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Petitioner: Mst. SUGHRAN MAI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ch. Muhammad Sarwar Title: Mst. SUGHRAN MAI vs THE STATE Case No.: Criminal Miscellaneous No, 757/Q of 1979/LHR and 1008/Q of 1979/BWP, Date of Judgment:1980-01-25 Reported As: PLD 1980 Lahore 386 Result: Proceedings quashed
JUDGMENT
JUDGMENT ' By this petition, Mst. Sughran Mai has sought quashment of proceedings against her pending in the Court of Mr. Masood Ali Shah, Judicial Magistrate Section 30, Bahawalpur, in case F. I. R. No, 85 of 1979 under sections 10 and 16 of Zina (Enforcement of Hudood) Ordinance VII of 1979. 2. The brief facts of the case are that Ghulam Mustafa father of the petitioner lodged F. I. R. No, 85 of 1979, at Police Station, Nowshera Jadid on 17-6-79 at 12-30 p. m., stating therein that he was residing in Mauza Bahawalpur Ghalwan alongwith his wife and children. One month before the F. I. R., Amir Bakhsh, son of Nabi Bakhsh Rafiq son of Jan Muhammad, Manzoor son of Kalu, Mst. Maryam wife of Amir Bakhsh and Mst. Muradan wife of Bachu used to visit his house being his neighbours. Mst. Sughran Mai petitioner, according to the complainant, was of 14 years and the above- mentioned persons started inducing her to marry Manzoor son of Muhammad Nawaz which fact was stated by Mst. Sughran Mai petitioner to her parents. 12/13 days before the report, the complainant alongwith his Wife, Mst. Fatima, son, Muhammad Hussain and daughter, Mst. Sughran Mai petitioner were sleeping in the courtyard of his house on separate beds. At the time of morning-prayers, when Ghulam Mustafa complainant, his wife and son woke up, Sughran Mai was not found on her bed and on search hither and thither she could not be traced. On the basis of doubt the complainant alongwith his wife and son went to one Rasul Bakhsh son of Nabi Bakhsh, a brother of Amir Bakhsh, and enquired about Mst. Sughran Mai and demanded that she should be returned. Rasul Bakhsh, after great hesitation, admitted that he got Mst. Sughran Mai abducted through Amir Bakhsh, Rafiq, Manzoor, Mst. Muradan and Mst. Maryam and further told that she was abducted in order to marry to Manzoor Daya. He further.' admitted to have committed a mistake
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and promised to return Mst. Sughran 'Mai but the petitioner, in spite of the promise, was, not returned by Rasul Baksh, etc. 3. After the investigation, the Police submitted a report under section 173, Cr. P. C., in the Court of the learned Magistrate, wherein only the petitioner and Manzoor Ahmad alias Manzoor Hussain son of Allah Ditta were challaned. From the charge-sheet framed by the learned Magistrate, it is clear that the petitioner was charged under section 10(2) of Ordinance VII of 1979 for having committed zina with Manzoor Hussain son of Allah Ditta, her co-accused. Similarly Manzoor co-accused was charged under sections 10(2) and 16 of the Ordinance. Both the charge-sheets were framed on 7- 10-1979. The prosecution cited Ghulam Mustafa, father of the petitioner, Mst. Fatima mother of the petitioner, Muhammad Hussain brother of the petitioner. Faiz Bakhsh and Muhammad Akram as witnesses besides two doctors and the Investigating Officers. Ghulam Mustafa has already been examined as P. W. 1 and Lady Dr. Kaniz Fatima has been examined as P. W. 2. I find from the statement made by the P. S. I. On 21-10-79 that Mst. Ghulam Fatima and Muhammad Hussain P.Ws. Were given up as unnecessary. The only remaining witnesses, namely, Faiz Bakhsh and Muhammad Akram of village Nauraja Bhutta are yet to be examined. 4, Mst. Sughran Mai petitioner was arrested on 1-7-79 and was produced before the trial Court on 2-7-79 who sent her to Darul Aman with the consent of both the parties and their counsel vide order of the same date. She was produced before the Court on 10-7-79 and the Police requested for her judicial remand as, in the meanwhile, she was treated as an accused under Ordinance VII of 1979. The request of the Police was granted and consequently she was sent to Jail as an undertrial prisoner. The petitioner challenged the order of the trial Magistrate for sending her to judicial lock- up, by way of a revision before the learned Sessions Judge, Bahawalpur, who, by his detailed order, admitted the petitioner to bail but instead of handing her over either to the complainant side or the party of Manzoor Hussain, her husband, ordered that she be lodged in the Darul Aman. This order of the learned Sessions Judge dated 16-8-79 was challenged in Writ Petition No, 4572 of 1979/LHR-No, 196-79/BWP, filed by Ghulam Mustafa complainant and in Writ Petition No, 4688 of 1979/LHR-No 201-79/BWP, moved by Manzoor Hussain: Previously some other petitjons for habeas corpus were. Also moved. Both the above writ petitions were dismissed by a learned Judge of this Court by order dated 17-9-79, who refused to exercise the discretionary writ jurisdiction. 