P L D 2021 Lahore 783 (PLP)

MIRZA VIQAS RAUF, J.

The petitioners herein are mainly seeking writ of mandamus against respondent No.1 through instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2. Facts in brief giving rise to the instant petition are that Mst. Mubashira Kausar (petitioner No.2) is daughter of Mst. Shahida Parveen (petitioner No.1) who is widow of Muhammad Saleem. As per averments, Waseem Sajjad (respondent No.3) along with Muhammad Arshad (respondent No.7) abducted petitioner No.2 on 13th March, 2018 and on the same day a Nikah was got solemnized inter se petitioner No.2 and respondent No.3 under coercion and duress. It is asserted that petitioner No.2 was a minor being less than 16 years old at that time and as such Nikah was performed in violation of the Child Marriage Restraint Act (1929) (hereinafter referred as "Act, 1929"). It is the grievance of the petitioners that an application before respondent No.1 was though moved for filing of complaint under Section 9 of "Act, 1929" but remained unattended.

3. In response to the averments of the petition, respondents Nos.3, 4 and 7 have taken a stance that petitioner No.2 was sui juris and competent to enter into marriage contract. It is also part of their reply that to this effect two applications under Sections 22-A and 22-B of the Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C") were moved before the learned Ex-Officio Justice of Peace, which were dismissed. The application moved by the petitioners before respondent No.1 was also got dismissed in the light of their statements vide order dated 14th July, 2018.

4. Learned counsel for the petitioners submitted that it is duly established on the record that at the time of Nikah petitioner No.1 was a child as per contemplation of Section 2(a) of "Act, 1929". He added that under the law there was a clear prohibition on marriage of a child. It is contended with vehemence that under Section 9 of "Act, 1929" respondent No.1 was bound to send a complaint to the Family Court for the purpose of taking cognizance of the offence. Learned counsel further contended that order dated 14th July, 2018 cannot be pleaded as a hurdle in the way of petitioners, as the same is void.

5. Conversely, learned counsel for respondents Nos. 3, 4 and 7 (hereinafter referred as "private respondents") while making reference to C.M. No.301 of 2019 and order dated 18th February, 2020 passed therein contended that the petitioners are precluded to call in question the vires of order dated 14th July, 2018. Learned counsel submitted that petitioner No.2 was not a child at the time of Nikah and marriage was solemnized in accordance with law. It is argued that in view of orders passed on petitions under sections 22-A and 22-B of "Cr.P.C", instant petition is not proceedable. It is also one of the contentions of learned counsel that in view of pendency of suit for jactitation of marriage any findings in this petition would prejudice the rights of the parties in the pending litigation. Learned counsel submitted that order passed by respondent No.1 is appealable and as such petitioners have an alternate remedy.

6. Learned Law Officer as well as learned Legal Advisor adopted the arguments of learned counsel for "private respondents".

7. Heard. Record perused.

8. The matter in issue hinges upon the import and impact of the provisions contained in "Act, 1929". In order to put a restraint on the solemnization of Child Marriages, "Act, 1929" was promulgated as Act No.XIX on 01st October, 1929. The "Act, 1929" was initially extended to all the Provinces and the Capital of the Federation, including Baluchistan and was made applicable to all British subjects and servants of the Crown in any part of India wherever they may be. By virtue of the Adaptation of Central Acts and Ordinances Order, 1949 word "India" was substituted with "Pakistan" and later on through the Punjab Child Marriage Restraint Amendment Act 2015 (XII of 2015) for the word "Pakistan" the words "The Punjab" were inserted. Section 2(a) of "Act, 1929" provides the definition of "child" which reads as under:- "(a) "child" means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;" (Underlining supplied for emphasis) The terms "child marriage" is defined in section 2(b) as under:- "(b) "child marriage" means a marriage to which either of the contracting parties is a child:" Penal clauses for the said purposes are outlined in sections 4, 5, 6 and 7 of "Act, 1929". Section 8 deals with the jurisdiction of the Court whereas Section 9 prescribes the mode of taking cognizance of offences. For ready reference and convenience same is reproduced below:-- "

