PLJ 2021 Lahore 618
Constitution of Pakistan, 1973--
----Art. 199(b)(1)--Criminal Procedure Code, (V of 1898), S. 491--Recovery of detenue--Marriage was contracted with her own free will and consent but against wishes of parents--Question of--Whether he has contracted marriage with detenue merely as a result of his crush monentous or contracted marriage sincerely with religious zeal--Nikah khawan--Violations of SOPs--Initiation of proceedings--Matter is referred to Chief Officer, Burewala, District Vehari for initiation of penal proceedings against Nikah Registrar/delinquent, after affording an opportunity of hearing to him and report thereof shall reach to this Court through D.R Judicial within a period of one month, after receipt of copy of this order. [P. 622] A
Sh. Tanveer Ahmad, Advocate with Petitioner.
Mr. Muhammad Ayyub Buzdar, Assistant Advocate General for State.
M/s. Muhammad Saleem Bashir and Rana Rizwan, Advocates for Respondent No. 3.
Abbas, ASI alongwith lady constable has produced the detenue Mst. Hamna Raheel.
Date of hearing: 14.10.2020.
PLJ 2021 Lahore 618
[Multan Bench, Multan]
Present: Anwaarul Haq Pannun, J.
ZEESHAN ALI ZAFAR--Petitioner
versus
SHO, etc.--Respondents
W.P. No. 13297 of 2020, decided on 14.10.2020.
Order
Through this petition under Article 199(b)(1) of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 491, Cr.P.C., the petitioner seeks recovery of his wife (hereinafter to be called as the alleged detenue) namely Mst. Hamna Raheel, from the illegal and improper confinement of Respondents No. 2 & 3, so that she may be dealt with in accordance with law. According to the averments made in the petition, the detenue being sui-juris and major, with her own free will and consent but against the wishes of her parents and other siblings, contracted gretna green marriage with the petitioner on 17.07.2020 and started to perform her matrimonial obligations while living in his house. The private respondents being close relative of the detenue tried to interfere into their matrimonial life, constrained whereof, the detenue had to file a private complaint against them. While recording her cursory statement before the Court in the private complaint, the alleged detenue categorically stated that nobody had abducted her and she has contracted marriage with her own free will and consent. The respondents, later-on, assured the spouses that they have purged their ill-will against them. The detenue on 28.09.2020, accordingly went alongwith the respondents to see her other relatives. It was promised by the respondents that the detenue shall be sent back home within two days, but they failed in materializing their promise. The petitioner, when approached the private respondents for return of detenue/his wife, they instead of allowing her to join him, extended threats of dire consequences. The detenue however succeeded in establishing contact with the petitioner. She told him that the private respondents alongwith others were hatching up a conspiracy to murder her and if she is not relieved from their clutches, the petitioner may not be able to find her alive. Hence, this petition.
2. Subject to deposit of Rs. 20,000/- with D.R (Judicial) of this Court as security, this Court vide its order dated 07.10.2020 directed Respondent No. 1/SHO that the alleged detenue after her recovery be produced before the Court. In compliance of aforesaid order, Abbas ASI accompanied by a lady constable, has produced the alleged detenue before the Court, after her recovery from the house of her parents/ respondents, who categorically states that she is sui-juris, major and has contracted marriage with the petitioner, with her own free will but without the blessings of her parents. She after affirming the above noted averments of the petition has shown her willingness to accompany with her husband i.e. the petitioner.
3. Since the alleged detenue being sui-juris and major has contracted marriage with the petitioner without the blessings of her parents and other siblings, therefore, with a view to examine the petitioner's bona-fides as to whether he has contracted marriage with aforesaid detenue merely as a result of his crush, momentous and impulsive passion, arising out of her bodily and behavioral charm or he has contracted marriage sincerely with religious zeal, the petitioner being present before the Court, when quizzed, he in order to fortify his bona-fide as well as to forge a sense of security in monetary terms, in the mind of the detenue, with his volition reaffix the amount of deferred dower of the alleged detenue/his wife as Rs. 10,00,000/-(ten lac) and submitted his sworn affidavit Mark “AA” in this context, which shall be considered as an integral part of Nikahnama.
4. It is observed here that considering rampant violations of the Provisions of the Child Marriage Restraint Act (XIX of 1929), Muslim Family Laws Ordinance (VIII of 1961), Family Courts Act, 1964 and The Punjab Local Government Act, 2019, certain directions were issued by this Court in a case, reported as “Mst. Tahira Bibi vs. SHO etc.” (PLD 2020
“As referred in Para-5 of the judgment, Director Local Government and Community Development, Multan in view of his correspondence with Director General Local Government and Community Development, Lahore has issued some Standard Operating Procedure for taking punitive action against the Nikah Registrar violating the basic law to the following effect:-
“i. That Section 5(2A) of MFLO, 1961 states that at the time of solemnization of marriage, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all columns of the Nikahnama form with specific answers of the bride or the bridegroom. And in case of contravention, a punishment is prescribed under Section 5(4)(i) of the said Ordinance i.e. if a person contravenes the provisions of sub-section (2A), he shall be punished to simple imprisonment for a term which may extend to one month and fine of twenty five thousand rupees.
ii. Further, under Rule 21 of the West Pakistan Rules under Muslim Family Law Ordinance, 1965 (hereinafter rules’), no Court shall take cognizance of any offence under the ordinance or the rules unless on a complaint in writing by the union council, stating the facts constituting the offence; therefore, ensure that every union council should lodge complaints soon after the receipt of Nikahnama forms columns of which are not accurately filled. Furthermore, prepare a report, on quarterly basis, containing the details about the complaints lodged during the quarter and furnish the same to DG office for information;
iii. That cancel/revoke, after giving show-cause notice, the license of Nikah Registrar who breaches any of the provisions of MFLO, 1961 or rules made thereunder or any of the condition of his license. [In view of Condition No. 5 of the Conditions of the License, these directions may be deemed to be part of the conditions of the license.]
iv. That ensure that no incomplete (not accurately filled) Nikahnama be registered in the UCs and if any Secretary UC or any other official registers the incomplete Nikahnama, he may, forthwith, be proceeded against under the PEEDA Act, 2006 and keep noted that no laxity in this regard shall be tolerated.
In addition to above, the following further directions are being issued
(1) All the Nikah Registrars or other persons, who solemnize marriages are under legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage. Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from the parties to the marriage preferably which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School Leaving Certificate, Medical Certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council, etc. is produced.
(2) Furthermore, after perusing the record in compliance with SOP (ii) mentioned in Para 17, in case the Authority fails to take the requisite action, it will be deemed that he himself has willfully failed to perform his function/duty amounting to negligence rendering himself liable for initiation of disciplinary proceedings against him under the relevant law.
6. In view of what has been discussed above, the instant petition is allowed, consequently, the detenue Mst. Hamna Raheel is set at liberty. She may accompany with her husband/petitioner. The security amount already deposited by the petitioner in compliance of order dated 07.10.2020 is however, ordered to be refunded to him. The office is directed to send the copies of this order and aforesaid affidavit (Mark-AA) to the Secretary, Union Council concerned, for its endorsement in the relevant column of the “Nikahnama”, available with him/record.
(R.A.) Petition allowed
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