Summary: (a) Constitution of Pakistan, 1973----Art. 175F(1)(c)---Criminal Procedure Code (V of 1898)----S. 491---Leave to appeal against dismissal of habeas corpus petition for recovery of alleged detenue/daughter---Scope---Petitioner/father sought recovery of his daughter on the plea that she was a Christian minor and had been taken into unlawful custody by respondent, who claimed to be her husband---Courts below dismissed the petition on the basis of the girl’s voluntary statement under S.164, Cr.P.C. and her assertion that she had contracted marriage of her free will---Federal Constitutional Court held that where the alleged detenue had repeatedly appeared before competent fora and unequivocally stated that no abduction had taken place and that she had married voluntarily, her custody with the person claiming to be her husband could not, in summary proceedings under S.491, Cr.P.C., be termed illegal or unlawful---Question whether Nikahnama was forged, or whether investigation required transfer, pertained to criminal process and could not by itself justify habeas corpus relief---Leave was refused and petition was dismissed. (b) Muslim Personal Law---Marriage between Muslim male and Christian female---Validity---Petitioner contended that his Christian daughter could not lawfully marry a Muslim male---Held, contention was misconceived and contrary to settled principles of Islamic law---A Muslim male may validly contract marriage with a Christian woman, being from Ahl al-Kitab---Such principle stood recognized in earlier Supreme Court authorities and classical juristic exposition---Court held that objection to marriage merely on the basis of difference of religion was without substance. Cited Cases: Mrs. Marina Jatoi v. Nuruddin K. Jatoi and others PLD 1967 SC 580. Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56. (c) Constitution of Pakistan, 1973----Art. 189---Federal Constitutional Court---Precedential value of judgments of Supreme Court of Pakistan after establishment of Federal Constitutional Court---Held, judgments of the former Supreme Court of Pakistan do not bind the Federal Constitutional Court as a matter of absolute precedent under the restructured constitutional hierarchy, but continue to carry great persuasive value where they are based on sound reasoning, are consistent with constitutional text and structure, and do not offend fundamental rights or evolved constitutional values---Doctrine of stare decisis was not abrogated but recalibrated in light of constitutional supremacy---Departure from earlier Supreme Court precedent must be express, reasoned and principled, and may be justified where such precedent is manifestly inconsistent with the Constitution, undermines fundamental rights, reflects judicial overreach, becomes incompatible with evolved constitutional values and democratic norms, or where any other compelling reason advances the cause of justice. (d) Muslim Family Laws Ordinance (VIII of 1961)----S.1(2)---Marriage---Conversion to Islam---Effect---Though marriage of a Muslim male with a Christian female is permissible in principle, solemnization and registration under the Muslim Family Laws Ordinance is confined to Muslim citizens---Respondent’s stance was that the girl had embraced Islam before marriage---Affidavit appended with Nikahnama and subsequent certificate issued by a religious institution were produced to show conversion---Held, faith is a personal matter; once a person openly professes adherence to Islam, ordinarily no roving inquiry into the sincerity or motive of conversion is warranted in such proceedings---No specific ritual is indispensable beyond declaration and profession of belief---Where girl herself acknowledged correctness of Nikahnama and declared conversion, Court would not undertake deeper inquiry into genuineness of conversion in summary jurisdiction---Marriage was, prima facie, validly solemnized under the Ordinance. Cited Cases: Mst. Zarina and another v. The State PLD 1988 FSC 105. Tariq Masih v. The State 2004 PCr.LJ 622. (e) Child Marriage Restraint Act, 1929---Child marriage---Effect on validity of marriage---Petitioner asserted that alleged detenue was about twelve years of age and, therefore, incapable of contracting valid marriage---Held, the Act of 1929 restrains and criminalizes solemnization of child marriage, but does not expressly render such marriage void or voidable---In absence of explicit statutory language invalidating the marriage, its legal status remains unaffected---Where legislature intends to override settled personal law, it must do so in clear and unequivocal terms; such intention cannot be inferred from silence---Therefore, even assuming minority, marriage would not automatically become void merely because it was contracted in contravention of the Act of 1929. Cited Cases: Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 W.P. Karachi 442. Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323. Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437. Nasreen Bibi v. Station House Officer and others 2024 PCr.LJ 2058. Muhammad Khalid v. Magistrate 1st Class and others PLD 2021 Lahore 21. Muhammad Azam v. The State and another 2018 PCr.LJ Note 175. Muhammad Safeer v. Additional Sessions Judge (West) Islamabad PLD 2018 Islamabad 385. Allah Nawaz v. Station House Officer PLD 2013 Lahore 243. Allah Bakhsh v. Safdar and others 2006 YLR 2936. Ghulam Qadir v. The Judge Family Court, Murree 1988 CLC 113. Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049. (f) Evidence---Age of alleged detenue---Delayed birth documents---Probative value---Petitioner relied on birth certificate and child registration certificate to show that his daughter was born on 07.10.2012---Held, both documents had been procured many years after the alleged date of birth and no satisfactory explanation for such inordinate delay was furnished---Delayed registration of birth, unless supported by independent and reliable material, is susceptible to manipulation and its evidentiary value is diminished---Further, inconsistency in petitioner’s own stance regarding age in the F.I.R., close birth dates shown for the alleged detenue and her next sibling, entry of a different date of birth in the Nikahnama, and the girl’s own denial of minority materially weakened petitioner’s case---In such circumstances, delayed documents could not be treated as sole basis for holding that the girl was minor, particularly when she appeared physically before the Court and seemed to be of more advanced age. (g) Criminal Procedure Code (V of 1898)----S.164---Statement of alleged detenue---Evidentiary significance in habeas corpus proceedings---Girl had recorded statement before Magistrate that nobody abducted her, no zina was committed, and that she had married respondent of her own free will; she had also made a similar statement in proceedings under Ss.22-A & 22-B, Cr.P.C.---Held, such consistent voluntary statements before judicial fora carried significant value in determining whether custody was illegal---Where marriage was acknowledged and free will asserted, summary court was justified in declining to infer unlawful detention. (h) Criminal Procedure Code (V of 1898)----S.491---Summary nature of proceedings---Limitations---Question whether Nikahnama was forged or unregistered, and whether offences were made out in investigation, could not properly be adjudicated in proceedings of interim and summary nature under S.491, Cr.P.C.---Such issues were to be pursued before competent criminal court or through appropriate investigative remedies---Habeas corpus jurisdiction is not designed to conclusively determine complex factual controversies touching upon validity of marriage documents. (i) Res judicata---Constitutional petition for recovery of daughter---Earlier writ petition on same cause having attained finality---Effect---Petitioner had earlier filed writ petition for recovery of same daughter from same alleged custody on same foundational ground, which was dismissed by High Court after considering her statement under S.164, Cr.P.C. and holding that her custody with husband was not illegal or unlawful---Said finding was not challenged before higher forum and, therefore, attained finality---Held, subsequent proceedings on same issue were barred by principle of res judicata, and petitioner could not re-agitate the same question through another round of litigation. Cited Case: Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145. (j) Constitutional law---Fundamental rights---Reliance on High Court judgment concerning discriminatory definition of “child”---Relevance---Petitioner relied upon PLD 2025 Lah. 1---Held, said judgment had no application to the controversy in hand, as that case concerned challenge to discriminatory definition of “child” prescribing different minimum ages for males and females with reference to provincial legislation, whereas present case concerned legality of custody and alleged invalidity of marriage in the factual setting of Punjab law. Disposition: Leave to appeal was refused and the petition was dismissed; however, observations made in the judgment were not to prejudice or impede criminal proceedings, if any, before the competent criminal court in accordance with law. ------ "The Child Marriage Restraint Act, 1929 merely criminalizes the solemnization of a child marriage but does not expressly declare such a marriage to be void or voidable. The binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself. Since, the supremacy of constitutional adjudication now vests in this Court, therefore, all courts, including the Supreme Court of Pakistan, are bound by its pronouncements. However, this Court would ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values. "

