P L D 1962 (W (PLP)

FARUQUI, J.‑This is a petition for a writ of habeas corpus under Article 2(4) of the Post Proclamation Order I of 1958. The material facts are these : The detenue in this case is Mst. Shagufta Parween who is the daughter of the Respondent No. 1, Mirza Muhammad Amin, who originally belonged to Jhelum but was residing at Quetta at the time of the incident in question. The peti tioner Mushtaq Ahmad, son of Shaikh Muhammad Ramzan, aged about 22 years, also belonged to Jhelum and is related to the wife of Mirza Muhammad Amin. He was studying in the Government College, Quetta and Shagufta Parween was a student of the St. Teresa's High School, Quetta. It is the case of the petitioner that he and Shagufta Parween were both residing at Quetta in the house of a common relative and there they developed a love affair. A few months before the present incident a proposal of marriage was taken by the boy's father to the father of the girl which was rejected. On 8‑11‑61 Shagufta Parween obtained a certificate from Dr. Razia Sajjad of the Civil Hospital, Quetta to the effect that she appeared to be about 18 years of age. On 2‑12‑61 the petitioner and Shagufta Parween both came to Sukkur from Quetta where the girl made a statement before a Magistrate and thereafter they both went to Kashmore in Khairpur District where the boy is said to have a Petrol Pump business, and there they were married on the same day and their marriage was registered under the Muslim Family Laws Ordinance, 1961. Exh. B is a certified copy of the nikahnama which is entered in the register in Form No.

2. In this also the age of the girl is shown as of 18 years. After this the petitioner and the girl lived as husband and wife for about three weeks when, according to the petitioner, the father of the girl came to Kashmore and persuaded him to let the girl go to Quetta upon a promise that she would be restored to him. In the meantime, it appears that upon the report of the father the Quetta police had registered an offence under section 366, P. P. C. The girl did not return to the petitioner so that he moved an application on the 8th of January 1962 before the District Magistrate, Quetta‑Pishin at Quetta under section 552, read with section 100 of the Criminal Procedure Code, praying that Shagufta Parween be set at liberty. The girl was produced in the Court of the District Magistrate on the 10th of January 1962 and was examined on solemn affirmation. In that statement she said that she had been born in Jhelum in the year 1940 and as her grand father had refused the proposal of marriage which had come from the petitioner she wrote a letter to him upon which he came to Quetta and they together went to Sukkur and got married at Kashmore. A copy of the school leaving certificate was produced, according to which her date of birth was shown to be 4th December 1940. The father of the girl, however, produced a copy from the register of births of the Municipal Committee, Jhelum from that (sic) it was urged that the girl was born on the 5th of November 1946. In this situation the learned District Magistrate passed an order on 10‑1‑62 saying that since the date of birth of the girl was disputed, until final verification she was directed to be given back to the custody of her father Muhammad Amin, The matter next came up on the 7th of February 1962. The police produced an attested copy of an entry from the register of births of the Municipal Committee at Jhelum which was similar to the copy which had been produced earlier by the father. He also stated that Mushtaq Ahmed had already been challaned under sections 363/366, P. P. C. Then some arguments were heard and the matter was postponed to 9th February 1952, on which date the father of the girl was present but his counsel not there and so the case was postponed to the 10th of February 1962 but Muhammad Amin was directed to produce the girl IV Court on the 10th of February, 1962. On that day the girl was not produced, and it is the case of the petitioner that the orders of the Court were deliberately flouted in this respect because it was apprehended that the District Magistrate was going to direct the release of the girl from the custody of the father. However, on that day again prolonged arguments were advanced by both the parties, and soon after these were concluded the counsel for Muhammad Amin moved an application notifying the intention to apply for the transfer of the case and praying for adjournment. This was granted and the case was adjourned for 3 weeks. The learned District Magistrate also directed that a notice be served upon Muhammad Amin to show cause as to why action under sec tion 3 of the Contempt of Court Act not be taken against him as he had disobeyed the order of the Court in regard to the production of the girl. It was then that the present petition for a writ of habeas corpus was moved in this Court by Mushtaq Ahmad on the 15th of February 1962, and upon a rule nisi having been issued Shagufta Parween was produced In Court on 22‑2‑

62. On that day the girl was examined In Court and she stated that she was not pre pared to go with her father. Mr. Z. H, Lori, the learned counsel for Muhammad Amin, sought an adjournment of 10 days to enable him to receive full instruction in the matter and this was granted. Meanwhile the girl was lodged in the St. Lawrence Convent Karachi and both the petitioner and the father were warned not to communicate with her. The matter then came up before us on 5‑3‑62, some more documents having, in the meantime, been filed regarding the age of the girl. We do not, however, find it necessary to decide the question of the age of the girl in these proceedings and so it is not necessary to deal with these documents. In these proceedings we decided to proceed with the matter upon the admission of the father, according to which also the girl was above i5 years of age on the date when she got married to the petitioner. Mr. Lori put a few questions to the girl in cross-examination but she adhered to the version of her age given by her earlier in this Court. She further stated that she wanted to go with the husband and not with the father and that after her marriage she and the petitioner had lived at Kashmore as husband and wife.

