MAUJ ALI vs Syed SAFDAR HUSSAIN SHAH AND ANOTHER

ORDER

1. WAHIDUDDIN AHMAD, J.-This petition for special leave to appeal is directed against the order of the High Court of West Pakistan, Lahore, dated the 20th February 1970, whereby Mst. Musarrat Allah Bandi alias Ladoo, daughter of the peti--tioner, was allowed to go with Syed Safdar Hussain respondent No. 1, her husband.

2. Petitioner's case is that Mst. Musarrat was abducted by respondent No. 1 from the premises of Shama Cinema, Sahiwal in respect of which an F. I. R. Bearing No. 286 was lodged on the 4th November 1969, with Police Station "B" Division, Sahiwal, under sections 363/366, P. P. C. A challan has been submitted in the Court of Magistrate at Sahiwal.

3. On the other hand, respondent No. 1's allegation is that Mst. Musarrat was aged 18 years. She is a singing girl but she decided to enter into marriage with him and was married on the 7th November 1969 at Rawalpindi. He further alleged that Syed Bunyad Hussain respondent before the High Court, has disapproved of this marriage and had taken away Mst. Musarrat against her will in the house of Ch. Akbar Khan of Clifton Colony, Lahore. He, therefore, filed an application for the recovery of Mst. Musarrat under section 491, Cr. P. C. A Bailiff was deputed to recover Mst. Musarrat. She was recovered and produced in the Court.

4. Mauj Ali petitioner, father of Mst. Musarrat, made an application to be impleaded as a party. He alleged that Mst. Musarrat ,was below 16 years of age. That respondent Safdar Hussain had abducted her on the 31st October 1969 and that a case under section 363/ 366, P. P. C. Was pending against him. The petitioner's case is that the petition made by Syed Safdar Hussain was mala fide and in fact he was actually detaining Mst. Musarrat.

5. After hearing the parties, a learned Single Judge of the High Court, by judgment dated the 20th February 1970, has come to the conclusion that Mst. Musarrat had attained the age of puberty. That she has of her own free will entered into marriage with respondent Syed Safdar Hussain and was entitled to go and stay with her husband. Petitioner seeks permission to file an appeal against the said order.

6. Mr. A. G. Choudhri, learned counsel for the petitioner, has contended that the High Court should not have accepted the application filed by the respondent under section 491, Cr. P. C. Mst. Musarrat being a minor girl should have been ordered to go with her father. He further contended that as a case was pending against respondent No. 1 under sections 363/366, P. P. C., the High Court should not have entertained an application under section 491, Cr. P. C. The contention of the learned counsel has not impressed us. It is not disputed that Mst. Musarrat has attained the age of puberty and she had married with respondent No. 1 of her own free will. Such a marriage is valid according to Muhammadan Law. It was urged that such marriage is invalid under the Child Marriage Restraint Act and, therefore, it should not have been recognised by the High Court. This contention also has no force. Since the marriage is valid under the Muhammadan Law, respondent No. 1 is the guardian of Mst. Musarrat and the High Court was perfectly justified in allowing her to go with her husband.

7. We are satisfied that substantial justice has been done in this case. We, therefore, do not consider this as a fit case to interfere in our special jurisdiction. The petition is dismissed.