Summary: "The Child Marriage Restraint Act, 1929 merely criminalises the solemnisation of a child marriage but does not expressly declare such a marriage to be void or voidable.The binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself. Since, the supremacy of constitutional adjudication now vests in this Court, therefore, all courts, including the Supreme Court of Pakistan, are bound by its pronouncements.However, this Court would ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values." ---- (a) Constitution of Pakistan---Arts. 175F(1)(c) & 189---Federal Constitutional Court---Precedential value of earlier judgments of Supreme Court of Pakistan---Doctrine of stare decisis---Scope---Establishment of Federal Constitutional Court and conferment upon it of final authority in constitutional matters had restructured the constitutional hierarchy of precedents---Binding force contemplated by Art.189 was to operate subject to the overriding constitutional authority of the Federal Constitutional Court---All courts, including the Supreme Court of Pakistan, were bound by pronouncements of the Federal Constitutional Court---Judgments of the Supreme Court rendered before establishment of the Federal Constitutional Court did not operate as binding precedents upon the Federal Constitutional Court, but continued to possess great persuasive value where based upon sound reasoning, consistent authority and conformity with the text, structure and values of the Constitution---Doctrine of stare decisis had not been abolished but recalibrated to preserve constitutional supremacy---Earlier constitutional jurisprudence of the Supreme Court would ordinarily be respected and followed unless shown to be manifestly erroneous, inconsistent with the constitutional text or scheme, destructive of fundamental rights, reflective of judicial intrusion into legislative or executive domains, incompatible with evolved constitutional values and democratic norms, or where another compelling reason required departure in the interest of justice---Departure from earlier precedent must be express, reasoned and principled. (b) Muslim Personal Law---Marriage between Muslim male and Christian female---Validity---A Muslim male could lawfully contract marriage with a Christian female belonging to Ahl al-Kitab---Proposition that a Christian woman was legally incapable of marrying a Muslim man was contrary to settled principles of Islamic law---Where the woman continued to profess Christianity, however, solemnization and registration of such marriage in Pakistan was governed by the applicable statutory law, including the Christian Marriage Act, 1872, and not merely by the personal law of the Muslim husband. Cited Cases: Mrs. Marina Jatoi v. Nuruddin K. Jatoi and others PLD 1967 SC 580 Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 (c) Muslim Family Laws Ordinance, 1961---S.1(2)---Marriage between persons professing Islam---Christian woman allegedly converting to Islam before marriage---Applicability of Ordinance---Muslim Family Laws Ordinance, 1961 applied only to Muslim citizens of Pakistan and a marriage between a Muslim male and a woman who continued to profess Christianity could not be solemnized and registered under the Ordinance---Where the woman had embraced Islam before solemnization of marriage, marriage between the parties could validly be solemnized under the Ordinance. (d) Conversion to Islam---Proof---Declaration of faith---Judicial inquiry into genuineness of conversion---Scope---Faith was a matter personal to every individual and where a person openly professed adherence to a particular faith, further inquiry into the genuineness of such profession was ordinarily unnecessary---Islam prescribed no particular ritual which a non-Muslim must perform before being recognized as having embraced Islam---Declaration of faith, recitation of the Kalma and profession of belief in the Oneness of Allah, Finality of the Prophethood of the Holy Prophet Muhammad (peace be upon him), the Holy Qur’an, earlier Prophets, revealed Divine Books and the Day of Judgment were sufficient---Affidavit appended to the Nikahnama containing the woman’s declaration, coupled with a certificate subsequently issued by Dar-ul-Afta confirming her earlier declaration, was sufficient, prima facie, to establish conversion---Further inquiry into the genuineness of the conversion or into whether it resulted from spiritual conviction or was undertaken to facilitate marriage would constitute unwarranted interference, particularly in summary proceedings---Woman had also admitted the correctness of the Nikahnama in her statement recorded under S.164, Cr.P.C.