P L D 1993 Lahore 549 (PLP)

This petition under Article 199 of 'the Constitution by Mst. Kishwar Zohra has arisen in the following circumstances: .2. The respondents, Asghar Ali and Mst. Zubaida Begum, are the petitioner's parents; they were separated by divorce some 13 years ago. It is stated that her mother has since re-married but she has all along lived with her. The respondent Asghar Ali made an application on 28-7-1988 under section 25 of the Guardians and Wards Act, 1890 (hereinafter to be called the Act). The application was contested by Mst. Zubaida Begum. The learned Guardian Judge by his order dated 7-5-1991 made an order for the return of the petitioner to the custody of her father Asghar Ali. It is stated that no appeal was preferred against that order. Some time before this petition, which was instituted in May, 1992, the father obtained a warrant for the arrest of the petitioner.

3. It is the petitioner's case that she has under the Islamic law attained the age of majority and has, therefore, ceased to be a minor or a ward within the meaning of section 25 of the Act and, therefore, the learned Guardian Judge had ceased to have the jurisdiction to order the petitioner's arrest. .

4. The prayer, therefore, is 'that "the order of the Guardian Judge handing over the custody of the petitioner to respondent No.2 dated 7-S-1991 be declared to have been passed unlawfully and in the meanwhile the warrant of arrest being executed by respondent No.4 be suspended till decision of this writ petition".

5. Section 25 of the Act enacts that "if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order of his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian". The expressions 'minor' and the 'ward' are defined in section 4 of the Act; the expression 'minor' means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his majority and the expression 'ward' means a minor for whose person or property, or both, there is a guardian. Under the Majority Act, section 3 minority ceases on the completion of the 18th year, unless a guardian of the person or property or both of the minor has been appointed before the minor has attained the age of 18 years, or the property of the minor is under the superintendence of a Court of Wards, in which case the age of minority is prolonged until the minor has completed the age of 21 years.

6. Learned counsel for the petitioner contended that by section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (to be referred to as the Shariat Act, 1962), all questions including the questions regarding guardianship and minority are now governed by the Islamic Law and, therefore, the definition of the expressions 'minor' and 'ward' in the Act have ceased to have application to Muslims. His contention further is that as the petitioner is more than 16-1/2 years of age, and has, therefore, attained puberty, she has ceased to be a ward or a minor under section 25 of the Act and the learned Guardian Judge had, therefore, no jurisdiction to cause her arrest and order her to be delivered into the custody of her father against her wish.

7. The contention must in my view succeed. Section 2 of the Shariat Act, 1962 as it originally stood provided: "Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usage or institutions including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of aa enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims." It has, however, been held that the words "subject to the provisions of any enactment for the time being in force" as they occurred in section , of the Shariat Act, 1962 were repugnant to the Injunctions of Islam and accordingly a direction was issued under Article 203-B of the Constitution that those words should be deleted. See Muhammad Ishaq v. Federation of Pakistan PLD 1981 FSC 278 and The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another PLD 1983 SC 273 (Shariat Bench). As we held in Muzaffar Khafi v. Mst. Roshan Jan and others PLD 1984 SC 394 the decision of the Supreme Court took effect from 30-6-1983 and the words in section 2 of the Shariat Act, 1962, namely, "subject to the provisions of any enactment for the time being in force" ceased to have effect. To put it differently these words are no more part of section 2 of the Shariat Act, 1962.

8. The effect of the deletion of these words from section 2 of the ShariaL Act, 1962 must be that in all questions enumerated in that section, including the questions regarding guardianship and minority, the rule of decision now is the Islamic law. Under that law the minority of a male or female terminates when he or she attains puberty and among the Hanafis or the Shias puberty is presumed on the completion of 15 years. (See paragraph 348 of the well-known treatise Mulla's Mohammedan Law, 1983 Edition published by Kausar Brothers). 9. 1 hold, therefore, that the petitioner is neither a ward nor a minor within the meaning of section 25 of the Act and, therefore, the learned Guardian Judge had no jurisdiction under that section to cause the arrest of the petitioner for being delivered into the custody of her father against her wish. Consequently the petition is accepted and the order of the learned Guardian Judge for the arrest of the petitioner for being delivered into the custody of her father Asghar Ali respondent is hereby declared to be without lawful authority and of no legal effect .'The parties are, however, left to bear their own costs. AA./K-81/L Petition accepted