&K 9, it was the wife who filed a suit for dissolution of marriage on the ground of exercising of her option of puberty and it was held that where consummation had taken place by force, such consummation does not disentitle the wife to exercise the option of her puberty. In Shaukat Ali v. Altaf Hussain Qureshi and another PLD 1973 Lah. 591, the husband's habeas petition was dismissed as, "it is not yet known if the marriage dissolved was valid and was without- consent of Mst. Najma i,e, the alleged abductee". In Pachinko v. Abdul Hakim 1975 PCr.11 732, the question of the validity of the marriage was in dispute as the alleged abductee was admittedly a minor and below the age of 15 years. In Mst. Zubaida Bibi v. Incharge, Darul Aman, Lahore PLD 1996 Lah. 339, learned Single Bench of this Court did not permit the alleged detenu to go with her paramour and directed her to go with her mother. In Muhammad Khalid Jamshed alias Zafar lqbal v. Malik Goda PLD 1996 Lah. 462 no order for the recovery of the girl from her father's house was made and it was observed that the validity of the marriage could only be determined by the Family Court and that issuing a notice to the father would bring humiliation to him and the petitioner was directed to file a suit for restitution of conjugal rights.
10. In the case in hand, the admitted position is that at the time of marriage the alleged abductee Mst. Allah Moafi was above 15 years of age and the fact that she is now in her fifth month of pregnancy is not disputed. The Investigating Officer, appeared in Court to state that the witnesses of Nikah and the Nikahkhawan have supported her Nikah with Abdul Ghaffar, petitioner. In Islam, an adult can validly contract marriage of her own free will and female is considered to be an adult when she attained puberty. The question of puberty came up for consideration before the Shariat Appellate Bench of the Honorable Supreme Court in Abdul Jabbar v. The State PLD 1991 SC 172 and at page 173, it was held as under:--{{URDU TEXT}} Similarly, in Muhammad Yusuf v. The State PLD 1991 SC 179 similar view was taken. In Khan Zaman v.
The State 1991 PCr.LJ 928 wherein at page 830 it was held as under:- {{URDU TEXT}} ' In Mauj Ali v. Syed Safdar Hussain Shah and another 1970 PCr.LJ 1035, the Honorable Supreme Court upheld the marriage and at page 1036, it was observed as under:-- "it is not disputed that Mst. Mussarrat has attained the age of puberty and she had married with respondent No,1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Civil Marriage Restraint Act and, therefore, it should not have been recognized by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, respondent No,1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband."
' In Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323, the afore-referred view was reiterated and it was observed at page 324 as under:-- "As there is no dispute about the date of birth of Mst. Shamim, she had definitely attained more than 15 years of age before the 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 had attained more than 15 years of age before her marriage, the mother had no more right of custody of the person of the girl."
' The Honorable Federal Shariat Court in yet another judgment Muhammad Imtiaz and another v.
The State PLD 1981 FSC 308, held that an adult Muslim girl can marry without the consent of her Wali.
11. Recently, Full Bench of this Court by majority in (Abdul Waheed v. Asma Jehangir PLD 1997 Lah.
301) Criminal Miscellaneous No,426/H of 1996 (popularly called Saima's case), held that a female adult can contract marriage of her own free will and that the said marriage having been consumed cannot be annulled.
12. As Mst. Allah Moai, in her statement before the Magistrate under section 164, Cr.P.C. And before this Court had unequivocally stated that she has contracted marriage with Abdul Ghaffar and that she is pregnant for the last 5/6 months; as the Nikah Khawan and the witnesses have supported the factum of marriage; as there is evidence on record that she had attained puberty at the time of her marriage and as petitioner Sher Muhammad, appearing in Court on 16-1-1996 did not dispute the Nikah, it is declared that her Nikah with Abdul Ghaffar was valid and that the order of the Magistrate whereby she was sent to Darul Aman was not sustainable in law. Resultantly, Writ Petition No,1216 of 1997 is allowed and Criminal Miscellaneous No,6/H of 1997 is dismissed. Mst. Allah Moafi is allowed to join her husband.