5. The present petition has been moved under section 561-A, Cr. P. C., for the quashment of proceedings on the ground that the charge framed under section 10(2) of Ordinance VII of 1979 against the petitioner in view of the evidence already recorded by the trial Magistrate, especially the statement of the father of the petitioner, would be an abuse of process of the Court for the reasons- (i) even according to the certificate produced by the complainant which was issued by the Union Council Kaich Bait, the petitioner was born on 10-8-64 and thus, at the time of her nikah she was 14 years and 10 months and according to the birth entry recorded in Union Council, Bahawalpur Ghalwan the date of birth of the petitioner was 26-12-1961 and thus, she was between 17 and 18 years of age at the time of her marriage and further, according to the medical certificate, her age was 18/19 years. According to the learned counsel, the dispute regarding the age of the petitioner will not be in issue as, according to him, a Muslim girl can validly contract marriage of her own free will and choice after she has attained puberty and, according to her statement, recorded by a Magistrate, she had been menstruating for the last four years; (ii) the factum of marriage has been admitted by the father of the petitioner in his statement at the trial and marriage is not disputed by any one. Learned counsel has also invoked section 4 of the Ordinance and has asserted that if any adult man or a woman wilfully have intercourse without being validly married, they are said to have committed zina and. Since, in the present case,
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marriage was claimed by the parties, no prosecution for zina can continue as the same will not result in any punishment whatsoever. (iii) that even if the allegations contained in the F. I. R. As well as in the evidence of the prosecution already produced and intended to be produced, are believed to be true, no offence will be made out against the petitioner and, thus, it will be nothing but a mockery of justice and an abuse of process of the Court and harassm ent to the petitioner. 6. From the side of the complainant, the questions of puberty and the marriage of a Muslim girl without the consent of her guardian have been raised. It has been argued that marriage without a guardian (wall) is void. It has been further contended that since the marriage of the petitioner with Manzoor Hussain was not in her kafoo, therefore, the same was void. These questions have arisen in view of the provisions of the Offence of Zina (Enforcemeet of Hadood) Ordinance VII of 1979 which is recently promulgated. As penal law of Islam was not previously in vogue in the country, the above- mentioned important questions will need a discussion in detail. 7. During the course of the hearing of this petition, I also summoned Mst. Sughran Mai petitioner who admitted before me that she married Manzoor Hussain (co-accused) of her own free-will after attaining puberty. 8. Before entering into discussion of most important questions of Muslim Law, I would like to refer to certain provisions of the Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 under which the petitioner is being accused of and tried. "Adult' has been defined in section 2(a) as- a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty." ' Marriage for the purpose of the Ordinance has also been defined by section 2(c)- "marriage" means marriage which is not void according to the personal law of the parties, and 'married' shall be construed accordingly." `Zina' has also been defined in section 4 as- "a man and a woman are said to commit `zina' if they wilfully have sexual intercourse without being validly married to each other." `Zina liable to hadd' has been defined in subsection (1) of section 5 asZina is zina liable to hadd if-i- (a) it is committed by a man who is an adult and is not insane with a woman to whom he is not and does not suspect himself to be married; or (b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be married." ' The word "puberty" has not been defined in Ordinance VII of 1979 and in order to understand the age of puberty in Islam, one has to refer book to the Muslim Law on the point. 9. The parties are, admittedly, sunnis and governed by the Hanafi sect of Muslim Law. According to Imam Abu Hanifa and Muhammad, puberty is presumed to be attained at the age of 15 years both for males and females. There are conflicting reports about the view of Abu Hanifa. According to one report, he has also agreed with the view of the disciples. Imam Al-Shafei has also agreed with it. This has also been held in a number of cases: See Mst. Bakhshi v. Bashir Ahmad and another (1), Muhammad Atkia Begum v. Muhammad Ibrahim Rashid Nawab (2), Yusuf v. Mt. Zainab (3), Nawab Bibi.v. Allah Ditta (4), Khair Din v. Hakim Bibi (5), Kubra Bibi v. Muhammad Shafi (6). Muslim Law also draws a line of distinction between two stages of minority, that is, a minor who is possessed of discretion and understanding (sarir) and one who is not (saghir) and different consequences will flow from these two stages of minority. ' Syed Ameer Ali, in his book "Muhammadan Law", 7th Edn., p. 246, while discussing the age of discretion and the capacity to, contract marriage, has stated: "It is otherwise, however, in the case of a marriage contracted by a sarir. `It is 'valid', says the Fatawai Alamgir, 'though dependent for its operation on the consent of the guardian'." ' A sarir is a youth who has not attained majority but is possessed of understanding. The Fatawai Alamgiri calls such a minor sabi-ul-aakil.