9. Cognizance of offence and trial.

(1) A Family Court shall not take cognizance of any offence under this Act except on a complaint made by the Union Council. (2) A Family Court exercising the powers of a judicial Magistrate of the first class shall conduct the trial of an offence under this Act in accordance with the provisions of Family Courts Act, 1964 (XXXV of 1964)." It is thus manifestly clear from the above that cognizance of any offence under the "Act, 1929" has been made subject to a complaint by the union council concerned. It is thus obligatory for a union council to place a formal complaint against the persons violating the provisions of "Act, 1929" before the Family Court exercising the powers of a Judicial Magistrate of the first class enabling such court to conduct the trial of the offender under "Act, 1929" in accordance with the provisions of Family Courts Act, 1964. 9. "Act, 1929" categorizes three kinds of persons as offenders. Firstly a male above eighteen years of age who contracts child marriage, secondly person who performs, conducts or directs any child marriage and thirdly where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity lawful or unlawful who does any act to promote the marriage or permit it to be solemnized or negligently fails to prevent it from being solemnized.

10. The question of child marriage is always dependent upon the age determination which of course is the duty of the court before whom complaint is laid for the trying of offender/offenders under "Act, 1929". Though it is specific stance of the petitioners that petitioner No.2 was less than sixteen years of age at the time of Nikah but claim of "private respondents" is otherwise. From the perusal of record, especially certificate issued by National Database Registration Authority (NADRA) and birth certificate issued by union council Dulmial it clearly evinces that age of petitioner No.2 was less than sixteen years at the relevant time. Entry to this effect in Nikahnama was recorded in column No.6 as almost sixteen years. It is common practice in our society that whenever somebody's age is mentioned in approximate figures it tends to show that he/she is yet to achieve that age and it is always treated as less than the age mentioned therein.

11. It is an admitted position on the record that an information to this effect through an application by petitioner No.1 was laid before respondent No.1 on 07th May, 2018 but instead of filing a formal complaint in terms of section 9 of "Act, 1929", the respondent No.1 started formal inquiry in the matter and later on vide order dated 14th July, 2018 application was dismissed as withdrawn on the basis of statements of petitioners, as they have purportedly stated that the application was filed under undue influence. It is reiterated that in terms of section 9 of "Act, 1929" it is the bounden duty of respondent No.1 to file a complaint before the court immediately whenever any information with regard to commission of any offence under the Act ibid came into his knowledge. Holding of any inquiry or probe is not within the domain of union council rather it is within the domain of court, taking cognizance on the complaint, to hold a preliminary inquiry under section 10 of "Act, 1929". Thus any proceedings conducted by respondent No.1 in pursuance to application of the petitioners are coram non judice and non est. Reference in this respect can be made to Tahira Bibi v. Station House Officer and others (PLD 2020 Lah. 811) and Mst. Alishba Bibi v. The State and 7 others (PLD 2020 Islamabad 28).

12. So far contention of learned counsel for "private respondents" that petitioners are precluded to invoke the constitutional jurisdiction of this Court in the light of pendency of litigation before the Family Court and order passed in petitions under sections 22-A and 22-B of "Cr.P.C" is concerned, suffice to observe that proceedings under "Act, 1929" are independent in nature. Pendency of any suit cannot be pleaded as hurdle in the way of such proceedings. It is trite law that criminal and civil proceedings can proceed side by side. It is also evident from the order dated 26th April, 2018 passed by the learned Ex-Officio Justice of Peace that petition under sections 22-A and 22-B of "Cr.P.C" was dismissed on the ground that in terms of section 9 of "Act, 1929" there is a prohibition in taking cognizance of the offences under "Act, 1929" except on a complaint by union council, so said order cannot be an impediment in exercising constitutional jurisdiction.

13. Though this petition is also resisted on the ground that petitioners have an alternate remedy against the order dated 14th July, 2018 passed by union council but this contention at the face of it seems to be ill-founded and misdirected as no remedy is provided under the relevant statue i.e. "Act, 1929" against the order passed by union council.

14. For what has been discussed above this petition is allowed accordingly, as a result thereof, respondent No.1 is directed to proceed in terms of section 9 of "Act, 1929" forthwith with no order as to costs. MQ/S-53/L Petition allowed.