P L D 1971 Lahore 139 (PLP)

2. As the detenu happened to be the daughter of the respondent, instead of deputing a Bailiff to recover her, it was thought proper to issue notice to the respondent to produce her in Court himself. He was duly served, but did not care to put in appearance and as a result, a Bailiff of this Court was deputed to recover the alleged detenu. She was so recovered and produced on 1st December 1969. The respondent also appeared. Statements of both Mst. Iqbal Parveen and her father Ghulam Muhammad Tasleem were recorded.

3. Mst. Iqbal Parveen, who gave her age as 18 years, stated that her father had turned out her mother about nine months earlier, after giving her beating. She returned to him about 10 or 15 days ago, but was treated in the same way and turned out. The detenu further deposed, that her father used to abuse and treat her cruelly and with the help of his landlord Atta Muhammad, intended to dispose her off and marry her to an old man, which she resented. At her request, the petitioner, who had come to know of the ill‑treatment of her father towards her, filed the instant petition. She next deposed, that after the receipt of notice for appearance in this Court, her father disappeared, leaving her in the house of her landlord Atta Muhammad, who misbehaved with her during the night. She further stated :‑ "My father is not interested in my welfare. I do not wish to live with him. I want to marry, but not with the old man to whom my father wishes to marry me. I would prefer to live at any other place, but not with my father."

4. Ghulam Muhammad Tasleem deposed, that his daughter Mst. Iqbal Parveen was 17 years, two months and 15 days old. He, however, admitted, that he had turned out his wife about 8 or 9 months ago and had no knowledge of her present where abouts. He added, that he turned her out, because she abducted Mst. Iqbal Parveen from his house without his permission. He admitted, that 8 or 10 days before his appearance in Court, his wife came back to him, but he refused to keep her. He further deposed, that his wife was a woman of immoral character. He admitted, that he had left the detenu in the house of his landlord Atta Muhammad, but added, that he was not aware, whether said Atta Muhammad had outraged her modesty.

5. After recording the statements of the detenu and her father on 1st December 1969 the summary of which have been reproduced above, I made the following order :‑ "In order to give the detenu further chance to think over, I direct that she be sent to Dar‑ul‑Aaman, and produce there from tomorrow."

6. On 2nd December 1969, I recorded further statement of Mst. Iqbal Parveen. She deposed, that she had thought over the matter and was still not inclined to live with her father. She stated :‑ "I would live with the petitioner, whom I consider to be my father, till such time that I marry of my own free will." She had no faith in her father and did not agree to live with him, even if he promised to marry her according to her wishes. During the course of arguments on that day, it came to light, that Mst. Iqbal Parveen wished to marry one Malik Muzaffar Hussain. Thus with the consent of the parties, she was sent to Dar‑ul‑Aaman, to be kept there till such time, but not more than one week, that her marriage was arranged. The case was fixed for hearing on 9th December 1969.

7. Since the marriage of Mst. Iqbal Parveen had not been performed till 9th December 1969, and her father claimed, that she was less than 18 years of age, the case was adjourned for arguments on the question, as to whether, she should be set at liberty or be made over to her father, till she actually entered into a marriage. Mst. Iqbal Parveen was sent to Dar‑ul‑Aaman, wherefrom she has been produced today.

8. When the matter came up for hearing today, Muzaffar Hussain, who intended to marry Mst. Iqbal Parveen, put in appearance and produced deed of Nikah Exh. "A". its perusal reveals, that he was married to Mst. Iqbal Parveen on 9th December 1969. His statement was, therefore, recorded and he deposed, that he married Mst. Iqbal Parveen on 9th December 1969, in Dar‑ul‑Aaman, Lahore, after divorcing his previous wife, whom he divorced on 2nd December 1969. Thereafter, the statement of Mst. Iqbal Parveen was recorded and she confirmed the statement made by Muzalfar Hussain.

9. The first contention, which has been raised on behalf of the respondent is, that Mst. Iqbal Parveen being less than 18 years of age could not have married, except with the consent of her father, who was her natural guardian. In support of his contention, that his daughter was less then 18 years of age, the respondent produced an affidavit, which shows that Mst. Iqbal Parveen was born on 17th November 1952 at Rawalpindi. Therefore, the contention of the respondent, that his daughter is yet less than 18 years of age, appears to be correct. However, for the purposes of entering into a marriage, the fact that Mst. Iqbal Parveen is less than 18 years of age, is not an impediment in her way. Section 251 of the Principles of Mohamedan Law by D. F. Mulla, Fourteenth Edition. provides, that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The term `puberty' has been a contract of marriage. The term `puberty' has been illucidated by way of explanation appended to this section which is as follows :‑ "Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years." Since Mst. Iqbal Parveen is undoubtedly more than 15 years of age, I am of the opinion, that she could enter into a valid g marriage without the interference of the respondent, her father.

10. The next contention on behalf of the respondent is, that the so‑called marriage between Mst. Iqbal Parveen and Muzaffar Hussain is just a farce, inasmuch as, it has been performed during the subsistence of an existing marriage of Muzaffar Hussain. It is contended precisely, that under the Muslim Family Laws ordinance, there is a prohibition to such a marriage, except with the previous permission in writing of the Arbitration Council. The contention on the face of it seems to be correct. However, it would not affect the present proceedings, because section 6 of the Ordinance, which deals with polygamy, reveals that if any man contracts another marriage without the permission of Arbitration Council, he shall on conviction upon complaint, be punishable with simple imprisonment, which may extend to one year or with fine which may extend to five thousand rupees, or with both. The Ordinance, therefore, only penalises the person in respect of a marriage celebrated in contravention of the provisions of the Ordinance by making him liable to imprison ment or fine or both but does not invalidate the marriage itself. In coming to the aforesaid conclusion, I am justified by a dictum of the Supreme Court in the case of Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yousaf (PLD 1963 SC 51). Mr. Justice S. A. Rahman in paragraph No. 36 of the judgment, while dealing with the implications of section 6 of the Muslim Family Laws Ordinance, was pleased to observe :‑ "The Ordinance of course, only penalises the person in respect of a marriage, celebrated in contravention of the provisions of the Ordinance by making him liable to imprisonment or fine or both but does not invalidate the marriage itself."

11. In view of the aforesaid decision of the Supreme Court, whatever be the criminal liability of the husband under the Muslim Family Laws Ordinance, I cannot hold, that the marriage itself is invalid.

12. For the aforesaid reasons, therefore, the petition is allowed and Mst. Iqbal Parveen is set at liberty. A. E. Petition allowed.