2009 P Cr (PLP)

KAZIM ALI MALIK, J.

Hamaira Bibi, pro forma respondent No.2, daughter of Muhammad Ali, respondent No.3, was married to Shafquat Ullah, petitioner, on 11-5-2009. On 1-6-2009 Shafquat Ullah, .petitioner, filed habeas corpus petition before the learned Sessions Judge, Nankana Sahib for recovery and production of his wife Mst. Hamaira Bibi from alleged illegal custody of her father Muhammad Ali, respondent No.3 and her brother Umar Farooq, respondent No.4. In his petition Shafquat Ullah asserted that he contracted marriage with Mst. Hamaira Bibi on 11-5-2009 and they both started living as husband and wife and that Muhammad Ali and Umar Farooq, respondents, took away Mst. Hamaira Bibi from his house on 29-5-2009 on some pretext and then detained her in their house against her wishes.

2. The learned Sessions Judge entertained the petition and issued a notice to Muhammad Ali and Umar Farooq, respondents, requiring them to produce Mst. Humaira Bibi in Court on 2-6-2009. The alleged detenue appeared before the Court of Session and made a statement on oath as under:-- "I am married with Shafquat Ullah, petitioner. I want to go along with my husband, petitioner." The respondents opposed the request of Shafquat Ullah, petitioner and the alleged detenue, which she laid before the learned Sessions Judge through her above said statement, with the plea that being minor of 13 years of age Mst. Humaira Bibi was not competent to contract marriage of her choice. In support of the contention, the birth certificate and school leaving certificate of Mst. Humaira Bibi had been produced.

3. The learned Sessions Judge could not form definite opinion qua the counter claims of the parties regarding the age of Mst. Humaira Bibi. She was, however, detained in Dar-ul-Aman against her wishes vide order dated 20-6-2009 awaiting determination of her age and validity of her marriage with Shafquat Ullah, petitioner, by a competent Court. The learned Sessions Judge has further observed vide order, now under challenge at the instance of Shafquat Ullah, that Mst. Humaira Bibi may leave Dar-ul-Aman, Sheikhupura to stay with her parents till determination of the dispute regarding her age and marriage, failing which she will have to remain in Dar-ul-Aman.

4. Learned Counsel for the petitioner has contended that being sui juris Mst. Humaira Bibi contracted a valid marriage with Shafquat Ullah, petitioner, with the consent and approval of her father Muhammad Ali, respondent and that the learned Sessions Judge detained her illegally in Dar-ul-Aman after her recovery from illegal confinement of Muhammad Ali, respondent.

5. On the other hand, learned counsel for the respondents has contended that being 13 years old Mst. Humaira Bibi was/is not competent to contract marriage of her choice with the petitioner herein or any one else.

6. I have heard both the sides and perused the record very carefully and minutely.

7. The learned Sessions Judge while detaining Mst. Humaira Bibi in Dar-ul-Aman observed that he lacked jurisdiction to record evidence in order to determine as to whether or not Mst. Humaira Bibi was sui juris and competent to lead life of her choice. A bare perusal of section 491, Cr.P.C. would show that the powers vested in the High Court and the Court of Session are concurrent to afford relief to the people, who are suffering illegal restraints by, private persons or the government agencies. The proceedings by way of habeas corpus are initiated in order to call upon a person having custody of the detenue to produce him and explain under what authority he holds the detenue in custody. If such authority is legitimate and in accordance with law the High Court or the Court of Session cannot interfere and if it is established that the custody is illegal then the detenue is set at liberty affording an opportunity to lead life of his/her choice. Keeping in view the counter versions put forward before the Court of Session and this Court, following important legal questions have arisen for determination: -- (i) Whether there was sufficient material before the learned Sessions Judge to decide that Mst. Humaira Bibi was adult/sui juris and competent to contract a marriage of her choice? (ii) Whether the learned Sessions Judge was competent to detain Mst. Humaira Bibi in Dar-ul-Aman against her wishes, particularly when she had been produced before him in a petition of habeas corpus? (iii) Whether there was sufficient and conclusive evidence before the learned Sessions Judge to prove that Mst. Humaira Bibi was legally wedded wife of Shafquat Ullah, petitioner? (iv) Whether Muhammad Ali, respondent, is estopped by his conduct to oppose the request of the petitioner?

8. Now I propose to answer these questions in the light of the available material and law of the land. The learned Sessions Judge could not form any opinion about the point in issue because father of the detenue was on one side and her husband on the other. Here I must say that status or relationship of the parties with the detenue was/is not sole criterion while deciding the question touching her liberty because the Court seized of habeas corpus petition is only concerned with the free will of the detenue. In the case in hand Mst. Humaira Bibi, alleged detenue, and Shafquat Ullah, petitioner, claimed to have contracted a valid marriage vide Nikah Nama dated 11-5-2009, wherein age of the bride Mst. Humaira Bibi had been recorded as 19 years. Haji Muhammad Ali, respondent, was estopped to say before the learned Sessions Judge that his daughter Mst. Humaira Bibi was minor and not competent to contract marriage with Shafquat Ullah because he himself attested the Nikah Nama as witness to the marriage of his daughter with Shafquat Ullah. During the course of arguments there was no answer to this question as to why Haji Muhammad Ali gave his daughter Mst. Humaria Bibi in marriage with Shafquat Ullah on 11-5-2009, when as per his changed version she was minor at that time. I failed to understand as to why this aspect of the matter escaped notice of the learned Sessions Judge.

