P L D 1969 Lahore 166 (PLP)

Raja Muhammad Anwar for Respondent. Muhammad Latif has applied under section 491, Cr. P. C., to recover the custody of his minor daughter Mat. Najma Kausar by the issue of a writ of habeas corpus, alleging that she was being confined and detained by Akbar Ali.

2. The relevant facts for the disposal of this petition are these, Muhammad Latif was employed as a carpenter at Dubai and was residing there along with his family. Akbar Ali, respondent, an employee in the British Troops at Dubai, was also residing in the neighbourhood of the petitioner. On 25th July 1968, the petitioner along with Mst. Najma Kausar and other family members boarded the plane for Karachi. They reached there on the 26th of July 1968, and stayed in Karachi for a few days. On 1st August 1968, the petitioner along with his family members boarded Shaheen Express for Lahore. Msr. Najma Kausar along with her mother and other children were made to seat in the Ladies Compartment while the petitioner was in the male bogie. It is said that Akbar Ali met the petitioner at Karachi Railway Station. When the train reached Tando Adam Railway Station the wife of the petitioner told him that Mst. Najma Kausar was missing. The petitioner allowed his family to continue their journey, but he proceeded to trace out the missing girl. He lodged report at Railway Police Hyderabad and also at Karachi wherein he suspected that the respondent had abducted his daughter. The police did not take any action.

3. On 24th August 1,968, the petitioner learnt that Mst. Najma Kausar was staying with Akbar Ali at Kot Amir Hussain In Gujrat District, whereupon he presented this application to this Court. A bailiff of this Court was detailed to recover the detenu the bailiff could not trace out the alleged detenu or the respondent. The father of the respondent accepted the notice on behalf of Akbar Ali and undertook to produce him. Mst. Najma Kausar appeared in this Court accompanied by Akbar Ali, and has been examined by me. She says that she left ten parents of her own accord at Karachi and that she has married to Akbar Ali at Karachi in the absence of her parents and is now staying with him of her own free‑will.

4. Raja Muhammad Anwar, learned counsel for the respon dent has urged before me that according to the statement of Mst. Najma Kausar she married to Akbar Ali at Karachi of her own free‑will and Akbar Ali being the husband is entitled to the custody of his wife. Mr. Sirjees Nagi, learned counsel for the petitioner urged that Mst. Najma Kausar is a minor girl, as according to the school leaving certificate she was born on the 22nd of May 1955, wile according to the entry in the passport she was born in the year 1953 and on the basis of these entries he suggests that she is a minor girl.

5. The girl has appeared before me. By appearance she is not more than 14 years of see. In view of the documentary evidence as to the age I do not consider it necessary to get the girl examined by the doctor.

6. The main question for decision is, whether according to the Muslim Law the husband or the mother is entitled to the custody of minor wife, before she attains the age of puberty. After reviewing the law on the subject, I am of opinion, that according to the Muslim Law, the effect of the contract of marriage is to place the wife under the dominion of the husband but that notwithstanding her marriage, the right to the; care and custody of a minor girl belongs blot to the husband, but to the mother until she attains the age of puberty. In Bailie's Muhammadan Law at page 438 with reference to thy question of Hizanat of custody a, of girl, it is laid down that "so long as a girl who is married has no desire, her mother's right to her custody does nest cease till she is fit for matrimonial intercourse."

7. In the instant case, Mst. Najma Kausar is in her early teens. She has been tutored by Akbar Ali to express unwillingness to return to the house of her parents. She appears to be 13 years of age and is not fit for consummation. In any case she has not attained puberty. The lawful guardianship and custody of a Muslim girl who has not attained maturity is with the mother even as against the husband. To my mind where the female is a minor and is kept out from the custody of natural guardian against wishes, such detention is illegal, sac it is without the consent of tore person who is legally e‑titled to the custody of the minor. In the circumstances, it can be said in this case that Mst. Najma Kausar is "illegally detained" by Akbar Ali.

8. Excepting the bare statement of Mst. Najma Kausar nothing has been placed tin the record to show that she had married to Akbar Ali. If the marriage would have been solemnized at Karachi, as alleged by Mst. Nqjma Kausar, Akbar Ali would have produced that Nikahnama.

9. In the result I accept this petition. Mst. Najma Kausar is restored to her parents. A. E. Petition accepted.