2014 PLP 1494 (MLD)

SADIQ HUSSAIN BHATTI, J.

The petitioner Mst. Safia has filed this petition, wherein she has stated that about one year back she married with Ahmed Khan on 12-4-2012 and out of the said wedlock, she gave birth to a baby girl namely Komal. She also produced a copy of Nikahnama. It is stated that respondent No.6, who is her mother, was not happy with her marriage and wanted to marry her against her wishes with some other person. She further stated that at the instance of her mother, the official respondents are causing harassment to the petitioner and her husband Ahmed Khan. Finally she prayed that official respondents may be restrained not to cause any harm to her as well as her husband. Notices were issued to the respondents. The official respondents appeared and filed their comments in which they have denied the allegations levelled against them and stated that dispute is between the private parties and they have nothing to do with the same. It is contended by Mr. Naresh Kella, the learned counsel for the petitioners that she being a sui juris, has contracted marriage with Ahmed Khan with her own free will which has annoyed respondent No.6 and she has set up one Qadir Ali to prove Mst. Safia was already married with him and she was never divorced nor she obtained Khulla from the competent Court of law. In fact this is all after thought and the Nikahnama is managed one. On the other hand, Mr. Agha Kashif Hussain, learned counsel for respondent No.6 has filed counter affidavit and stated that petitioner was previously married with Qadir Ali alias Nadir Ali on 3-3-2012 and she is legally wedded wife of Qadir Ali and stated that said marriage is still in existence as neither the petitioner has been divorced by Qadir Ali nor she obtained Khulla from him. He produced the copy of Nikahnama which shows that petitioner contracted marriage with Qadir Ali on 3rd March, 2012 in Union Council Darya Khan Mari. It is further contended that respondent No.6 (mother of the petitioner) filed a heabus corpus petition and a criminal complaint (copies of both the above orders are not produced). It is further contended that petitioner has committed an offence of adultery therefore, she may be dealt with in accordance with law. Lastly he contended that in such circumstances, this Court on 14-3-2013 ordered that petitioner cannot be allowed for the time being to live with Ahmed Khan and the custody of the petitioner along with her minor baby was handed over to Darul Aman till further orders. Syed Madad Ali Shah, learned amicus curiae contended that marriage between the petitioner and her husband Ahmed Khan took place on 2-4-2012 whereas the Nikahnama produced by respondent No.6 that petitioner married with Qadir Ali on 3-3-2012 shows that during that period, her previous husband Qaidr Ali neither made any complaint nor lodged any F.I.R. of abduction of her wife and even nor the petitioner Mst. Safia filed any case for jactitation of her marriage. It is further contended that petitioner is a sui juris and she cannot be detained in Darul Aman against her wishes and she may be set at liberty to go wherever she wants. He also relied upon the cases reported as Mst. Samina Akhtar v. Shah Muhammad and 8 others (2000 PCr.LJ 1150) and Hafiz Abdul Waheed v. Mst. Asma Jehangir and another (PLD 2004 Supreme Court 219). Mr. Mukhtar Ahmed Khanzada, learned State Counsel also supported the arguments advanced by learned amicus curiae. Heard learned counsel for the parties and perused the record. Initially the petitioner approached this Court for providing protection from respondents 3 to 5 who were causing harassment to the petitioner at the behest of her mother (respondent No.6). Respondent No.6 produced a Nikahnama that petitioner was previously married with one Qadir Ali on 3-3-2012 which has totally been denied by the petitioner in her statement recorded before this Court today and she stated that she is legally wedded wife of Ahmed Khan and she has never married with Qadir Ali. The record reveal that she contracted marriage with Ahmed Khan on 2-4-2012 almost after one month and all along she was living with her husband Ahmed Khan and during the wedlock she gave birth to a girl namely Komal. During that period, no F.I.R. was registered by Qadir Ali nor Mst. Safia filed any case for jactitation of marriage. I have also perused the case-law relied upon by learned amicus curiae, wherein it has been held that no lady who is a sui-juris can be detained in Darul Aman against her wishes which is illegal and improper. Accordingly, I dispose of this petition with direction that the petitioner may be set at liberty and she is allowed to go wherever she wants. The official respondents are directed not to cause any type of harassment to the petitioner and her husband Ahmed Khan. However, both the parties are at liberty to approach the proper forum for redressal of their grievance as this Court in its Constitutional jurisdiction cannot embark upon the jurisdiction of Family Court which is competent to decide about the existence or non-existence of the marriage or validity and invalidity of the Nikahnama. The petition stands disposed of in the above terms. MWA/S-46/K Order accordingly.