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' Puberty has also been defined in Hedaya (translation by Charles Hamilton) at page 529 as under : "The puberty of a boy is established by circumstances, or upon his attaining eighteen years of age,-and that of a girl, by circumstances, or upon her attaining seventeen years of age :- ' The puberty of a boy is established by his becoming subject to nocturnal emission, his impregnating a woman, or emitting in the act of coition; and if none of these be known to exist, his puberty is not established, until he have completed his eighteenth year. The puberty of a girl is established by menstruation, nocturnal emission, or pregnancy; and if none of these have taken place, her puberty is established on the completion of her seventeenth year. What is here advanced is according to Haneefa. The two disciples maintain that upon either a body or girl completing the fifteenth year they are to be declared adult; there is also one report of Haneefa to the same effect; and Shafei concurs in this opinion.-It is also reported, from Haneefa, that to establish the puberty of a boy nineteen years are required. Some, however, observe that by this is to be understood merely the completion of eighteen years and the commencement of the nineteenth; and consequently, that this report perfectly accords with the other. Some, again, affirm that (1) PLD 1970 SC 323 (2) 36 I C 20 (P C) (3) AIR 1923 Lah. 102 (4) AIR 1924 Lah. 183 = 73 I C 896 (5) 26 I C 421 (6) AIR 1940 Pesh. 2 this is not the sense in which the last report is to be received; for there have been other opinions reported from Haneefa on this point, different, from that first recited as above; because some authorities expressly say that (according to him) the puberty of a boy is not counted by years until he shall have completed his nineteenth year. It is to be observed that the earliest period of puberty, with respect to a boy, is twelve years, and with respect to a _girl, nine years." ' Their declaration of their own puberty, at a probable season, must be credited :- ' When a boy or girl approaches the age of puberty, and they declare themselves adult, their declaration must be credited, and they become subject to all the rules affecting adults; because the attainment of puberty is a matter which can only be ascertained by their testimony; and consequently, when they notify it, their notification must be credited, in the same manner as the declaration of a woman with respect to her courses." ' Baillie, in his Digest of Muhammadan Law (2nd Edn.), note at page 4, relying on Fatawa-i-Alamgiri, Volume V, page 93, has stated that-"the lowest age of puberty, according to its natural signs, is 12 in males and 9 in females: when the signs do not appear, both sexes are held to be adult when they have completed their 15th year". Tyabji, in his Muhammadan Law, at page 104, section 21 states-"With reference to the age of competence to marry, it is presumed, in the absence of evidence of attainment of puberty, that males attain puberty at the age of 15 years, and females at the age of 9 years". Author has relied on a number of authorities in this behalf. See also Munshi v. Mt. Alain Bibi (1), Sibt Ahmad and another v. Amina Khatoon (2), Sadiq Ali Khan v. Jai Kishori (3), Principles of Muhammadan Law by Mulla (17th Edition), section 251, page 226. ' W. H. Macnaghten, in his Principles and Precedents of Muhammadan Law, at page 266, has raised a question regarding the validity of marriage of a girl of 11 years of age of her own free-will and choice, without the consent and approbation of her mother or guardian and then has answered as follows :- "The answer to the question entirely depends on the fact of the girl's being adult or otherwise. If a girl exhibits certain signs of womanhood at the age of nine, ten, eleven or up to fourteen years old, she is, in the language of the Law denominated baligha bilulamut or adult by puberty. Should she exhibit none of those signs up to her fourteenth year, yet, on her attaining the age of fifteen years she will be deemed an adult, and in the language of the Law will be termed baligha bissin or adult by majority. Under these circumstances if the girl alluded to in the question, being eleven years of
