Find a Lawyer

---S 491--Habeas corpus-Girl having attained puberty contracting marriage of her own free will-Marriage, held, valid-Consent of father immaterial-Validity of such marriage, held, cannot be chal lenged under Child Marriage Restraint Act, 1929-Girl (detenu) stating to have married willingly and living with respondent of her own free will allowed to go with her husband-Applicant could lodge complaint under Child Marriage Restraint Act, 1929, S. 9 against those responsible for marriage-Muhammadan law-Marriage -Child Marriage Restraint Act (XIX of 1929), S. 9.

Mushtaq v. Muhammad Amin P L D 1962 Kar. 442 and Mauj Ali v. Syed Safdar Hussain Shah and another 1970 P Cr. L J 1035 ref.

A. G. Siddiqui for Appellant.

Azizullah K. Shaikh for Respondent No. 1.

Assistant Advocate-General for the State.

Dates of hearing: 5th and 9th September 1974.

This petition is by the father of the detenu, Mst. Zeenat Parween, seeking to have her custody. The case set out in the petition is that he was abducted along with her mother, Mst. Zainab Bi, on 28^thMarch 1974, by Munawar, Muhammad Ismail and his wife, Abdul Majid and Pahelwan. The petitioner sent an application to the S. H. O., Police Station Jamshed Quarter, but no action was taken, whereupon he approached the higher authorities, in consequence of which the case was regis tered, but those who had abducted the wife and the detenu were not arrested. The detenu was, however, produced before the A. D. M., Karachi, who recorded her statement and it thereupon transpired that the detenu was married to respondent No. 1, Nawaz Ali Dero. The nikahnama shows her age as 17 years and one of the abductors, namely Munawar Ahmad, falsely personated as her uncle. According to the petitioner, Mst. Zeenat Parween is aged 14 or 15 years and that being a minor she was married without his consent, which marriage is not valid in law. He has, therefore, invoked the jurisdiction of this Curt for granting her custody to him.

2. As for the age of the girl, she is certified to be about 16 years by the Civil Surgeon, Karachi. The birth certificate shows her date of birth as 20th December 1958. There can, therefore, be no doubt that though under sixteen she is a pubert, which fact has not been disputed. All that is said is that she is under 16 years of age and could not have contracted a marriage without the consent of her guardian, that is the petitioner, not only under the Muhammadan Law but also under the provision of the Child Marriage Restraint Act, 1929. The detenu was produced in Court pursuant to an order dated 9th August 1974, and we have examined her. She has stated that she has married respondent No. 1, Nawaz Ali Dero, willingly and that she was living with him of her own free will and accord. As against the petitioner she stated that he used to beat her and make false allegations against her. She also expressed her desire to live with her husband. In the context of the above statement and the fact that she is pubert, w a do not see how she cannot contract marriage on attaining puberty under the Muhammadan Law without her father's consent a law is well-settled and, in this view of the matter, the consent of the father was immaterial. Even the validity of the marriage cannot be assailed for tine effect of the Child Marriage Restraint Act would merely be to punish the male for con tracting a marriage with a child. Such view was tic, rely expressed in Mushtaq v. Muhammad Amin (P L D 1962 Kar. 442), but also by the Supreme Court in Mauj Ali v. Syed Safdar Hussain Shah and another (1970 P Cr. L J 1035). I need only reproduce here the following observations of Waheeduddin Ahmad, J. while dismissing the petition for leave to appeal:-

"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 section 363/366, P. P. C. the High Court should not have entertained an application under section 481, 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 recognised 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."

This being the state of law and having regard to the wishes of the detenu that she wants to reside with her husband, the only order that can be passed is to set her at liberty and leave her to exercise her will to live with her husband, which we have already ordered by a short order dated 9th September, 1974. ,

3. As for any offence having beers committed under the Chill Marriage' Restraint Act, 1929, we leave it to the petitioner to approach the authority in terms of the amended section 9 of the Child Marriage Restraint Act for lodging a complaint against those responsible for her marriage. We also discharge the notice issued to Munawwar as to why he should not by prose cuted for impersonating himself as the uncle of the girl, for that is a matter also for the petitioner to agitate if so advised before a competent authority. The petition accordingly stands dismissed.

Petition dismissed.