2. 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 Muhammadan Law must apply in this case, according to which any person who has attained puberty is entitled to act in the matter of marriage on attaining the age of 15 years. Reference may be made to para. 348 of Mulla's Muhammadan Law, 15th edition, page

290. It is true that a female under 16 years of age comes within the definition of child and a male above 18 years of age who contracts a child marriage is liable to be punished but there is nothing n the Child Marriage Restraint Act which affects the validity of such a marriage. The validity of the marriage in the present case must be determined according to the rule of Muhammadan Law and according to that law that marriage is valid as Mst. Shagufta Parween even according to her father was more than 15 years of age on the date of marriage and must be presumed to have attained puberty. The Child Marriage Restraint Act merely punishes the male for contracting a marriage with a "child" but it does not render the marriage invalid. This was so held even in a case of a Hindu marriage by the Allahabad High Court in a decision reported in Moti v. Beni (A I R 1936 All. 852). Mr. Lari, the learned counsel for Muhammad Amin, conceded this point. Now, even when the wife is a minor the Court has no power under the Guardians and Wards Act to appoint a guardian of her person unless it was of the opinion that the husband was an unfit person in that regard : (See Mulla s Commentary on Muhammadan Law, 15th edition, page 295.)

3. Mr. Lori, however, put forward two contentions before us. Firstly, he urged that the custody of the girl had been given to the father by the order of the District Magistrate, Quetta, and, therefore, no question of unlawful detention arose. . 1t was next urged that the marriage between the petitioner and Mst. Shagufta Parween constituted an offence under the Child Marriage Restraint Act and this Court should not grant a writ of habeas corpus in order to encourage a felony. He was supported in this stand by Mr. Abdul Kadir Shaikh, the Assistant Advocate‑General who appeared for the State.

4. As to the first contention, it has to be noted that the District Magistrate, Quetta had given the custody of the girl to the father merely as an interim measure upon the ground that the question of age was in dispute. Later on, however, when it was urged before him that there had been a valid marriage between the petitioner and the girl, there is sufficient material on the record of the proceedings before him to indicate that he was inclined to direct that the girl be released from the custody of the father. It was for this reason that he directed the production of the girl. The father forestalled such an order by not producing the girl, and when after arguments were heard the Magistrate was about to pass an order an intimation of an intention to move a transfer appli cation was given and further proceedings were got stayed. It may be mentioned that this transfer application was never made and the District Magistrate also issued a notice of contempt in regard to the disobedience of his order. We cannot agree that the father can seek refuge under the earlier order of the Court whereby the interim custody of the girl had been given to him when he disobeyed the subsequent order of the Court by failing to produce the girl In Court. From that point of time he cannot claim that be held the custody of the girl in pursuance of the order of the Court, and considering that the girl, both before the District Magistrate and before us clearly stated that she did not want to c go back to the father, it must follow that she was being held against her will. Her detention, therefore, must be held to be unlawful.

5. As regards the second contention it has to be noted that a writ of habeas corpus is a writ of right though it may be that it is not granted as a matter of course. In Halsbury's Laws of England, Vol. II, 3rd edition, page 34, para. 60, It is stated that‑

"a husband is at common law entitled to the custody of his wife against all other persons, and the writ of habeas corpus is available to a husband for the purpose of regaining the custody of his wife If she is wrongfully detained by anyone from him without her consent." It has also to be noted that the writ petition before us is directed for the purpose of the release of the girl from a custody in which she had been kept against her will. The writ is, therefore, primarily for her benefit though it may be that the husband in directly benefits from it. The conduct of the husband, therefore, cannot be pleaded against the issuance of a writ. Even if the girl is a child under the definition of the Child Marriage Restraint Act she has not been made liable to punishment in respect of such a marriage. We, therefore, see no force in this contention as well.

6. We can well understand the sentiment of the father in this unfortunate matter, but in view of the law, as it stands, we cannot help him.

7. For the reasons given above we order that the girl shall be released from the custody of the father and she shall be free to go wherever she likes. She has expressed her desire to go with the husband and there is nothing to stop her from doing so. A writ shall issue accordingly.

8. Before we part with the case we would like to add that we have advisedly not tested the claim put forward on behalf of the petitioner and the girl, according to which she is said to have been of the age of 18 years or more. This question must be left to be determined by the Criminal Court if the prosecution under section 366 is pressed. For the purposes of this petition we have merely acted on the admission of the father, according to which the girl was above 15 years of age on the date of her marriage. K. B. A. Petition accepted.