1995 P Cr (PLP)

S. 491

Habeas corpus petition

Detenu who was a 16 years old girl had categorically stated in Court that she was being illegally kept by the respondent and that she wanted to go and live with her parents

Detenu in circumstances was set at liberty with the permission to go wherever she liked. Ch. Muhammad Iqbal for Petitioner. Ikram-ul-Haq for Respondents Nos.2 and

3. This habeas corpus petition has been filed by Bashir Ahmad to recover his daughter Mst Shahnaz Bibi from the illegal custody of Muhammad Yar. She has been produced in Court by the bailiff. Muhammad Yar and Kameer who is grandfather of the venue have also appeared. Their version is that the detenue was married on 12-10-1991 in exchange for the marriage of Muhammad Yar's sister with Usman who is brother of Kameer. It is stated that since after the marriage the detenue has been living with her husband Muhammad Yar except when she has been visiting her parents every now and then. On the contrary Mst. Shahnaz Bibi as also her father deny the marriage. According to them the detenue was taken by Muhammad Yar about a month back. The detenue has stated that she. is in the illegal confinement of Muhammad Yar, she does not want to live with him. She has prayed that she may be allowed to go with her parents.

2. One thing is very clear that the parties are closely related. Kameer is the real grandfather of the detenue and Usman is real brother of Kameer. It further appears that Mst. Shahnaz Bibi was allegedly married with Muhammad Yar in exchange for the marriage of his sister with Usman. Muhammad Yar has produced the original Nikahnama, according to which the Nikah was performed on 12-10-1991 by Rehmatullah, Nikah Khawan and Nikah Registrar. However, in the Nikahnama the dower amount and the mode of its payment have not at all been mentioned. Learned counsel for Muhammad Yar has also produced a certified copy of the Nikahnama obtained from the Union Council. In that copy dower amount has been mentioned as Rs.50 and the mode of payment has been described as Ghair Moajal. Prima facie, the Nikahnama has been interpolated and these entries have been subsequently added. The Assistant Director, Local Government, District Pakpattan shall hold inquiry with regard to the suspected interpolation and take necessary action in the matter. He shall submit report within the next six weeks to the Deputy Registrar (Judicial) of this Court.

3. It must be stated that the dower or consideration for marriage is an essential ingredient of a valid marriage in Islam. The original Nikahnama and the entries thereof do tend to presume that no dower amount was fixed, as it was an exchange marriage. An exchange marriage may be a consideration for the parents of the spouses but in order to constitute a valid marriage the dower amount or any other valid consideration in lieu of the marriage has to be fixed, offered and accepted by the spouses. Marriage of a relative of a spouse with some other, is by itself not a valid consideration for his or her own marriage. 4: The detenue has stated that she is 15 years of age and she has entered the 16th year. From her looks also she appears to be 16 years of age. Therefore, if the marriage took place in October, 1991, as claimed by Muhammad Yar, then at the time of her marriage Mst. Shahnaz Bibi was about 12/13 years of age. It is a case of child marriage. The District Collector shall ensure that the Nikah Registrar is put to task for registering .a child marriage. With regard to the validity of marriage for want of dower or minority of the girl, parties may raise the dispute before the Family Court, if so advised. I refrain to make any observations in these proceedings, least it should prejudice case of either party before the Family Court.

5. The detenue Mst. Shahnaz Bibi has categorically stated that she was being illegally kept by Muhammad Yar and she wants to go and live with her parents. She is accordingly set at liberty. She is allowed to go wherever she likes. The original Nikahnama has been returned to Mr. Ikram-ul-Haq, learned counsel for respondents Nos.2 and

3. Its photo copy has been retained on the file. Petition stands disposed of.?????? N.H.Q./B-159/L????????? Petition allowed.