--Validity of Nikkah/marriage where girl had obtained puberty--

 PLD 2021 LAHORE 21

Child Marriage Restraint Act (XIX of 1929)---

----Ss. 8 & 2(b)---Validity of Nikkah/marriage where girl had obtained puberty---Scope---Petitioner, who stated that she had contracted marriage on her own free-will, impugned order of Magistrate whereby it was ordered that she either remain in custody of Dar-ul-Aman or be allowed only to be handed in custody of her natural guardian and should not be allowed to go with her alleged husband---Validity---Medical Board constituted by Court had in its report stated that petitioner was 14/15 years of age and had obtained puberty---Girl who had attained puberty may contract marriage with a man of her choice and was not necessary for such girl to obtain consent of her Wali/ Guardian, and in such a case, contention that such marriage/Nikkah should not be recognized under Child Marriage Restraint Act, 1929 had no force---Constitutional petition was allowed, accordingly.

 PLD 2021 LAHORE 21
Before Tariq Saleem Sheikh, J
MUHAMMAD KHALID---Petitioner
Versus
MAGISTRATE 1ST CLASS and 2 others---Respondents
Writ Petition No. 13208 of 2019, decided on 9th October, 2019.

ORDER

TARIQ SALEEM SHEIKH, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner has challenged the vires of order dated 31.7.2019 passed by Magistrate Ist Class, Multan and seeks release of his wife Mehvish Bibi from Dar-ul-Aman, Multan.

2. Brief facts of the case are that on 18.4.2019 Mehvish Bibi daughter of Respondent No.3 contracted marriage with the Petitioner without the blessings of her family. Respondent No.3 lodged FIR No.242/2019 dated 22.6.2019 at Police Station Saddar Shujabad, District Multan, for an offence under Section 365-B, P.P.C. Thereafter, she filed Writ Petition No.9705/2019 before this Court seeking direction to SHOs of Police Stations New Multan, Saddar Shujabad and Saddar Lodhran to refrain from harassing her which was disposed of vide order dated 25.6.2019 and the CPO, Multan, was directed to look into the matter. Mehvish Bibi then filed Writ Petition No.10785- Q/2019 for quashing of FIR No.242/2019, supra, which was disposed of as not pressed vide order dated 18.7.2019 when the Investigating Officer made a statement that he would finalize the investigation expeditiously. On 15.7.2019 Mehvish Bibi moved an application before Magistrate Ist Class, Multan (Respondent No.1), praying that she may be sent to Dar-ul-Aman because she was apprehending danger to her life. The Magistrate accepted the application vide order dated 15.7.2019. A week later, on 23.7.2019, she moved another application before the Magistrate for her release from Dar-ul-Aman. On 31.7.2019, she was produced before the Magistrate and she got recorded her statement to the effect that she did not feel threat to her life any more and wanted to leave the sanctuary. Respondent No.3 produced her Form-B showing that she was 13 years old minor and urged the Magistrate to hand over her custody to him as he was her natural guardian. The Magistrate agreed and vide order dated 31.7.2019 directed the Superintendent, Dar-ul-Aman, to hand over the girl's custody to the natural guardian or the guardian appointed by the Court and, if she refused to go with him, keep her in Dar-ul-Aman in accordance with law till further orders. Hence, this petition.

3. The learned counsel for the Petitioner submits that Mehvish Bibi contracted marriage with the Petitioner with her own free will and Respondent No.3 lodged a false FIR against him that he had abducted her. Mehvish Bibi had admitted the factum of her marriage even before this Court during the course of hearing of Writ Petition No.10785- Q/2019 when the Investigating Officer had recorded her statement under Section 161, Cr.P.C. She could not be kept in Dar-ul-Aman against her will and should be released. The learned Assistant Advocate General has supported these contentions.

4. On the other hand, the learned counsel for Respondent No.3 has vehemently opposed this petition. He contends that Mehvish Bibi is a minor so her marriage is invalid in view of the restrictions imposed by the Child Marriage Restraint Act, 1929. In any case, Respondent No.3 being her natural guardian is entitled to her custody. He adds that since she is not willing to live with him, she should not be released from Dar-ul-Aman and be kept there till she attains majority. He has prayed for dismissal of this petition.

5. Arguments heard. Record perused.

6. This Court, vide order dated 17.9.2019, constituted a Medical Board to determine as to whether Mehvish Bibi has attained puberty. The Medical Board has submitted its report dated 5.10.2019 which states that her age is about 14 - 15 years and she is a pubert.

7. The marriage between the Petitioner and Mehvish Bibi is not disputed. In Muhammad Iqbal v. The State (PLD 1983 FSC 9) the Federal Shariat Court ruled that a girl who has attained puberty may contract marriage with a man of her own choice and it is not necessary for her to obtain the consent of her Wali. Reference in this respect may be made to Zarjuma alias Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others (PLD 2009 Lah. 546) wherein this Court held:

"The contents of the Nikahnama have been admitted by Respondents Nos.3 and 4. The statement of the abductee Mst. Zarina Mai as well as the presence of the Nikahnama belies the prosecution story as narrated in the FIR, which cannot be believed. When the Nikah has been admitted by Respondents Nos.3 and 4, law does not permit others to challenge the validity of Nikahnama when its contents are admitted by the husband and wife. In this regard, reliance is placed on the case of Dr. Ghulam Mustafa Solangi and 5 others v. The State (2005 PCr.LJ 1638). Moreover, the Nikah of an adult girl is not invalid for want of permission of Wali and further marriage is not invalid on account of the alleged absence of the consent of Wali. Reliance in this behalf is placed upon the case of Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308) and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another (PLD 2004 SC 219)."

8. The contention that this Court should not recognize the marriage between the Petitioner and Mehvish Bibi being in violation of the Child Marriage Restraint Act, 1929, has no force. In Mauj Ali v. Syed Safdar Hussain Shah and another (1970 SCMR 437) the Hon'ble Supreme Court of Pakistan held:

"Mr. A.G. Choudhri, learned counsel for the Petitioner, has contended that the High Court should not have accepted the application filed by the Respondent under Section 491, Cr.P.C. Mst. Musarrat being a minor girl should have been ordered to go with her father. He further contended that as a case was pending against Respondent No. 1 under Sections 363/366, P.P.C., the High Court should not have entertained an application under Section 491, Cr.P.C. The contention of the learned counsel has not impressed us. It is not disputed that Mst. Musarrat 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 Child 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."

The above view was reiterated in Mst. Bakhshi v. Bashir Ahmad and another (PLD 1970 SC 323) and followed in Zarina Khatoon v. District Magistrate, (South), Karachi and 5 others (PLD 1978 Kar. 374), Mst. Rani v. Roshan Masih and another (1986 PCr.LJ 1404) and Allah Bakhsh v. Safdar and others (2006 YLR 2936).

9. In view of the foregoing, Mehvish Bibi cannot be kept in Dar-ul-Aman. Accordingly, impugned order dated 31.7.2019 is set aside and Mehvish Bibi is ordered to be released and is allowed to go wherever she likes.

10. This petition stands allowed.

KMZ/M-149/L Petition allowed.