MUHAMMAD NAWAZ Versus RAB NAWAZ

1. MUHAMMAD AFZAL CHEEMA, J. ‑This appeal has arisen out of an order of a learned Single Judge of the Lahore High Court, dated 18‑1‑1971, passed in a habeas corpus petition under section 491, Cr. P. C. While allowing the petition, the learned Judge handed over the custody of Mst. Amir Bibi detenu, described by him as a child, to her father Rab Nawaz respondent herein, who was the petitioner in that case. Feeling aggrieved, the appellant moved a petition for special leave to appeal, which was allowed to consider the contention that the order of the learned Judge was made in disregard ,of the principles laid down by this Court in Mst. Bakhshi v. Bashir Ahmad (PLD1970SC323) and Mauj Ali v. Safdar Hussain Shah and another (1970SCMR437),

2. The allegations made by the respondent in his petition under section 491, Cr. P. C. were that Mst. Amir Bibi his minor child from his previous wife had been deceitfully taken away to village Dummerwala by the present appellant in collusion with his sister Mst. Sakina Bibi, second wife of the appellant and that some fake ceremony of Nikah was stated to have been .gone through in consequence of which his minor daughter was being kept in illegal detention. On recovery. the statement of the detenu was recorded by the learned Judge. Presumbly being under the influence of the appellant, she claimed to be 18 years of age, and admitted her marriage with him.

3. The consideration which weighed with the learned Judge to make over the custody of the girl to her father, the respondent, was that from appear ance she looked just a child, and had been allegedly got married without ,the consent of her father.

4. In the leave granting order, dated 9‑4‑1971, it was directed by this Court that the girl shall continue to remain in the custody of her father but he was restrained from giving her in marriage to any other person during the pendency of the appeal. Subsequently, however, the question of interim custody came up once again before this Court on 9‑5‑1974 when the respondent was directed to reproduce the girl in Court. She appeared in Court on 10th of April 1975. alongwith her father and going completely back on her statement before the High Court denied her marriage with the appellant and A asserted that her thumb‑impression was obtained by force by her step‑mother Mst. Sakina on some document. She expressed her choice to live with her father and added that she had also filed a suit for dissolution of marriage.

5. In support of the appellant's claim to the custody of the girl, his learned counsel relied on three authorities of this Court, namely, Mst, Bakhshi v. Bashir Ahmad, Mauj Ali v. Safdar Hussain Shah and another and Muhammad Rafique v. Muhammad Ghafoor (P L D 1972 S C 6).

6. Having gone through the record, we cannot avoid an impression that allegations levied against the appellant in the habeas corpus petition filed by the respondent were prima facie true. She had been admittedly taken to village Dummerwala the place of the appellant's permanent residence where the so‑called marriage was performed and to which the respondent was not a party. Since the girl appeared to the learned Judge to be a minor and) none of the parties could produce satisfactory evidence of age, her custody was handed over to her father.

7. The authorities relied upon by the learned counsel proceed on entirely distinguishable facts and are hardly in point. In Mst. Bakhshi v. Bashir Ahmad a learned Judge of the West Pakistan High Court had set at liberty Mst. Shamim a sui juris daughter of Mst. Bakhshi appellant who had voluntarily contracted marriage with respondent No. 1. On re‑marrying a stranger after the death of the father of the detenu , the appellant was found to have lost her right of custody of the person of the detenu which vested in her husband. The appeal was, therefore, dismissed. In Muhammad Rafiq v. Muhammad Ghafcor a sui juris girl was forcibly given in marriage by her parents to the respondent to whom her custody was handed over by a learned Judge in the Lahore High Court against her will. The learned Judge was apparently impressed by the statement made by the father of the girl that she was lawfully married to the respondent. This order was, successfully challenged in this Court by a near relation of the girl. The view taken by this Court was that under section 491, Cr. P. C., the Court could only set at liberty a person found to be illegally or improperly detained and could not hand over the custody of a major against his or her will which amounted to unwarranted curtailment of liberty. In Mauj All v. Safdar Hussain Shah and another a learned Single Judge of the High. Court of West Pakistan allowed a sui juris singing girl to go with the respondent with whom she had contracted a marriage of her own free will. The petition for special leave to appeal filed by her father was dismissed by this Court on the ground that the High Court's order was unexceptionable.

8. Even otherwise, much water has flown from under the bridges since the making of the impugned order by the learned Judge on 18‑1‑1971. Undoubt edly, the girl was sui juris when she made a statement in this Court on 10‑4‑7975 and expressed her choice to live with her father having also filed a suit for dissolution of marriage against the appellant.

9. In the circumstances, therefore, there would be no warrant in law in forcing a grown‑up girl of about 19/20 years to live with the appellant against her wishes on the basis of a nikah whose validity is already under challenge in the Family Court. The appeal has no force and is accordingly dismissed with no order as to costs.

10. S. A. H. Appeal dismissed.