' The writ _petition was disposed of on 5-6-1996 by short order to the effect that the police shall not cause harassm ent to the petitioners. The reasons in support of the short order are detailed below.
2. The relevant facts which led to the filing of this Constitutional petition are that Mst.Sajida Bibi and Muhammad Ramzan are first cousins inter se. The former is the daughter of latter's maternal uncle.
She claimed herself to be 18 years of age. She was present in Court and by appearance she looks to be of that age. Both of them have contracted marriage without parents' consent. The father of the girl being not happy with this marriage approached the respondent police officer to put pressure on the husband to divorce his wife. It is alleged that the local police is causing harassm ent and interference in the marital life of the couple for the ulterior purpose of obtaining the divorce despite the fact that no criminal case stands registered at the police station against the spouses.
3. Mst. Sajida Bibi and Muhammad Ramzan appeared in Court on 5-6-1996. They stated before me that they had contracted marriage with their mutual and free consent on 16-4-1996 and since then both of them had been living together as a married couple. In these circumstances, when the marriage between a major Muslim woman with a major Muslim man has taken place and consummated, then every effort should be made to protect the marriage, because such is the command enshrined in Article 35 of the Constitution of Pakistan which reads as under:-- "Protection of family etc. --The State shall protect the marriage, the family, the mother and the child."
4 Major and sane persons, both male and female have the right to contract marriage with their own free-will. When a marriage is contracted by a woman without the consent of her parents, it is often seen that effort is made by her parents to undo the marriage. In most of the cases this is done on account of the tribal customs or social taboos or on account of barbarism. However, such considerations have to yield to the constitutional commands, law and the Islamic Injunctions. The divorce obtained through coercion or the recovery of the girl secured otherwise by the parents in most of the cases results in very awful situation. As a result of the consummatioft of marriage, except in rare cases, the wife conceives and the parents of the girl in the first instance try to kill the still born child in the womb of the mother through abortion. If such efforts fail and the child is born, it leads to still more serious consequences. First, the legitimacy of the child is called in question and secondly, the responsibility to bring up the child is not shared by the parents of the mother and thirdly, she is compelled to marry elsewhere against her wishes. In this the poor lady is put to immense mental torture and herself is shattered. However, it is heartening to note that these social taboos are gradually loosening their grip on the society, partly on account of religious education by the learned Ulemas and partly due to the awakening through print and electronic media.
International exposure of a large number of people of Pakistan through travelling abroad is also making contribution in that behalf.
5 So far as the State functionaries are concerned, it is their bounden duty to follow the Constitution and the law. As stated above, the Constitutional command is that the marriage and the family have to be protected by the State. Under Article 29 of the Constitution it is not only the various organs of the State but persons performing functions in various organs of the State have also to perform their duties in the manner that promotes the principles of policy under Chapter 2, Part II of the Constitution, which includes Article 35. The Police Department is an organ and authority of the State and it is the duty of the functionaries of the Police Department to see that they act in a manner which advances the dictates of the Constitution and not in a manner that will negate the Will of the Constitution givers. In respect of a bona fide marriage validly contracted and in consequence whereof the spouses are living together, the police or for that matter any other functionary of the state has no right to disturb the marital life of the couple. If a complaint is made to the police then, in given circumstances, the police can and should ascertain whether a valid marriage has taken place or not. Once the police officials come to know that a valid marriage has taken place, then brushing aside any other social consideration, they must not act to disrupt or otherwise interfere in the marital life of the spouses. They should not try to snatch the wife from the husband and deliver her to the custody of her parents without her wishes. Such a function should be left to the Courts, which have the exclusive jurisdiction in the matter and which can be approached by aggrieved persons for redress of their grievance. In case where the marriage has taken place through Nikahnama, the police should avoid to call the wife to the police station, as far as possible, for the purpose of investigation of the case. Because, calling a woman to the police station and exposing her to the rough and tough atmosphere there and particularly in matrimonial disputes, would not be expedient. It is also the common complaint that the police puts undue pressure on the husband to divorce his wife by causing harassment to his parents and other family members. Such a practice on the part of the police is not countenanced by law and in some cases it may even entail criminal liability. There is no law which empowers the police to facilitate any person to obtain divorce from a husband through coercive measures or otherwise interfere in the enjoyment of the marital life of the spouses.
