P L D 1975 Lahore 234 (PLP)

A. A.-G. for Respondents. Date of hearing : 18th July 1974. Zaffar Khan, petitioner moved this application alleging that Mst. Shaheena who was his wife had been lodged in Darul Aman against her wishes by an order dated the 25th of May 1974 of Mr. Muhammad Aslant Bhatti, a Magistrate of the First Class, Lahore. The petitioner stated in the application that Mst. Shaheena was a dancing girl, that he used to visit her in the ShahiMohalla and that they developed liking for each other. He further averred that .on the 25th of March 1974 she joined him in Rawalpindi and told him that her father was adamant to pass her on to someone else, which compelled her to leave the house of the parents. According to the petitioner they entered into a contract of marriage and this fact was also reported in the Press. Mst. Shaheena being afraid of her father filed a complaint under section 107 ,against him on the 8th of March 1974. Upon a report by the father of Mss. :Shaheena that his daughter who was about fifteen years of age had been (kidnapped a case under section 363/366, P. P. C. was registered at Police Station Tibbi against the petitioner. He was, however, admitted to bail before arrest, but the police took Mst. Shaheena in custody and produced her for statement under section 164, Cr. P. C. before the Magistrate who recorded her statement that she married the petitioner of her free will. The Magistrate ordered that she should be lodged in Darul Aman. This is an application to challenge the order of the Magistrate as one of unlawful detention of the girl.

2. Mst. Shaheena was born, according to the entries in the birth register, on the 15th of March 1959. She was just a little above 15 years when she eloped with the petitioner and they married. The report of the Radiologist is also to the same effect. It is provided in the Child Marriage Restraint Act 1929, that whosoever contracts a marriage with the female below the age of 16 years he will be guilty. It, however, does not lay down that the marriage so performed is invalid, nor has it ever been held that such a marriage is void ab anitio. If a person takes away a girl below the age of sixteen from the lawful custody of her guardian without his consent, he is guilty of kidnapping, and the consent of the girl and the intention of the accused to such an event have no relevancy. There is no punishment provided for the female in these Statutes. A question, however, arises that if Zaffar and Shaheena had contracted the marriage and the latter was a willing party having given consent of her free will, would the marriage be valid? The Muslim law of marriages, dower and divorce is applicable in all cases where the parties are Muslims. Under the Majority Act a person attains the majority at the age of eighteen and in a case a guardian is appointed of such person by the Court, at the age of twenty-one, but the Act itself excludes its application in so far as the operation of personal law in respect of marriage, divorce and dower is concerned. Under the Muslim Law the competence of a girl to enter into al contract of marriage is dependent on the attainment of puberty. Puberty is presumed at the age of fifteen. At page 93 of Fatawa Alamgiri, Vol. V, it is stated: "The lowest age of puberty according to its natural signs, is 12 in males and 9 in females; when the signs do not appear both sexes are held to be adult when they have completed their 15th year." In Bindu v. Mst. Bugli (73 P R 1909 ) it was observed by Rattigan and Shah Din, JJ. that marriage under Muslim law is essentially a civil contract and that when a Muslim female attains the age of puberty she becomes sui juris in the eye of her personal law. The same view was taken in Munshi v, Mst. Alam Bibi (A I R 1932 Lab. 280) and Sm. Joygun Nassa Bibi v. Muhammad Ali Biswas (A I R 1938 Cal. 71). In Mst. Ghulam Sakin.z v. Falak Sher (P L D 1949 Lab. 75) it was held that the marriage under Muslim law is in the nature of a contract and, as such, requires the free and unfettered consent of the parties to it. Normally speaking, a man and a woman should conclude the contract between themselves but in the case of the minors, i.e., who have not attained the age of majority, as recognised by Muslim Law is presumed in the absence of any other evidence to the contrary, on com pletion of the age of fifteen years. In Behram Khan v. Mst. Akhtar Begum (P L D 1952 Lab. 548) it was observed by S. A. Rahman, J., that the Muslim female on attaining the puberty, which is presumed to have been attained at the age of fifteen years, can enter into a contract of marriage. The law was exhaustively ,considered by Mr. Justice A. R. Changez in Allah Diwaya v. Mst. Kammon Mai (P,L D 1957 Lab. 651) and he observed : "The principle which can be deduced from the above-quoted passages, most of which have been copied out by the author from Fatawa Alamgiri and Hedaya, is, that a girl even if she has not attained puberty but is possessed of discretion and understanding can enter into contract of marriage. But it will be dependent for its operation on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining majority and ratifying the contract." According to Muslim Law a female has the capacity to contract marriage on attaining the age of puberty, and puberty is presumed at the age of fifteen.

