1999 PLP 2472 (MLD)

(c) Criminal Procedure Code (V of 1898)

S. 491

Habeas corpus petition

Custody of female

Detenue female was aged about 18/19 years

Detenue was lodged in Darul Aman, so that she could compose herself and make a statement without being influenced and pressurised by anyone

Detenu made a statement in the Court that she did not want to go back to Darul Aman

Custody of detenue was not handed over to petitioner-- Detenue being major was set at liberty in circumstances. Mrs. Nasira lqbal for Petitioner. Muhammad Aslam Zar for Respondents. Malik Muhammad Matin Khokhar, A.A.-G. with Abdul Rauf Farooqi for the State. This habeas corpus petition had been moved and a bailiff was deputed to recover Mst. Kalsoom Akhtar. She was produced in Court and stated that she did not want to go back, either to Imam Bakhsh respondent No.1 nor to Muhammad Saeed respondent No.2 or for that matter any of the respondents, and thus, she was sent Darul Aman.

2. Learned counsel for the respondents 2 to 11 has submitted with vehemence that in fact petitioner Sajjad Haider is an accused person in case F.I.R. No. 17 of 1998 registered with Police Station Massan District Jhang and also submitted that he is not validly married to Mst. Kalsoom Akhtar and he could not have the custody of Mst. Kalsoom Akhtar, thus, she may not be allowed to go with him.

3. In support of his contention, he has placed reliance upon Shah Din v. State (PLD 1984 Lah. 137) and Farman Ali v. Abid Ali and others (PLD 1995 Lah. 364). The man thrust of his argument is that no young girl may be permitted to join a person whom she has married without the consent of her elders and that where Nikahnama is in dispute, a girl may not be allowed to joint her husband because this would mean encouraging the immorality which is opposed by our social and religious dictates. I fully understand that as far as our social and religious heritage is concerned, no girl is supposed to marry of her own. It is always appropriate and desirable that she should be married with the consent of her parents or any other guardian to whom her custody has been entrusted. But difficulty arises where a person who may be male or female has attained majority and vehemently refused to join the guardian apprehending danger to his or her life. In such circumstances, he or she, as the case may be, cannot be handed over to the guardian against his/her will especially when no more remains minor. The right of liberty has been conferred and guaranteed by the Constitution not only to the males but also to the females. It is very unfortunate that in our society, some of the females, may be on account of lack of proper upbringing or lack of love and affection, revolt against their parents or elders. They prefer to choose their own companions and on refusal or no acceptance, they desert the house of parents and elders. This growing tendency needs to be discouraged being violative of our social system and prevailing customs. But at the same time, a balance has to be maintained. Right of liberty is guaranteed by the Constitution without any discrimination and it cannot be taken away or denied when claimed through Court of law. The question of validity or otherwise of the Nikahnama in between Sajjad Haider and Mst. Kalsoom Akhtar cannot validly be answered or determined during the proceedings in a writ of habeas corpus or in petition under section 491, Cr.P.C. in the nature of habeas corpus. If person is major brought before the Court and states that he or she has been illegally or improperly detained by another person then he or she has to be dealt with according to law. Articles 10 and 15 of the Constitution of Islamic Republic of Pakistan guarantees the right of freedom of movement and prohibits detention of any person against his will. In the instant case, Mst. Kalsoom Akhtar has not only alleged that she has been detained by the respondents rather has expressed her genuine apprehension of physical harm to her in case she is forced to joint any one against her will. She has given her age as 18 years, as such, she has attained majority.

4. It may be mentioned here that with a view to ascertain her age, I got her medically examined. According to her medical report, she has been found to be aged between 18 and 19 years. She was lodged in Darul Aman so that she could compose herself and make a statement without being influenced and pressurized by anyone. Today her statement has been recorded wherein she stated that she does not want to go back to Darulaman. However, I .am not inclined to make an order to entrust her custody to the petitioner. She being major is set at liberty. This petition, as such stands disposed of. Order accordingly. Q.M.H./S-242/L