This order will dispose of Civil Revision No. 772 of 1976 and Criminal Misc. No. 102/M of 1977. The civil revision arises out of an order of a Family Court, Lahore, dated the 29th of July, 1976. It is an order under section 12 of the Guardians and Wards Act by which the learned Family Court entrusted the custody of the petitioner Mst. Musarrat Bibi to her grand-mother Mst. Saira Bibi. During the pendency of the revision petition I passed an order of suspension of the above order since at that time Mst. Musarrat Bibi was residing at Dar-ul-Aman with her own consent. Notwithstanding this order, the Superintendent, Dar-ul-Aman gave her custody to Mst. Saira Bibi on which a notice of contempt of Court was issued to the Superintendent as well as Mst. Saira I3ibi. This notice was discharged since it came to my notice that Mst. Saira Bibi had no knowledge about the order passed by this Court and the lady Superintendent had tendered unqualified apology. Since the stay order had been passed before the delivery of actual custody, I directed restitution and Mst.
Musarrat Bibi was consequently sent with her own consent to Dar-ul-Aman. The petitioner Musarrat Bibi has now filed a criminal miscellaneous petition for her release from the custody of the lady Superintendent, Dar-ul-Aman since she no longer wishes to remain in that institution.
2. Briefly the facts are that the petitioner has a grandmother Mst. Saira Bibi who is respondent and an adult brother Nazar Hussain. The parents of Mst. Mussarat Bibi are dead. Her father died long ago but her mother died only a few months before the proceedings under section 25 of the Guardians and Wards Act were initiated by Mst. Saira Bibi. Mst. Musarrat was living with one Muhammad Shafi. The case of Mst. Musarrat Bibi is that this arrangement was made by the Mohallahdars for her up keeping and bringing up. Nazar Hussain brother of the petitioner filed an application under section 100, Cr. P. C. Since the petitioner was not prepared to go with her brother the Magistrate sent her to Dar-ul-Aman. These proceedings were challenged at the instance of Mst. Musarrat Bibi in the High Court by a petition Criminal Misc. No. 470/Q of 1976. Another petition.
Criminal Misc. No. 426/H of 1976-habeas corpus-was also filed. The proceedings before the Magistrate were quashed but the petitioner was allowed to remain m Dar-ul-Aman since she gave her consent to that effect, during the pendency of the petition under section 12 of the Guardians and Wards Act which had already been initiated by Mst. Saira Bibi before the Guardian Judge in her application under section 25 of the Guardians and Wards Act.
3. Mst. Saira Bibi contended in her application that the petitioner was about 13 years old and she was entitled to her custody. The claim appears to be that of Hizanat. This petition was resisted by the petitioner on the ground that she was 18 years old and was not willing to go to Mst. Saira Bibi. In this petition under section 25 an application was made by Mst. Saira Bibi for interim custody of the petitioner under section 12 of the Guardians and Wards Act. The learned Judge allowed this petition on the 29th July, 1976, and directed the custody of the petitioner to be given to Mst. Saira Bibi.
4. After hearing Mr. Muhammad Iqbal, learned counsel for the petitioner and Mr. Khaqan Babar, learned counsel for the respondents, I am of the view that this petition must succeed. It is clear from the judgment of the learned Guardian Judge that he has not considered the evidence on record to prove that the petitioner' was much above the age of 13 years, in fact, she had already attained puberty long ago and in these` circumstances Mst. Saira Bibi could not claim to be her legal guardian or to have any right of Hizanat. As stated above, the case of the petitioner was that she was 18 years old. The learned trial Court relied upon his visual examination of the face of the petitioner as also a medical certificate which proved that she was virgin and was also about 13 years of age. He did not take into consideration various other facts which are as follows :
(i) There is a certificate by a Radiologist who had examined the petitioner during the proceedings under section 100 of the Criminal Procedure Code. According to this certificate which appears to have been given on sound grounds, the petitioner was about 17 years of age on the date of her examination i.e. 12-6-1976.
(ii) There is a copy from the Register of births proving the date of birth of Mst. Sughran, younger sister of the petitioner, to be more than 15 years at the time of the passing of the impugned order.
(iii) There are a number of affidavits, in fact, as many as 10, which prove that the petitioner was 18 years of age and that Mst. Sughran was born three years after the birth of the petitioner. There is no mention in the judgment of this valuable piece. Of record which might prove at that time that the petitioner was more than 18 years of age.
5. The learned trial Court proceeded on the assumption that the petitioner was more than 16 years old but it did not take it to its logical conclusion for adjudicating upon the maintainability of the petition under section 25 by a person who had ceased to have any right of Hizanat on account of this finding. I may refer, in this connection, to sections 353 and 355 of Principles of Muhammadan Law by D. F. Mulla (16th Edition). Section 353 states that in default of the mother, the custody of a girl who has not attained puberty belongs inter alia to mother's mother. The portion underlined* by me is relevant and goes to prove that the right of Hizanat under this section can be claimed by a mother's mother only upto the time of attainment of puberty by the minor. Section 355 states that "in default of the mother and the female relations mentioned in section 353, the custody belongs to the following persons in the order given below :
(1) the father ;
(2) nearest paternal grandfather ;
(3) full brother ;
(4) consanguine brother ;
(5) full brother's son ;
(6) consanguine brother's son ;
(7) full brother of the father ;
(8) consanguine brother of the father ;
(9) son of father's consanguine brother ;
(10) son of father's consanguine brother."
