1973 P Cr (PLP)

Manzoor Hussain and Syed Hamid Ali Rizvi for Respondents Nos. 1 and

2. A. A. Mohammadally for the State. Dates of hearing: 20th March; 3rd and 10th April 1972. This is an application under section 491, Cr. P. C. moved by Mst. Farhat Fatimah Shah against her brother Nadim Aslam Shah and her mother Mst. Anees Fatima Shah, the third respondent being the State.

2. She has prayed in this petition of her that since her marriage with Tariq Ali was against the wishes of her mother and brother they forcibly confined her in a room at 4-U, Block 6, P. E. C. H. Society, Karachi, when the petitioner had gone to meet them after the marriage. Besides they had been cruelly beating the petitioner with sticks and fishing rods, during her detention.

3. She has, therefore, prayed that she be set at liberty and allowed to go with whosoever she pleases as she is an adult lady, her age being 21 years.

4. In the counter-affidavit filed on behalf of the respondents Nos. 1 and 2 it is stated that the petitioner has filed the present petition under the influence and direction of Miss Rukhsana alias Tariq Ali who had herself filed similar petition bearing No. 50/ 971, but on legal objections raised by the respondents in the said petition to the validity of the marriage between the applicant and so-called Tariq Ali alias Miss Rukhsana, the said petition was ultimately withdrawn after filing of the said petition by Miss Rukhsana alias Tariq Ali to avoid medical examination which was requested for by the respondents. According to respondents Nos. 1 and 2, therefore, the petitioner having married a girl her marriage cannot be legally said to be valid. I am afraid the question of legal validity of the marriage between the petitioner and Tariq Ali cannot be made an issue for decision in the present proceedings as that question has to be decided by a Court of civil law competent to take cognizance of such a suit if the parties so desire to approach it. What I am here mainly concerned with is whether the petitioner is either in illegal or improper custody of somebody from which she should be released and allowed to go her away according to her choice. I have, therefore, examined her today also and recorded her statement quite at length. She has in short, to repeat, said that she has married Tariq Ali, who is son of the step-sister of her mother, and is a boy and not a girl but this marriage, according to her, was against the wishes of her mother, the respondent No. 2 herein, therefore, she had wrongly confined her and locked her up in a room after her marriage with Tariq Ali and had also beaten her frequently. She was also not allowed to go out anywhere and was thus kept wrongfully confined. Consequently an application previously had been filed by her husband Tariq Ali which was withdrawn and she herself filed the petition for her release from the unlawful custody and as is stated above.

5. During the course of the pendency of these proceedings on behalf of the respondents Nos. 1 and 2 an objection was raised that the petitioner was not in a sound mental state of health since quite sometime and, therefore, she is not in a fit condition to make a proper choice for her marriage. I had, therefore, examined her myself and questioned her on various aspects of the ordinary life of human beings and from my examination of her, which is on record dated 20-3-1972, I came to the conclusion personally that she appeared to be quite in normal and-fit state of mental health and that she had given very rational and intelligent replies to the questions by me to her. However, I have also got her examined at the request of counsel for the respondents by a Psychiatrist, who has sent his report which is present before me and it says that the petitioner is in a fit state of mental health and further says that no signs of mental illness in the girl were detected at all by the psychiatrist. I have already passed an order on the question whether this medical report was a preliminary report and the girl should be sent again for further examination by the Psychiatrist and given a finding that there is no need to do so and, therefore, I need not repeat the same question for discussion here.

6. I find that the petitioner is an educated girl as she had been studying in Karachi University in B. A. Honours classes and she comes from a very good family too. In my opinion, it would be wrong and rather very harsh which would cause he lot of mental anguish to allow her to be kept by her mother an B brother, the respondents Nos. 1 and 2 in these proceedings, who are likely to again wrongfully confine her for having married against their wishes with Tariq Ali. She has also stated in her statement that she did not wish to return to the house of the mother and brother and would like to go to her husband Ali as she is an adult lady and has made her choice quite clearly for which no one can deter her from doing so. Therefore, I order, for the reasons stated above, that she is set at liberty and is allowed to go wherever she pleases and with whom she likes. supported her present petition. The learned counsel for the State has also supp petition.

7. This petition is accordingly, disposed of. Petition accordingly.