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age, should have shown signs of womanhood, she will be technically denominated baligha bilulamut, and will be at liberty to contract marriage with a person either her equal or inferior in condition, without the consent of her mother or other guardian. Such marriage is available in Law; in. Other words the contract does (1) AIR 1932 Lah. 280 (2) AIR 1929 All. 18 (3) 109 I C 387 not infringe any positive legal rule. The mother or other guardian is not authorised to prevent the match, if she enters into a contract of marriage with a person equal in point of condition; but, if he be her inferior, they have a right to come forward and cause it to be set aside. In case of any doubt existing as to whether a girl has exhibited certain signs of womanhood, she should be questioned as to the fact; and if she replies in the affirmative, she should be treated as an adult, otherwise as a minor; and, if the fact cannot be ascertained from her declaration, she should be considered as not having passed the age of minority, and in both the last mentioned cases, if, without the consent and approbation of her mother or other guardian, she should have contracted matrimony either with her equal or her inferior, the marriage is good in law; in other words, the contract does not infringe any positive legal rule: but her mother or other guardian has, at any time, a right to come forward and to cause the marriage to be set aside." ' Similarly, at page 267 of the book, Mr. Macnaghten has raised another question that if a girl having attained the age of twelve or of thirteen or of fourtheen years, asserts that she has arrived at the age of puberty, in such circumstances, whether such assertion is to be credited or otherwise, and then has replied as under:- "An assertion either by a male or a female of their having attained the age of puberty, after they are twelve, or thirteen, or fourteen years old, should be credited and received as conclusive, according to the Viqaya,-"If they are adolescent and shall assert their puberty, they must be believed and treated as persons who have arrived at the period of puberty." ' From the above discussion it can be safely concluded, and it is also agreed by the Hanafi jurists, that the attainment of puberty is presumed at the age of 15 years and a girl becomes a major on the happenning of two events: (i) the completion of her fifteenth year; or (ii) on her attainin the age of puberty at an earlier period. The latter portion of the above statement is given due recognition in the definition of 'adult' in Ordinance VII of 1979 but left it to be determined according to the circumstances of each particular case. In the case before me, marriage is admitted by all. At the time of her marriage, the petitioner, even according to the A prosecution, was 14-1/2 years. Her statement, before me, having attained puberty, cannot be doubted and shall be given full credit particularly when the petitioner was quite nearing the age of 15 years, as Muslim Law presumes puberty at the age of 15 years. The petitioner's general appearance also confirms her assertion of having attained puberty at the time of her marriage. Syed Ameer Ali, in his Muhammadan Law, at page 246, noted a case from Motleys' Digest, Vol. 1, page 303-Shanisunnisa v. Ashrafunnissa and others, in which it was held by the S udder Court of Calcutta that the declaration of a girl that she was adult, when there was nothing in her appearance to lead to the contrary conclusion, would be accepted to establish majority. The petitioner, being adolescent, has asserted her puberty before a Magistrate, a Sessions Judge and even before me, at a time when she was a little over 15 years of age. Her unequivocal assertion before me will also amount to ratification of her marriage even contracted at a time when she was a little less than 15 years. In these circumstances, when the petitioner has attained puberty before attaining the age of 15 or 16 years, the determination of her exact age will be an exercise in futility. Marriage of the petitioner, in these circumstances, will be valid and even if, for the sake of argument, marriage is presumed to be irregular having been contracted by a sarir, the same having been ratified by the petitioner after attaining puberty, the defect or irregularity, if any, was thus removed.
