2007 PLP 379 (YLR)

FAZAL-E-MIRAN CHAUHAN, J.

By filing the instant writ petition, the petitioners have sought for quashing of F.I.R. No.129, dated 16-3-2006, offence under section 10 subsection 2/15 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979, registered at Police Station, Garh, District Faisalabad.

2. S.I., in attendance, has recorded the statement of Mst. Humaira Bibi petitioner No.2; as per her statement, she stated that at the time of marriage, she was minor and her consent to the alleged Shari Nikah is of no consequence. She has also filed a suit for jactitation of marriage. She was given into marriage by her father on 27-1-2006. She is legally wedded wife of Muhammad Nawaz-petitioner No.1 and is performing her matrimonial obligations in accordance with law. Neither she has been abducted by anyone nor any offence has been committed by her.

3. S.I. states that in view of the statement made by petitioner No.2-Mst. Humaira Bibi, no offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 is made out. She is no more required for the purpose of further investigation.

4. Conversely, learned counsel for respondent No.4/complainant-Aman Ullah opposed the cancellation of F.I.R. contending that suit for restitution of conjugal rights was ex parte decreed by the learned Judge Family Court, Tandalianwala, on the basis of an agreement, executed by father of petitioner No.2 in which she was alleged to have been given in marriage to Aman Ullah respondent No.4.

5. I have heard learned counsel for the parties and perused the record carefully with their able assistance. From the perusal of record as well as statement made by petitioner No.2, it is an admitted fact that at the time of alleged agreement executed by father of petitioner No.2, she was of the age of four years and the said Shari Nikah, on the basis of which, respondent No.4 has claimed petitioner No,2 to be his legal wedded wife, was without her consent and was not binding on her; being minor, she can neither make a valid proposal nor make a valid acceptance. The alleged marriage was never consummated. On attaining the age of majority, she denied the marriage and had also filed a suit for jactitation of marriage.

6. Marriage as defined in section 250 of Mullah's Muhammadan Law, is a contract, which has for its objects the procreation and legalization of children. If marriage is a contract, then it is to be seen whether consenting parties, to the contract, are adult, major and are fully aware of the consequences of the contract. A contract affecting a major and restricting her right of marriage according to her own choice. Neither any Nikah was performed nor any offer of acceptance was made between the parties. The petitioner was of the age of four years at the time of said Shari Nikah. 6-A. The contention that suit for restitution of conjugal rights was decreed ex parte by the learned Judge Family Court, it is astonishing that the learned. Judge Family Court proceeded to pass ex parte suit for restitution of conjugal rights on the basis of an agreement, said to have been executed by father of petitioner No.2, giving her in marriage to Aman Ullah in lieu of Mst. Bashiran Bibi. It is not binding on her and no decree on the basis of such agreement should have been passed against her by the learned Judge Family Court.

7. Be that as it may, in view of the statement made by petitioner No.2, no offence under section 10 subsection 2/15 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 is made out against the petitioner, therefore, F.I.R. No.129 of 2006 is ordered to be quashed. H.B.T./M-337/L F.I.R. quashed.