6 It is not merely Article 35 but the very fundamental right guaranteed under Article 9 of the Constitution stands violated where a duly married couple is compelled to separation through coercive measures by poliee or any other person. Article 9 of the Constitution guarantees protection to life. This Article reads as under:-- "Security of person.---No person shall be deprived of life or liberty save in accordance with law,"
The word "life" occurring in Article 9 does not merely mean vegetative or animal life, it includes such amenities, facilities and personal rights as should be enjoyed by a person born in free country. The Honourable Supreme Court while explaining the meaning of "life" as occurring in Article 9 (ibid), in the case of Shahla Zia v. WAPDA PLD 1994 SC 693 observed as follows:-- "The constitutional law in America provides extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachment on such personal rights freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint that petitioners have made. In our view the word 'life'
Constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable."
In my considered view the word 'life' as used in Article 9 (ibid) also means a happy life which a married couple is entitled: to lead and enjoy. Life without personal rights is not worth living.
Enjoyment of personal rights including the right of a married couple to establish home and live together is a basic human right which has been protected under' Article 9 of our Constitution. This right inheres that the married couple is entitled to enjoy each other's company and to live together without fear or hindrance. If the spouses are deprived of their right to live together and they are compelled to live separately against their wishes then it will be a worst kind of violation of their fundamental right guaranteed under Article 9 of the Constitution. The duty of the police is to in aid of the Constitution and the law. Neither the police nor any other functionary of the State has any right to cause harassm ent to a married couple or their family members with a view to cause separation between the spouses. The duty of the police lies in protecting the marital life of a duly married couple and not to cause any hindrance therein. The police should not lend a helping hand in depriving the spouses of their fundamental right to live together peacefully.
7. It must, however, be stated that the abovementioned restraint on the part of the police holds good only in cases of bona fide marriages. Mere sham transactions in the name of marriage, which are fabricated and brought about without consent of the woman, just to cover up the criminal acts have to be dealt with differently by the police, in accordance with law.
8. Usually, a complaint is made to the police for registration of a case on the allegation that girl/woman has been abducted for the purpose of committing Zina. Such a complaint is made either by a parent of the girl or any of the relatives. The usual plea taken by the accused person is that he has not abducted the girl and instead they have married with mutual consent and living as husband and wife. The duty of the police in such complaint cases is of delicate nature. This duty should be performed with parental touch. From the attending circumstances, the Investigating Officer should assess whether the marriage pleaded by the accused on the face of the Nikahnama is a genuine transaction or not. He can examine the wife and other witnesses to find out if the marriage took place with consent of the woman. In case he finds that valid marriage appears to have taken place, then pending all other formalities that he may have to perform towards the final investigation of the case, he should not try to destroy the marriage by compelling the wife against her wishes to separate from the husband. It must be stated with all emphasis that a duly married couple has inviolable right to live together. It is only the Family Court which can undo the marriage or order separation between the spouses. This function is exclusive to the Courts and the police should never try to enter this area.
9. A question then arises, broadly speaking, what constitutes valid marriage and how should it be ascertained. I will refer here only the Mulsim marriage. Every sane Muslim, whether a male or a female, who has attained puberty can enter into a contract of marriage with his/her free consent, according to Islam. Minors who have not attained puberty or insane persons can be given in marriage only by their Walis. Puberty of a woman is presumed at the age of 15 years. However, under the enacted Muslim Family Laws the minimum ages of 18 years and 16 years have been prescribed for a man and a woman, who can be married. As already said the other all important condition is that the marriage can take place only with the free consent of the man and the woman. A bona fide marriage contracted with free consent of the spouses should be respected and acknowledged by the police. If the girl is of tender age, below the presumed age of puberty or her relationship with the husband is such that marriage between the two cannot take place under the Qui.' anic Injunctions, the police should act promptly to recover the abductee/wife and restore her to the custody of her parents or other persons entitled for the same. Where the girl is sui juris alright but on the face of the Nikahnama the marriage is not bona fide and appears to have been brought about just to cover up the offence and a lasting marriage is not intended with the abducted woman by the person claiming to be the husband there the police has to act very cautiously. It is generally seen that a girl is abducted/enticed away and then a Nikahnama is manufactured and the dower amount is ridiculously so low that it does not give indication that a bona fide marriage is intended by the abductor/paramour. I have come across a large number of cases in which the alleged Nikahs were performed without the consent of the parents of the girls in far off cities/villages and the dower amounts fixed were just a few hundred rupees. In such circumstances, where the marriage is without the consent of the parents, fixation of small amount of dower in the Nikahnama should put the Investigating Officer on guard to find out whether consent of the woman to the marriage is with her free consent. Inadequacy of dower amount in such cases is a relevant factor, though not conclusive for determining the bona fides of a marriage.