9. Mst. Humaira Bibi appeared before this Court twice and claimed to have contracted valid marriage with Shafquat Ullah. Although, it was not difficult for this Court to form an opinion from her appearance that she attained puberty and majority much before contracting her marriage with Shafquat Ullah, but in view of vague observation of the learned Sessions Judge regarding her age, I got her medically examined by a Special Medical Board consisting of senior doctors of Services Hospital, Lahore for determination of her age. Under an order of this Court, Special Medical Board consisting of Medical Superintendent, Consultant Radiologist, Principal Dental Surgeon, Assistant Professor of Orthopedics, Senior Registrar Medical Special unit and Dr. Nuzhat Gul, Senior Consultant Gynecologist medically examined Mst. Humaira Bibi and unanimously opined that her age was about 17/18 years. When confronted with the opinion of the Board and Nikah Nama attested by Muhammad Ali, respondent, learned counsel for the respondents attempted to argue that the claim of marriage put forward by Humaira Bibi and Shafquat Ullah had been challenged by the respondents, therefore, Mst. Humaira Bibi was rightly detained in Dar-ul-Aman till resolution of the dispute of her marriage by the Court of competent jurisdiction. Reliance was placed on Muhammad Saffar v. Assistant Director Social Welfare and others 1988 SCMR 2087.

10. I have minutely gone through the precedent case and would say without ,any fear of contradiction that the facts of the case in hand and that of the precedent case are altogether different. In the precedent case Nikah Nama was not proved and there was nothing on record to show that her age was 18 years as mentioned in the Nikah Nama, whereas in the case in hand Mst. Humaira Bibi had been shown as 19 years old in the Nikah Nama by her respondent father. The Special Medical Board also found her 17/18 years old. Nikah Nama and the report of the Board have established that the detenue is adult, hence competent to contract marriage of her choice. The marriage between Shafquat Ullah and Mst. Humaira Bibi cannot be disputed for two reasons: First, Shafquat Ullah and Mst. Humaira Bibi stated before this Court with one voice and in a surefooted manner that being adult/sui juris they contracted valid marriage with their free will and consent on 11-5-2009. "Tasaduq-ul-Zojain" before this Court as well as before the Court of Session cannot be questioned by a third person. Secondly, Haji Muhammad Ali, respondent, attested the Nikah Nama as witness to the marriage of his daughter Mst. Humaira Bibi with Shafquat Ullah. Hence, it does not lie in his mouth to say that the marriage of his daughter with Shafquat Ullah is invalid.

11. Learned counsel for the respondents has also argued that the learned Sessions Judge did not confine Mst. Humaira Bibi and as a matter of fact she had been lodged in Dar-ul-Aman for her safe custody, which does amount to her illegal confinement. I am not in agreement with the argument. A major Muslim woman like a major Muslim man is entitled to the same rights and liberties. Mere fact that the father and brother of Mst. Humaira Bibi have chosen and decided on reconsideration to force her to live in desertion does not provide legal, social and moral ground for the Court of law to restrain her from leading matrimonial life of her choice. It is true that the Courts do not function in vacuum and while deciding such a question the moral/social aspect of the case is also taken into consideration, but not at the cost of fundamental rights of the people. Mst. Humaira Bibi did/does not wish to stay in Dar-ul-Aman. She was compelled to stay there under the impugned order for the only reason that her father refused to accept her marriage with Shafquat Ullah, petitioner, which had previously been approved and attested by him. Dar-ul-Aman has been established under the Directorate of Social Welfare, Government of the Punjab and is no doubt a welfare organization. It is a place where the females maltreated by the society or otherwise in distress can take refuge. Dar-ul-Aman is not a place of detention. To the hard luck of Mst. Humaira Bibi, the learned Sessions Judge recovered her from illegal confinement of her father Muhammad Ali, respondent and then himself detained her in Dar -ul-Aman for an indefinite period. It is naked assault on her fundamental right of liberty and the right to lead a life of her choice. The Court of Session is not possessed with powers and authority to regulate mode and manner of life of an adult person as it did in the case of Mst. Humaira Bibi.

12. At the cost of repetition it is noteworthy that Mst. Humaira Bibi was married to Shafquat Ullah with the consent of her respondent father. For the reasons best known to him, the respondent opted to challenge the validity of her marriage. In the circumstances the next question, which requires consideration is as to whether the female, who has attained the age of majority, can be treated as a chattel and handed over to the custody of one of the male members of her family against her wishes. Learned counsel for the respondents could not quote nor I could find any Qura'nic injunction or saying of the Holly Prophet (Peace be upon him) or any provisions of codified law or the case-law to the effect that a major Muslim girl should only live in the custody of her father or brother. In case the argument of learned counsel for the respondent is accepted then Mst. Humaira Bibi on account of her sex would be treated as a person under some sort of disability. I am unable to endorse the view of the learned Sessions Judge being offensive to Qura'nic Injunctions and law of the land.

13. In view of the above mentioned legal and factual position, I am bound to follow the Constitution and the law of the land. In the above circumstances I have been left with no other option but to hold that Humaira Bibi being sui juris is competent to lead life of her choice and no restraint can be imposed on her even at the instance of her father of brother. I, therefore, direct that she be released from Dar-ul-Aman forthwith enabling her to go wherever she likes. The petition stands disposed of in the above terms. N.H.Q./S-191/L Petition accepted.