ALLAH BAKHSH vs SAFDAR and otherss

ORDER

' SH. JAVAID SARFRAZ, J.---The alleged detenue Farzana vide order dated 6-6-2005 was ordered to be examined by the Medical Board to ascertain her age and was referred to Medical Superintendent, DHQ Hospital, Multan. The report of the Medical Board has been received, according to which she has already attained puberty and her age is about 15 years.

2. Learned counsel for the respondents has submitted that since the age of petitioner is only 15 years and as such she is a minor and her custody should be handed over to the respondent being her father and not to the alleged husband. Relied upon "Allah Dad v. Hazoor Bakhsh and others"

(1985 SCMR 942). On the other hand learned counsel for the petitioner referred to "Zarina Khatoon v. District Magistrate South Karachi and 5 others" (PLD 1978 Karachi-374), "Mushtaq Ahmad v. Mirza Muhammad Amin and others" (PLD 1962 (W.P.) Karachi 442), and submitted that a Muslim girl of 15 years who has contracted marriage of her own choice, her removal from her husband was unlawful as the provisions of Majority Act, 1875 are not attracted in matters relating to marriages.

3. The alleged detenue is present in Court and submits that she has married Muhammad Safdar son of Muhammad Ramzan vide Nikahnatna dated 9-4-2005 and is living with him on her own free-will and consent as his wife. Submits that she is not in illegal detention. The Nikah has been registered with Ward No,8-Muslim, Union Council No,35 Police Station Qutabpur, District Multan.

4. The alleged detenue according to medical report is 15 years old. She is a sui juris and could marry on her own accord and choice even without permission of Wali/father. No illegality has been committed by her. "1985 SCMR 942 the judgment relied upon by the learned counsel for the respondents is not relevant as the alleged detenue is not an abductee, and no case has been registered against the husband for her abduction, therefore, this judgment under the present circumstances of the case is distinguishable and not applicable. On the other hand, the judgments relied upon by the learned counsel for the petitioner are applicable and very much relevant. Even the Child Marriage Restraint Act (XIX of 1929) does not invalidate the marriage once it has been performed. (PLD 1962 (WP) Karachi-442), is relied upon. Having attained the puberty under Muhammadan Law, the petitioner could marry her husband namely Muhammad Safdar.

5. During arguments learned counsel for the respondents also raised an objection that according to Nikahnama 5 Marlas plot was to be given to Mst. Farzana Bibi by her husband. However, Muhammad Safdar offered to deposit Rs,50,000 in the name of Mst. Farzana Bibi. Learned counsel for the respondents submitted that Rs,50,000 should be deposited in the name of Mst. Farzana rather than purchasing 5 Marlas plot at the place where husband is residMg as according to him value of 5 Marlas plot in that village would cost hardly 15,000 to 20,000.

6. Muhammad Safdar, in order to prove his bona fide has undertaken to deposit Rs,50,000 in the name of Mst. Farzana. Accordingly, he is directed to deposit this amount in any profitable scheme of National Savings Centre, for 5 years within one month from today. Copy of this order will also be given to the Incharge Savings Centre, with whom the amount is deposited. It is made clear that Mst. Farzana shall not be entitled to receive this amount for five years. Thereafter she may receive the amount with its profit.

7. As Mst. Farzana has not been found in illegal custody of the respondents, therefore, she is set at liberty and is allowed to accompany her husband.

8. Learned counsel for Muhammad Safdar shall file copy of the deposit slips of Rs,50,000 in the name of Mst. Farzana with the Deputy Registrar (Judi.) of this Court within one month from today.

9. With the above direction, this petition .