It will, therefore, be clear that the brother, if the petitioner has theft right of custody and not the mother's mother of the minor.
6. These are two jurisdictional defects under section 115(c) and I am of the view that the learned Guardian Judge has acted illegally and with material irregularity in the exercise of his jurisdiction by omitting to consider the evidence on record in regard to age and also the competence of Mst.
Saira Bibi to file an application under section 25 of the Guardians and Wards Act. If the petitioner was found to be more than 18 years old the learned Guardian Judge would not have any jurisdiction to pass an c order under section 12 of the Guardians and Wards Act. In fact, as will be shown this order has given rise to some difficulties.
7. The revision petition came up before me on the 30th July, 1976. I passed an order that the custody shall remain with the Superintendent, Dar-ul-Aman. Despite this order, the Superintendent, as stated above, banded over the custody to Mst. Saira Bibi the same day. When this fact came to my notice I issued a notice under the Contempt of Courts Act to respondent No. 2. I also directed Mst. Saira to appear before me on the 24th August, 1976, along with the petitioner. On that date Dilshad Hussain who claimed to be the maternal grandson of the real sister of Mst. Saira Bibi put in appearance and produced a medical certificate showing that Mst. Saira Bibi was suffering from fever. He further stated that the petitioner was at village Kot Kalal Tehsil Pasrur, District Sialkot and was living with Mst. Saira Bibi. I was not convinced with this statement and gave further opportunity to Mst. Saira Bibi to appear with the minor on the 1st of September, 1976. On that date both these persons appeared. I recorded the statement of the petitioner in order to find out whether she was willing to go back to Darul Aman. ' On her showing willingness to go to Darul Aman I directed her custody to be given to the Superintendent, Darul Aman. This order was passed because of the stay order having been passed before the delivery of the custody to Mst. Saira Bibi, the case was covered by the dictum laid down in Karam A.I v. Raja (PLD 1949 Lah. 100).
8. The petitioner appeared before the Guardian Judge on the 7th September, 1976. Her statement was recorded on the next date in which she made allegations of subjecting her to rape as against Dilshad Hussain and one Safdar. She also alleged that Amjad Sherazi, Faryad Hussain and Nazir Hussain were also a party to getting her thumb impression on a certain document which later was found to be a Nikahnama of the petitioner with Safdar although no Nikah was held. A case was thereafter registered under the orders of the Court by the police under section 376/109, Cr. P. C.
Against the persons named above and one Mst. Majidan wife of Nazir Hussain. The case of the respondents now is that the petitioner was validly married with her consent which she gave at the age of 18 years with Safdar Hussain. The Nikahnama shown to me also bea.s out that the age of the petitioner was given as 18 years. It was only on account of this misconceived order passed by the learned trial Court giving custody of the petitioner to her grand-mother that difficulties have arisen.
9. The first question in this case is about the age of the petitioner. It is this question which will decide the fate of the petition under section 12 of the Guardians and Wards Act and will affect its maintainability. I have already referred to the evidence which has been ignored by the learned Guardian Judge. It is not denied that the Radiologist's report as given on the 12th June, 1976, is that the petitioner was about 17 years old at that time. It was also conceded at the Bar on instructions from Dilshad Hussain who is present in Court that Mst. Sughran Bibi is a younger sister of the petitioner. There is a birth certificate which proves that Mst. Sughran Bibi was born on the 3rd of December 1960, which means that on the date of the impugned order her age was 15 years and about 8 months. According to Dilshad Hussain, Mst. Sughran Bibi is younger to the petitioner by J years. This clearly brings the age of the petitioner to more than 17 years and 2 months. The report of the Radiologist, therefore, finds support from this evidence and concession. There is, however, evidence on the record in the form of affidavits against which no counter affidavits have been filed that the difference of age of Mst. Sughran Bibi and the petitioner is 3 years. If this age is to be taken into consideration the petitioner was clearly more than 18 years old on the date when the order was passed. There is another circumstance which has been brought to my notice during the hearing of this case and that is the later development in this case proving that on the date of the alleged marriage ceremony between the petitioner and Safdar Hussain the age of the petitioner was recorded as 18 years which is a clear admission on the part of the other party that the petitioner was 18 years old on the 18th August, 1976, which is the date of the Nikahnama.
10. From this evidence two things have been made clear. The first point is that the petitioner in any case as conceded by the parties was 15 years old on the date when the application was made.
There is no doubt that the applications under section 25 and section 12 of the Guardians and Wards Act were submitted on the date when the petitioner had attained puberty. In these circumstances Mst. Saira Bibi respondent could no longer claim to have the right of custody. She could only prima facie apply for appointment as a guardian and not simply proceed on the basis of this application under section 25. This is sufficient to throw out the case of the , respondent. I am also convinced by the evidence on record particularly the Radiologist's report and the birth certificate along with un rebutted testimony of the affidavits that the petitioner is more than 18 years of age.
She is, therefore major. No proceedings under sections 25 and 12 of the Guardians and Wards Act can be taken against her. The case in Criminal Miscellaneous No. 109/M of 1977 is, therefore, made out in favour of the petitioner. This petition has not been admitted so far but since the matter is only about the age of the petitioner the arguments already addressed by the learned counsel equally apply to this case. In these circumstances, I allow Criminal Miscellaneous No. 102/M of 1977 and direct that the petitioner shall be set at liberty and shall no longer remain in the custody of the Superintendent, Dar-ul-Aman.