SHAHIDA PERVEEN vs MUHAMMAD INAYAT AND ANOTHER

' Shahida Parveen who claims to be 16/17 years of age and is at present lodged in Darul Aman has invoked the Constitutional jurisdiction for challenging an order of the Sessions Judge, Sialkot dated 26-2-1979 with regard to her custody.

2. The background of the petition is that Muhammad Inayat, the father of the petitioner, lodged a report at the Police Station, Daska, District Sialkot on 8-10-1978 complaining that Shahida Parveen aged 13 years had been abducted and later married to Rafiq. A case under section 363/34, P.'P. C.

Was registered at the police station. The petitioner was recovered, got medically examined with regard to her age on 13-12-1978 and her statement was recorded by Magistrate First Class, Daska on 25-11-1978 under section 164, Cr. P. C. Wherein she stated that she had married Muhammad Rafiq of her own free will and wanted to go with her maternal uncle. The Magistrate thereupon ordered that she should be lodged in Darul Aman. Two revisions were filed against that order and the Sessions Judge found that the question of marriage with Muhammad Rafiq as also her age were matters factually controverted and the father was the proper person at this stage to get the custody of Shahida Parveen. The revision petitions were accordingly disposed of on 26-2-1979.

Hence this petition.

3. Shahida Parveen has remained lodged in Darul Aman all this time. She was got medically examined once again by a Radiologist with regard to her age. It is now reported to be 17 years. Her statement was also recorded with a view to find out what she wanted. She has claimed that she voluntarily contracted the marriage and would like to go with her husband and not with her parents.

4. As regards the age of the petitioner there are three different versions of it. The first is reflected in the birth certificate, a copy of which has been filed. It would make her of less than 14 years. Next there is the statement of the father as disclosed in the F. I. R. Which is to the same effect. The third is the Radiologist's report which fixes her age at 17 years. The learned counsel for the petitioner states that the entries in the birth certificate are forged, that even by appearance the girl is more than 14 years of age. This question falls in the domain of fact and fact alone, particularly when forgery is alleged in a particular public record. Constitutional jurisdiction is not an appropriate one to determine or give the appearance of determining such a question of fact.

5. There is another seriously controverted question of fact and it is with regard to the document produced to evidence Nikah. The name of the girl recorded therein is Rashida Nasreen. This is different than what the petitioner discloses her name to be. It is a document after the date of the offence alleged against the petitioner's so-called husband.

6. The question in the circumstances requiring determination would be only whether the decision given by the Sessions Judge in the revision petition is lacking in lawful authority or is in accordance with law. The Magistrate had ordered that she should be kept in Darul Aman. She cannot be kept there for the entire period of litigation or trial of the case which may ultimately even go to appeal.

Therefore, a more determinative order had to be passed with regard to the custody. It is apparent from the material on the record as well as from what the petitioner states that she is below 18 and therefore not a major. In the matter of custody the Court would therefore be justified in passing an order and not leaving her alone to look after herself. As the credentials of her husband are the subject-matter of adjudication in a criminal trial, it would not have been proper to hand her over to his custody because that would have foreclosed the point in issue or a determination of it. In the circumstances the Court could justifiably pass an order directing the handing over of the custody to the father with whom the mother of the petitioner is also residing. I do not consider that the order is lacking in lawful authority or that on the strength of her claim to be 9f 17 years she can succeed on a mere habeas corpus petition as such.

7. In the circumstances, I find that the order of the Sessions Judge suffers from no such infirmity as may invite interference in the Constitutional jurisdiction. The petition is dismissed. There shall be no order as to costs. The amount deposited by petitioner shall be utilized for meeting the expenses of Darul Aman uptodate. Excess to be refunded.