3. I summoned Msr.shaheena from Darul Aman, where she remained for about two months, and had been meeting her parents under my orders..' She, in her statement, reiterated that she married the petitioner of her own free will and was the wife of the petitioner. She further stated that before her marriage she had been forced by her parents to live with some man. She appeared to be absolutely mature in looks and talk and there was no, doubt about her having attained puberty. In Mst. Bakhshi v. Bashir Ahmad (P L D 1970 S C 323) N, a Muslim girl aged more than 15 years elopsed with B, and contracted marriage with him. On girl's mother report of kidnapping under section 363, P. P. C., the police recovered the girl and handed her over to her parents. B' filed a habeas corpus petition in the High Court alleging that N had been held in wrongful detention and claimed her custody, being her husband, N on being produced in the High Court stated that she had married B of her own free will and wanted to live with him. The High Court set her at liberty to follow her own inclination. The matter was taken in appeal to the Supreme Court which upheld the order of the High Court with an observation that N having attained puberty under the Mohammadan Law could validly enter into a contract of marriage and that the provisions of Child Marriage Restraint Act of 1929 did not affect the validity of her marriage with B. In Mauj Ali v. Safdar Hussain (1970 S C M R 437) it was held that a girl above the age of 15 years could enter into a contract of marriage if it was brought about with free consent, notwithstanding the provisions of Child Marriage Restraint Act of 1929. Consequently, the order -of the High Court allowing then minor wife to go with the husband was upheld by the Judges of the Suprerne Court.

4. Learned counsel for the respondent, however, relied on section 2(vii), of the Dissolution of Muslim Marriages Act, 1939, wherein it is laid down: - "

2. A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely :- (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years. .. He contended that it was because of this provision that the view taken by the Courts has been that a girl attains the age of puberty at the age of fifteen, and that since this provision has been amended by the Muslim Family Laws Ordinance, 1961 inasmuch as the word "fifteen" has been substituted by the word "sixteen", Mst. Shaheena cannot be presumed to have attained the age of puberty before the age of sixteen. I am unable to accept this contention. It was not based on the Act of 1939 that the age of puberty was presumed at fifteen but was for the reason that it was the view of all the Muslim Jurists that a girl is presumed to attain puberty at the age of fifteen unless it is proved to the contrary. The aforementioned provision in the Muslim Family Laws Ordinance only enables a girl to exercise the option of puberty when she attains the age of sixteen. It does not lay down that she attains puberty at that age. 5. 1f a minor below the age of sixteen is removed by some person from the lawful custody of his guardian, such person may be guilty of an offence under section 363, Pakistan Penal Code, or it may constitute an offence under the Child Marriage Restraint Act, 1929, but cannot render the marriage invalid if the minor had attained puberty.

6. Mst. Shaheena was more than fifteen when she contracted marriage; with the petitioner. She had attained puberty and was, therefore, competent to contract marriage. She had abandoned her guardian with no intent to' return. No restraint can be placed on her movements. The order of the Magistrate directing that she should be lodged in Darul Aman was 1, therefore, without lawful authority. She is permitted to go with her husband, who, in the circumstances, has the right to her custody. The petition is disposed of accordingly. K.B. A. Order accordingly.