' SHAMEEM HUSSAIN KADRI, J.-This appeal arises out of the judgment of a learned Judge-in- Chambers dated 6th August 197r, whereby he dismissed the petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, filed by the present appellant against the Station House Officer, Jalalpur Pirwala and her father. She asserted that originally she was engaged to one Ghulam Farid son of Allah Ditta by her father who kept him as khonadamad and married the appellant with him after she attained the age of puberty.
2. A dispute arose between the father and husband of the appellant. Her father forcibly tried to give the appellant's hand to one Manzoor. The appellant being a married woman refused to yield to the wishes of her father and having found an opportunity left the house of her father of her free will and went to the house of her husband Ghulam Farid. More than half a month later appellant's father got registered a false case against Ghulam Farid appellant's husband under sections 363 and 366, Pakistan Penal Code on 13th lune 1976. The case of the father in the F. I. R. Is somewhat different. He alleged her abduction. The appellant was subjected to medico-legal examination by the Police Surgeon, Lahore, who after looking into the X-Rays opined that she was 17 years old. She was also examined by the Additional Medical Superintendent, B. V. Hospital, Bahawalpur, about her age which was described by him as 17/18 years. In pursuance of the F. I. R. Made by the appellant's father the Sub-Inspector tried to recover the appellant in order to hand her over against her wishes to the appellant's father. The prayer in the petition was that the Station House Officer be restrained from taking her away from the custody of her husband and handing her over to her father against her wishes.
3. It has been argued before us in the appeal that the appellant was married and her nikah was duly registered under the Family Laws Ordinance on 29th April 1976 I e. Long before the date of F. I. R , namely 13th June 1976. Certificate of marriage has been produced before us. It was claimed that she being sui furls was competent to contract marriage and could not be delivered like a chattel to the claimant (father). We would not like to go into the merits lest it may prejudice the parties case.
The S. H.
0. Was only interested to record the statement of the girl.
4. Mr. M. A. Gohar learned counsel for the respondent vehemently argued that the girl being under the influence of her so-called abductor will not be in a position to make statement freely. On his suggestion the girl was sent to Dar-ul-Aman for three days where she was kept at the expense of her husband. It was directed that both the father and husband of the appellant would be allowed to meet her in the presence of Superintendent, Dar-ul-Aman. The S. H.
0. Recorded her statement. She stated before him that she is of age, competent to contract marriage and she wants to live with her husband. Somewhat similar statement was made by her in this Court on 8th November 1976. She has deposed that she was pregnant for seven months.
5. 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. Mulla, 1975 Edition, 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 Dlwaya v. Mst. Kammon Mai (1) and Mst. Atkia Begam v. Muhammad Ibrahim Rashid Nawab (2) 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 mensuration.
6. Both the cases cited above are of little assistance to the complainant's version. Mr. M. A. Gohar half-heartedly contended that the intra-Court appeal is incompetent, but he has not been able to show any legal provision in support of his contention. The mere fact that the learned Single Judge made certain observations regarding morality in the case would not affect the competency of the writ petition under Article 199 of the Constitution.
7. For the foregoing reasons we accept the appeal, but leave the parties to bear their own costs.
The girl had of her own accompanied her husband. She will, however, be available as and when called upon to appear as a witness in the criminal case if any is presented in the Court for trial.
(1) PLD 1957 Lab. 651 (2) 36 I C 20