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10. The next question that would be relevant to the discussion is whether a marriage contracted by a minor without the consent of the guardian is void or irregular. Right to marry a minor by the guardian is agreed by all the Muslim jurists and a minor girl who has not attained the age of puberty can be given in marriage by the guardian and in that case right of option of puberty has been given to the girl to accept or cancel the marriage after the attainment of puberty. In Fatawai Kazee Khan, Vol. I, page 57, it is stated: "If a minor boy or a minor girl should marry himself or herself without the permission of the guardian and then they attain majority, the marriage contracted by them is not valid unless they ratify the same after attaining majority." A marriage contracted by a minor who has attained discretion (sarir) is irregular and may be ratified after attaining majority. Reliance can be placed on Munshi v. Mst. Alam Bibi (1). As already stated, puberty has not been defined in the Ordinance and Islam has fixed no age-limit for puberty for it varies with the countries and with races due to the climate, hereditary, physical and social conditions. Thus, in cold regions, one attains puberty at much later stage as compared to hot regions where both male and female attain it at quite an early stage. The earliest age of puberty. With respect to a boy, is 12 and, with respect to a girl, it is 9 years, as referred to in Hedaya at page 530. In the case of Munshi v. Alam Bibi cited above, it was held that under Muslim Law even a girl under 15 years is competent to enter into a marriage contract if she has attained puberty. It was further held that where there is no perpetual or absolute prohibition against the marriage and the only objection is the alleged minority of the girl who entered into the contract of marriage, the marriage, at the most, would be invalid and not void, if it is found that the, girl was not in fact competent to enter into a marriage contract owing to her not having attained puberty. Syed Ameer Ali, in his book "Muhammadan Law", Vol. II, at page 266 (17th. Edition), relying on Radd-ul-Mukhtar, Vol. II, page 515, has stated : "When a minor girl, who has no relation that can stand in the situation of a wali, contracts herself in marriage, and there is no Kazi from whom sanction may be obtained, the marriage is not void, but will take effect on her attaining majority and ratifying the contract." ' See also Kita-bul-Fiqa Alal Mazahib-ul-Arba, Vol. IV, Book on Nikah, page 61. ' In the present case, admittedly, the petitioner has attained puberty and her stand from the very beginning has been that she married Manzoor Hussain of her own free-will and choice. As indicated earlier, the petitioner has already ratified the marriage contract and the defect or irregularity, if any, stands cured. 11. The objection from the complainant side, .However, was that the marriage of the petitioner, even if she be considered to be of the age of puberty, was void, as marriage of a woman cannot be performed without the consent of the guardian (wali). There is no force in the argument because guardian has no authority to marry a woman who has attained the puberty, (1) AIR 1932 Lab. 280 without her consent, and such a marriage cannot be merely held to be void because it was not liked by a guardian. According to Fatawa-iKazee Khan (at page 86), the text which forms the basis of the authority of a guardian (in the matter of marriages) is the saying of the Holy Prophet (peace be upon him)-"There is no Nikah except by (means of) a guardian" and the existence of a guardian is a condition for the validity of the marriage of minors, and of those who are the property of others (i. e. Those who are slaves) and of those who are insane. Further, at page 96, it is stated that a father has no right to give his virgin adult daughter in marriage, in spite of her (that is, without her consent). The question of guardianship only arises in case of a woman who has not yet attained the age of puberty and the Muslim Law has given power to the guardian to give ,D her in marriage only in such an event; otherwise, a guardian has no power to interfere into the right of an adult woman regarding her marriage, as she is her own guardian (wali). See also Durrul Mukhtar (Urdu translation! By Maulvi Khurram Ali), Vol. II, Chapter Babul-wali, page 25. In support of the above view, a Hadith of Allah's messenger (may peace be upon him) be quoted:-
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"A woman, without a husband, must not be married until she is consulted, and a virgin must not be married until her permission 'is sought." (Sahih Muslim, Tirmizi, Abu Daud, Nisai and Bokhari.) 12. The next objection from the complainant side was that marriage of the petitioner with Manzoor Hussain was also void because it was a marriage in ghair kafoo ({{URDU TEXT}}-not with an equal). Kafa'at has been defined in Hedaya at page 39 as, in its literal sense, 'equality'. In the language of the law it signifies the equality of a man with a woman in E several particulars, i,e,, tribe or family, religion, freedom, character, fortune and profession. In Fatawa-i-Kazee Khan, page 71, it is stated "Kafaat (or equality) is relevant (and is an element fit for consideration) in marriage, although Malik, on whom be peace, and Soofyan and a party of the Sahabis, may God have mercy upon them, have entertained a different opinion. And it is said of Kurkhy, on whom be peace, that he entertained an opinion similar to that held by the persons named above. According to him, kagat appertains to five qualities. After enumerating these qualities, it is stated (at pages 76-77):- "When a woman (that is a…
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