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Petitioner: GUL KHATOON VS Respondent: Haji MUHAMMAD ASLAMHonorable Justice Shakeel Ahmed BalochMrs. Sabira Islam,Nazim-ud-Din
2015 P Cr. L J 193
[Balochistan]
Before Shakeel Ahmed Baloch and Ghulam Mustafa Mengal, JJ
GUL KHATOON---Petitioner
Versus
Haji MUHAMMAD ASLAM and 13 others---Respondents
Constitutional Petition No. 731 of 2013, decided on 19th November, 2014.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 11---Child Marriage Restraint Act (XIX of 1929), Ss.4 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Alleged abduction of a sui juris girl---Plea of marriage by alleged abductee---Consent of wali---Requirement---Scope---Petitioner, mother of alleged abductee girl, had sought production of her daughter and registration of F.I.R. against respondents---Alleged abductee in her statement before the Judicial Magistrate, had stated that she was never abducted by any one, rather she entered into wedlock with the respondent with her free will and consent---NADRA Authorities had verified that alleged abductee's age was 25 years, and Nikah Nama had shown that she was legally married to respondent---Alleged abductee, herself appeared before the High Court, and confirmed that no one had abducted her and that she had married with the respondent with her consent and free will---Alleged abductee, who had attained the age of majority, and being sui juris Muslim, had every right to exercise her full social and civil rights; and by exercising such right, she entered into valid Nikah/marriage with respondent---Such marriage was not in violation of the provisions of the Child Marriage Restraint Act, 1929---"Will" and 'consent' of guardian/wali, in the case of marriage of sui juris Muslim girl, was not required; as sui juris Muslim female could enter into valid Nikah/marriage of her own free will and such marriage was not invalid on account of the alleged absence of consent of wali---Marriage of alleged abductee with respondent being in accordance with Islamic Law, allegations levelled by her mother were based on mis-understanding and misconception, having no legal footings---Constitutional petition was dismissed.
Mst. Shazia and another v. S.H.O. Police Station Kumb, District Khairpur and 7 others 2011 YLR 493 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219 ref.
(b) Words and phrases---
----"Sui juris"---Defined and explained.
Black's Law Dictionary, seventh edition rel.
Mrs. Sabira Islam for Petitioner along with Petitioner and abductee Mst. Khadija.
Nazim-ud-Din, A.-G. and Shai Haq, A.A.-G. for Respondents.
Date of hearing: 25th September, 2014.
JUDGMENT
SHAKEEL AHMED BALOCH, J.---This judgment disposes of Constitutional Petition No.731 of 2013 filed by the petitioner Gul Khatoon for production of her abducted daughter Mst. Khadija and registration of F.I.R. against the respondents Nos.1 to 11.
2. Facts of the case are that the petitioner filed a constitutional petition before this Court stating therein that her daughter namely Khadija (15-years) was engaged with Abdul Rehman (respondent No.2) against her will. A month ago the father of abductee Mst. Khadija and husband of petitioner namely Mullah Dost Muhammad died, whereas after his death, the private respondents forcibly entered into her house and abducted the abductee on gun point and kept her to an unknown place. It was further alleged that the petitioner approached the respondent No.12 (SHO PS New Sariab Quetta) for registration of F.I.R. against the respondents Nos.1 to 11, but since the respondents Nos.9 and 10 are police officials, therefore, due to their influence no F.I.R. was lodged, hence she filed this petition, praying as under:--
"It is therefore respectfully prayed that this honourable Court may kindly be pleased to issue the direction to the respondents Nos.12 to 14 to produce the abductee with further direction to lodge the F.I.R. against the respondents Nos.1 to 11 under the law before this honourable Court in the interest of justice."
3. It appears from the record that with regard to alleged incident an F.I.R. No.174/2013 has already been registered on 28th October, 2013. Anyhow, notices of this petition were issued to all the respondents. The respondent No.12 was directed to produce the abductee in person, but the police failed to locate the whereabouts of the abductee and to that of private respondents for several months. Pursuant to the orders passed by this Court time and again the Advocate General submitted progress reports on various dates of hearing. On 15th May, 2014 the counsel for petitioner stated that the petitioner has met her daughter, who with her free will and consent has contracted marriage with respondent No.2 and thus the petitioner is satisfied and does not want to press the petition, but this Court being dissatisfied and in order to ascertain the actual truth, directed the police to produce the abductee in person before this Court on the next date of hearing. On 3rd June, 2014 the SHO and I.O. of the case appeared before this Court and filed report showing that the abductee has appeared before the Judicial Magistrate-VI Quetta and recorded her statement stating that she was married to respondent No.2 and that no one has abducted her. The statements of SHO and I.O. were disbelieved and they were ordered to produce the abductee in person, thus ultimately on 25th September, 2014 the abductee was produced before this Court. Several questions were asked to her in order to find out that whether she has actually contracted marriage with respondent No.2 with her free will and consent or otherwise. The abductee Mst. Bibi Khadija stated before this Court in the presence of her mother (petitioner) and her counsel that she was never abducted. She was engaged to Abdul Rehman (respondent No.2) and she has contracted marriage with Abdul Rehman with her free will and consent.