Bona fides of the marriage may, however, be presumed where the husband with a view to safeguard the future interest and security of the girl/woman has fixed an adequate dower in the shape of money or property of both. If adequate dower is fixed in the Nikahnama then it can legitimately be presumed that the marriage is intended to last indefinitely and it is not merely creation of a document for defence purpose. However, dower should not be taken as the sole determining factor, though it is a relevant factor. Sometimes it is seen that a bona fide marriage is intended by the spouses but the man who performs the Nikah in his own notion of Islamic Law or local custom fixes very small amount as dower, though there is no prohibition for fixing adequate dower nor there is maximum limit for the dower under Islamic Law. In such a case, it is not due to the bad intentions of the husband that a small dower amount is fixed in the Nikahnama. The husband can always and at any time enhance the dower in the shape of money or property, to show the bona fides of the marriage. The parents or relatives of the husband can also offer their property by way of additional dower. Therefore, if the police or any Court or authority finds that the dower has been suitably increased subsequent to Nikah, for the benefit of the wife, the presumption of bona fide marriage may then be raised. This, however, is subject to the foremost condition that the marriage has taken place with the free consent of the woman who should otherwise he sui juris. Once it is found that the marriage was contracted with the free consent of the woman and on the part of the husband it is apparently a bona fide marriage, then every effort should be made by the police/administrative authority/Courts to protect and preserve the marriage rather than to destroy it. Persons including the parents of the wife/woman who challenge a valid marriage must approach the Family or Civil Court for appropriate declaration with respect to the invalidity of the marriage.
10. The relationship between husband and wife is so sacred and delicate that it ought to be respected by everyone, keeping aside all other considerations. It must be emphasised that a woman who is by force compelled or coerced to leave the wedlock, may not be able to live elsewhere within the limits prescribed by Allah. If that happens, the society generally and the parents and other relatives of the woman will have to suffer in humiliation immensely. It may be pointed out that strict observance of the limits prescribed by Allah by the spouses is the pivot point of the institution of marriage in Islam. That is why, where the spouses cannot keep the limits prescribed by Allah, the marriage is dissolved by the Courts on that ground alone. Therefore, to destroy a lawful wedlock against the wishes of the wife is not desirable even on the moral grounds
11. In the instant case I find that the dower amount mentioned in the Nikahnama is just Rs,300.
Muhammad Ramzan son of Bahadur Khan (NIC No,322-54-071392) who is the maternal uncle of the husband and a close relative of the wife as well has verified the factum of marriage and genuineness thereof. He has further stated that he himself is issueless and in order to secure the future of Sajida Bibi he has gifted his Plot No,64 measuring 6 Marlas and 6 Sirsahis, situated in Chak No,66-V-L, Tehsil and District Sahiwal in her favour. He has further stated that the plot is already in possession of the donee who is residing in a room built thereon with her husband. Mst.Sajida Bibi has happily accepted the gift in presence of the Court. This gift, according to the donor, has been made by him on behalf of the husband by way of additional dower to secure the future interest of Sajida Bibi in view of the fact that the marriage has been contracted without the consent of her parents. Indeed the dower in the form of immovable property is a great security for the wife who on account thereof is accepted in the husband's family with respect and dignity. Since the marriage contracted with free consent is between the cousins and adequate dower in the form of gift of immovable property has also been provided for benefit of the wife, the marriage is accordingly found to be a bona fide transaction .
12. A gift of immovable property made by a Muslim, in such circumstances by way of dower or additional dower is not required to be registered in view of the visions of section 129 of the Transfer of Property Act, as held in Mst. Allah Jawai v. Allah Ditta PLD 1975 Lahore 1399. After acceptance of the gift by the donee the gift has become complete. The Tehsildar, Sahiwal shall, therefore, attest the mutation of gift and send a copy of the mutation to the Deputy Registrar (Judicial) of this Court for placing the same on the file of this case, within eight weeks. Copy of this order shall be forwarded to the Tehsildar, Sahiwal who shall summon the above said donor for sanctioning the mutation.
13 The writ petition was disposed of by the short order with the following directions:-- "In view of the statement made in Court by Mst.Sajida Bibi and Muhammad Ramzan (who are first cousins inter se) that they have contracted marriage on 16-4-1996 with their own free consent, it is directed that the respondent shall not cause any harassment to the petitioners or other family members of petitioner No,2."