2022 PLP 134 (CLC)

ALI ZIA BAJWA, J.

Grievance of the petitioner brought forth through the instant Constitutional petition under Article 199 of the Constitution of Pakistan, 1973 (hereinafter 'Constitution') is that she being sui juris and adult, out of her free will and consent, without any duress and compulsion, while exercising her Islamic/constitutional right, entered into bond of marriage with one Asif Shehzad on 07.07.2021 however, respondent No.2 is illegally harassing the petitioner and her spouse on the behest of respondents Nos.4 to

7. Prayer has been made for an appropriate direction to respondent No.2 not to cause unwarranted harassment.

2. Filing of identical petitions by the women after tying the matrimonial knots with men of their choice against the will of their kinfolks is a widespread phenomenon. The most distressing aspect of such petitions is that these are frequently filed, as preventative measure to confront an illusory apprehension, against the close blood relatives like real fathers, brothers and even mothers. But in some cases, a well-founded threat to the lives of newly wedded couple, actually exists.

3. Article 9 of the Constitution has strenuously vouched for the protections of right to life of every person and it is the duty of the Constitutional Courts to protect and safeguard all the fundamental rights provided and guaranteed under Constitution. Therefore, it remained a consistent practice of this Court to issue appropriate directions to secure right to life of such petitioners and also provide safeguards to their matrimonial lives.1 Some of the instances where this Court has issued such directions are provided below:- It was held in Mst. Farzana v. Station House Officer, Police Station, Darya Khan District Bhakkar and 2 others - 2005 YLR 1023 "The respondent No.1 Police Officer exercises his powers and functions under the law. He cannot use his authority as instrument in affecting the course of private disputes that are outside any registered criminal case or investigation in his record. The present case on the other hand involves a civil dispute. It is accordingly directed that if the petitioner and her husband are not required for investigation in any criminal case then respondent No.1 shall not illegally harass them." Similar direction was issued in Tahira Bibi v. SHO and others - PLD 2020 Lahore 811 in following terms: "In view of Articles 9, 14 and 35 of the Constitution of Islamic Republic of Pakistan, 1973, 'The State shall protect the marriage, the family, the mother and the child' the same is granted and the official respondents are hereby directed to remain within the four corners of law and restrain themselves from causing any illegal harassment to the petitioner in any manner whatsoever"

4. It is a settled law by now that an adult sui juris Muslim girl can marry a person of her choice without the consent of her Wali. In Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another reported at PLD 2004 Supreme Court 219, august Supreme Court of Pakistan, after referring plethora of judgments on the subject, has expounded this principle in paragraph No. 10 as infra: "As noted earlier, there are number of judgments of the Federal Shariat Court specifically holding that an adult sui juris Muslim girl can contract a valid 'Nikah' on her own and consent of Wali/guardian/relations is not needed"

5. Under Islamic law both male and female have the right to contract marriage with their own free will and their matrimonial life is protected under Article 35 of the Constitution. It is common practice of our society that whenever a marriage is contracted without the approval of families, close relatives make every possible effort to break that wedlock. It is pertinent to mention that any of such attempts are violative of Articles 9 and 35 of the Constitution. Under Articles 9 and 35 of the Constitution, it is bounden duty of State to protect the marriage, life and liberty of legally wedded couple. It was held by the Federal Shariat Court in Riaz Begum Alias Razia's Case2 that Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973, safeguards, guarantees and protects the right of marriage as it is settled principle of law that Muslim adult female being sui juris can exercise her right to marry without the consent of Wali. Such a sacred relationship founded by way of religious contract, entered into by two individuals to establish a home and start a family life, which is fundamental and primary foundation of society, should not be interfered with. It is therefore incumbent upon all state functionaries to act strictly in accordance with law and not to transgress their lawful domain to disturb or disrupt the family life of a person without legal justification. In this regard, I am fortified by the decision of this Court in Mst. Sajida Bibi's case3, where this Court has categorically held that: "In respect of a bona fide marriage validly contracted and in consequence whereof the spouses are living together, the police or for that matter any other functionary of the state has no right to disturb the marital life of the couple. If a complaint is made to the police then, in given circumstances, the police can and should ascertain whether a valid marriage has taken place or not. Once the police officials come to know that a valid marriage has taken place, then brushing aside any other social consideration, they must not act to disrupt or otherwise interfere in the marital life of the spouses. They should not try to snatch the wife from the husband and deliver her to the custody of her parents without her wishes. Such a function should be left to the Courts, which have the exclusive jurisdiction in the matter and which can be approached by aggrieved persons for redress of their grievance" However, in order to prevent the abuse of such directions, the Court should be extra cautious and watchful while issuing such directions and should ensure the presence of wedded couple before the Court, especially the female petitioner in order to rule out that any such petition has been filed for some ulterior motive other than what is prayed for. It should also be ensured that a valid marriage exists and petition has been filed voluntarily without any pressure or undue influence on the female petitioner. In the present case petitioner and her husband, present before the Court, are legally wedded wife and husband as their Nikahnama has been placed on the record and they own it. The Court has ensured the identity of petitioner and her voluntariness to file this petition.

6. Learned A.A.G. while entering appearance on Court's call states that he has no objection, if a direction is issued to respondent No.2/public functionary not to cause illegal harassment to the petitioner and her spouse.

7. Be that as it may, respondent No.2 is directed to remain within the four corners of law and desist from causing harassment in illegal manner to the petitioner or her spouse. It is, however, made clear that this direction shall not impede the course of any legal proceedings pending or to be initiated in future.

8. With these observations the instant petition stands disposed of. ZH/S-89/L Order accordingly.