4. Heard the parties and have minutely gone through the record. Record reflects that pursuant to the order of this Court dated 3rd June, 2014 the Judicial Magistrate-VI Quetta has submitted the case file along with the statement of abductee, which was recorded on 28th May, 2014 and the complete record of NADRA duly submitted through Law Officer RHO NADRA Balcohsitan dated 23rd June, 2014. In the statement before the Judicial Magistrate-VI Quetta the abductee stated that she was never abducted by anyone rather she entered into wedlock with Abdul Rehman (respondent No.2) with her free will and consent. For facilitation the statement of abductee recorded by Judicial Magistrate is reproduced herein below:--
5. The NADRA Authorities have verified the authenticity of the CNIC issued to the abductee and in the column of husband's name the petitioner has recorded the name of "Abdul Rehman" by producing the Nikkah Nama, which shows that she was legally married to respondent No.2. Even, otherwise, the abductee also appeared before us and confirmed the fact that no one has abducted her and she has married with the respondent No.2 with her consent and free will. It is evident from the record that the abductee had eloped and married with her fiance i.e. respondent No.2 with her free will and consent.
6. As far as the allegation of petitioner that the abductee is a minor is concerned, suffice to state here that the NADRA authorities produced the CNIC of abductee, according to which her date of birth is 1st March, 1989, hence her age is 25 years. Even she appeared before us and physically she was not seemed to be a minor age rather she appeared to be a sui juris Muslim. The meaning of sui juris has been defined in Black's Law Dictionary, seventh edition, according to which sui juris means ones own right independent, of full age and capacity of possessing full social and civil rights. Admittedly, the abductee has attained the age of majority and she has every right to exercise her full social and civil rights and by exercising such right she entered into valid Nikkah/marriage with her fiance and such marriage is not in violation of the provision of the Child Marriage Restraint Act, 1929. It has come clean that the abductee is a major and being sui juris Muslim she exercised her social and civil rights and the allegations of her abduction are false and baseless. Reliance in this regard is placed on the case of Mst. Shazia and another v. S.H.O. Police Station Kumb, District Khairpur and 7 others, 2011 YLR 493 (Karachi). The relevant portion whereof is reproduced hereinbelow:--
"However, looking at the circumstances of the case, I found it appropriate to examine the petitioner No.1 and to explore, if allegations, those have been raised by the respondents Nos. 5, 6 and 7 are true or otherwise, inasmuch as per the dictum laid down in the case of Hafiz Abdul Waheed v. Mrs. Asma Jahangir and others reported as PLD 2004 SC 219 even consent of Wali is not required where a person is found to be a sui juris Muslim. As per Black's Law Dictionary, seventh edition a sui juris means ones own right independent, of full age and capacity possessing full social and civil rights. I was therefore, of the opinion that if the petitioner falls with the meaning of sui juris, getting un-necessarily involved in verging the age of petitioner No.1 would be of no significance as being in such capacity i.e. sui juris the petitioner No.1 was well within her rights to have entered into valid Nikah/marriage of her own freewill."
7. As far as the 'will' and 'consent' of guardian/Wali in the case of marriage of sui juris Muslim girl is concerned, the Concept of "Wali" is not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free will and the Marriage is not invalid on account of the alleged absence of consent of Wali. Having attained the age of majority and being a sui juris Muslim lady the abductee cannot be denied to use her such right. Reliance in this regard is placed on the case of Hafiz Abdul Waheed v. Mrs. Asma Jehangir, PLD 2004 SC 219.
8. The production of Nikkah Nama of the alleged abductee having entered into wedlock with respondent No.2, the CNIC of alleged abductee containing her date of birth as (1st March, 1989), mentioning the name of Abdul Rehman in the column of husband, the appearance of abductee before the Judicial Magistrate and even before us, clearly establishes that she is an adult sui juris Muslim girl having the age of 25 years and she eloped her house and joined her fiance Abdul Rehman at her free will and consent and married with him without any coercion, pressure or threat, as such, the marriage of the abductee with the respondent No.2 is in accordance with Mohammedan Law and is not in violation of Child Marriage Restraint Act, 1929, and the allegations levelled by her mother of her abduction is based on mis-understanding and misconception having no legal footings. Hence, it is held that an adult sui juris Muslim girl can contract a valid Nikkah on her own and consent of Wali/guardian is not needed.
Hence, for the above reasons we find no merits in the petition, which is accordingly dismissed, with no orders as to cost.
HBT/87/Bal. Petition dismissed.