1973 PCr (PLP)

The petitioner, Abdul Latif, has come to this Court under section 491, Cr. P. C. and has prayed for, the issue of "a writ of habeas corpus".

2. The facts giving rise to this petition are these. On the 6th of February, 1970, Mst. Balquis of her own free will entered into Nikah with Abdul Latif. The marriage was solemnized and registered with the Nikah Registrar Ward 'D', Tando Allahyar, District Sanghar. A copy of the Nikahnama has been placed on the record. It seems that this marriage was solemnized against the wishes of the parents of the girl. Therefore, they reported the matter to the local police and a case under section 363/366, P. P. C. was registered at Police Station Shahdadpur, District Sangbar. Later on, Muhammad Shafi respondent, who is a relation of Mst. Balquis secured her from her husband and wanted to shift her to her parents. Therefore, the petitioner approached this Court and on 31st of March, 1970, my learned brother M. A. Khan, J. detailed a bailiff to recover Mst. Balquis, and to produce her in this Court. Notice was also issued to Muhammad Shafi. On the 2nd of April 1970, the learned Judge recorded the statement of Mst. Balquis, who stated that her father was alive and that she married Abdul Latif of her own free will and shifted to Chak No. 18/1-L, Tehsil Okara, District Sahiwal, where they were staying as man and woman. She stated that Muhammad Shafi was her first cousin and was detaining her in order to restore her to her father. She stated that she got herself medically examined, at Mlrpur Khas and according to the Medical Certificate of the doctor she was between 17/18 years of age. She said that she appeared before the Resident Magistrate, Tando Adam, and later on entered into marriage with Abdul Latif. On 2nd April 1970 the learned Judge did not decide the petition and issued notice to Muhammad Siddiq for the 17th of April 1970 and allowed Mst. Balquis to accompany Abdul Latif on his furnishing security in the sum of Rs. two thousand with an undertaking to produce her on every date of hearing in this Court. Today, the petition was laid before me. I have recorded the supplementary statement of Mst. Balquis in the presence of her father Muhammad Siddiq. She reiterated her earlier statement and stated that she voluntarily entered into Nikah with Abdul Latif and her marriage had been consummated and that he had not abducted or induced her to intercourse with him and stated she wanted to go with her husband.

3. According to Muslim Law the minority of a male or female terminates when he or she attains puberty. Puberty is presumed on the completion of the 15th year, according to the law by which the parties are governed. Under the Majority Act of 1875, minority ceases on the completion of the 18th year. Section 2 of the said Act, however, makes an exception in matters relating to marriage, dower, divorce and adoption. Thus for the purposes of the marriage the rule of Muhammad Law will apply according to which any person who has attained puberty is entitled to act on attaining the age of fifteen years. In the case in hand, Mst. Balquis at the time of the alleged marriage was 17/18 years of age. She has stated that the marriage had bee consummated. As such, the applicant, who is husband of Mst. Balquis is entitled to the custody of his wife against all other persons and the writ petition of habeas corpus is available to him for the purposes of regaining the custody of his wife, if she is wrongfully detained by anyone without her consent.

4. The result is that the petition is accepted, Mst. Balquia is set at liberty to go wherever she likes. She has expressed her desire to go with her husband and I am o the view there is nothing to stop her from doing so.

5. It has transpired during the proceedings that a case under section 363/366, P. P. C. has been registered against the applicant The statement of Mst. Balquis shows that no force or fraud had been practised on her that she had married Abdul Latif of her own free will. Therefore, no case under section 363/366, P. P'. C. is made out. In the circumstances, the Superintendent of Police of the district would see that no mock prosecution is instituted against Abdul Latif. Mahboob Ali, Sub-Inspector, at this stage, stated that on the complaint of Muhammad Siddiq, father of Mst. Balquis, the Ilaqa Magistrate had issued warrant against Abdul Latif. In view of the foregoing discussion the operation of the warrant issued by the Magistrate is suspended subject to the petitioner's furnishing bail in the sum of Rs. 1,000.00 (one thousand) with one surety in the like amount to the satisfaction of Mahboob Ali, Sub-Inspector, who is investigating this case. In view of the observations made in this order it would be expedient in the safe administration of justice that the Magistrate concerned may invoke the provision of section 253 (2), Cr. P. Code in the complaint case before him. A copy of this order alongwith copies of the statements of lust. Balquis be transmitted to the Superintendent of Police, Sanghar. Petition accepted. Petition accepted.