MUHAMMAD KHALID JAMSHED Versus MALIK GODHA

ORDER

1. Petitioner Muhammad Khalid Jamshed alias War Iqbal filed this petition under section 491, Cr.P.C. for the recovery of, Mst. Manzoor Maee from illegal and improper custody of Malik Godharespondent.

2. Mst. Manzoor Maee is the daughter of Malik Godha respondent and according to the petitioner Mst. Manzoor Mace, a sui juris, contracted a valid marriage with him and she performed marital obligations in his house. Learned counsel for the petitioner submitted that as a matter of fact, Mst. Manzoor Maee was engaged with the petitioner two years ago but thereafter respondent resiled from 'commitment and refused to marry Mst. Mahzoor Mace with the petitioner. Also submitted that respondent was not happy over the marriage, solemnized by the petitioner and Mst. Manzoor Mace. Further submitted that on the intervention of the notables, petitioner agreed to send Mst. Manzoor Maee to the house of the respondent Malik Godha, who promised to make "Rukhsti" of Mst. Manzoor Maee to the house of the petitioner in a traditional manner.

2. 2‑A. The grievance voiced is that respondent is not allowing Mst. Manzoor Maee to visit the house of the petitioner and has also refused‑ to accept the bondage of marriage of the petitioner with his daughter Mst. Manzoor Maee.

3. Learned counsel submitted that Mst. Manzoor Maee is being maltreated and is kept in illegal and improper confinement by the respondent. Also submitted that in spite of repeated requests of the petitioner, respondent has not allowed the petitioner to meet Mst. Manzoor Maee and he is bent upon to marry her with some one else against the wishes of Mst. Manzoor Maee. Learned counsel concluded that the detention of Mst. Manzoor Maee is quite illegal and there exists grave danger to her life.

3. 1 have anxiously considered the contentions raised by the learned counsel for the petitioner.

4. It is nowhere stated in the writ petition that the petitioner is a close relative of respondent Malik Godha. It is‑only mentioned in the writ petition that the petitioner belongs to the brother of respondent.

5. The Courts of Pakistan are not being presided by foreign Judges, therefore, the Courts cannot ignore the social values, traditions ' Pakistani culture and code of morality of the country. The arranged marriages are seen with respect in the society and the marriages contracted as a result of love affairs bring hatred and shame to the parents.

4. The Courts do not function in vaccum and it must take due notice of social and moral norms prevailing in the Society.

5. In number of cases it has been observed that Nikahnamas are fabricated and the girls continue living in the house of their parents. The so‑called husband on his own choice on one fine morning informs the poor parents of the girl that he is their son‑in‑law and demands the hands of the so‑called wife. This grave onslaught sometimes cause severe shock to the parents and they become stunned. This state of affairs cannot be tolerated. Neither the father nor any close relative of the girl is a signatory of the Nikah‑deed. The person nominated as Vakil of the bride in the Nikahnama is a stranger and even not the caste‑fellow.

6. The original Nikahnama has not been produced in the Court and instead a photostat copy of the‑Nikahnama attested by Secretary, Union Council has been attached with the petition. No reason whatsoever has been shown for not producing the original Nikahnama in the Court. The photostat copy produced has not even been prepared from the original Nikahnama because in Annex "A" it is written under the heading words and similarly under the heading the words are mentioned and signatures of the bridegroom and thumb‑impression of the bride do not exist. It would show that this photostat copy has not been prepared from the original Nikahnama but from some attested copy of the so‑called Nikahnama.

7. The genuineness or otherwise of the Nikahnama can be determined by a Judge Family Court.

8. The petitioner may file a suit for restitution of conjugal rights and in case Mst. Manzooran acknowledges registration of Nikah and solemnization of marriage, she may file written reply and the Judge Family Court may pass a consent decree in favour of the petitioner. Further in case of the contest of the suit filed by the petitioner the Judge Family Court is duty bound to initiate conciliation proceedings.

9. In PLD 1995 Lahore 364 (Syed Farman Ali v. Abid Ali and others) it was held that:‑‑

10. "The manner and form in which a marriage is to be solemnized is unambiguously decreed in Islam. The particular characteristic of Nikah is that it is performed publicly in the presence of witnesses and Ijab‑o Kabool has to be ascertained by the Nikah.Khawan and brought to the notice of all present for their information, The girl whose hand is to be given in marriage should be major and ordinarily her marriage to be conducted by her guardian or Vakeel, appointed by her for that purpose.

11. The Nikah, Islam lays down, should be performed in the presence of witnesses so that it attains distinction from an act performed without witnesses in secret. It loses its sanctity, if performed in a secret manner. The Muslim Family Laws Ordinance clearly, prescribed the method of registering the Nikah. The violation of these procedures attract punitive action. "

12. At this stage it cannot be said with certainty that Nikahnarna is genuine 1 and executed without exercising undue influence and pressure. Issuance of notice to the father of a girl would certainly bring humiliation and insult to the family of the girl. This petition is based upon mala fide and has not been filed with clean hands.

13. On one hand it is an attempt to harass and pressurise the respondent and on the other hand to circumvent the normal law and to get the so‑called marriage, authenticated by this Court.

14. Famous principle of Islamic jurisprudence i.e. the law changes with the change of circumstances, with the change of situation and with the change of environment. This principle is fully applicable to the facts of the present case. A sui juris girl may contract valid marriage of her own accord but she should possess sufficient maturity and her decision of marriage should be in consonance with the accepted norms of Society.

15. In the case under review, admittedly the parents or relatives of the bride or bridegroom did not participate. in the Nikah ceremony. She, 4s continuously living in the house of her father. Keeping in view all the circumstances of the case the presence of Mst. Manzooran Maee in the house of her father can neither be termed illegal nor improper.

16. For what has been stated above, this petition has nb merits which is dismissed in limine.

17. N.H.Q./M‑63/L

18. Petition dismissed.