---Woman was, prima facie, no longer Christian by faith and her marriage with the Muslim respondent had been validly solemnized under the Muslim Family Laws Ordinance, 1961. Cited Cases: Mst. Zarina and another v. The State PLD 1988 FSC 105 Tariq Masih v. The State 2004 PCr.LJ 622 (e) Child Marriage Restraint Act, 1929---Muslim Family Laws Ordinance, 1961, S.12---Constitution of Pakistan, Arts.268 & 270AA(6)---Child marriage---Applicable law in Province of Punjab---Child Marriage Restraint Act, 1929 remained protected and continued in force under successive constitutional arrangements and applied to Muslim and non-Muslim citizens---Originally, a female below fourteen years was defined as a child, but S.12 of the Muslim Family Laws Ordinance, 1961 raised the minimum age to sixteen years in relation to Muslim citizens---Following the Eighteenth Constitutional Amendment, different Provinces and the Islamabad Capital Territory enacted or adapted their respective child-marriage laws---As the controversy had arisen within Punjab, it was to be determined under the Child Marriage Restraint Act, 1929, as adapted and applicable in Punjab. (f) Child Marriage Restraint Act, 1929---Marriage of girl below prescribed age---Validity of marriage---Criminal liability---Act of 1929 restrained and criminalized solemnization of child marriages but did not expressly declare such marriage void or voidable---In absence of an explicit statutory provision invalidating the marriage, its legal status remained governed by the applicable personal law---Where Legislature intended to alter or abrogate settled personal law, it was required to do so in clear and unequivocal language---Statutory silence regarding validity of the marriage could not be interpreted as an intention to override Muhammadan Law---Reading invalidity into the statute would amount to judicial legislation---Marriage of a girl below the prescribed age could expose the adult husband and persons solemnizing the marriage to criminal liability, but the marriage itself did not become invalid merely on that ground. Cited Cases: Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 (W.P.) Karachi 442 Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323 Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437 Nasreen Bibi v. Station House Officer and others 2024 PCr.LJ 2058 Muhammad Khalid v. Magistrate 1st Class and others PLD 2021 Lahore 21 Muhammad Azam v. The State and another 2018 PCr.LJ Note 175 Muhammad Safeer v. Additional Sessions Judge (West), Islamabad PLD 2018 Islamabad 385 Allah Nawaz v. Station House Officer PLD 2013 Lahore 243 Allah Bakhsh v. Safdar and others 2006 YLR 2936 Ghulam Qadir v. Judge Family Court, Murree 1988 CLC 113 Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049 (g) Evidence---Proof of age---Birth registration certificate and Child Registration Certificate---Delayed registration---Evidentiary value---Father alleged that the woman was approximately twelve years and nine months old at the time of marriage, but had earlier stated in the F.I.R. that she was thirteen or fourteen years of age---Such inconsistency diminished the credibility of his version---Birth registration certificate and NADRA Child Registration Certificate had been obtained approximately seven and ten years, respectively, after the alleged date of birth without any satisfactory explanation for the delay---Delayed registration of birth was susceptible to manipulation unless supported by independent and reliable evidence---Child Registration Certificate also reflected a gap of less than eight months between the alleged date of birth of the woman and that of her younger sister, which created further doubt regarding its correctness---Nikahnama recorded the woman’s date of birth as 01.02.2007, she personally disputed her father’s claim of minority and her physical appearance indicated a more advanced age---Delayed documents could not, in such circumstances, constitute the sole basis for determining that she had been born on the date alleged by her father. (h) Criminal Procedure Code, 1898---Ss.164 & 491---Habeas corpus---Alleged illegal custody of woman by husband---Free-will marriage---Woman had consistently stated before courts, including in her statement under S.164, Cr.P.C., that she had not been abducted and had contracted marriage with the respondent of her own free will and consent---Marriage, even assuming the woman to be below the age prescribed by the Child Marriage Restraint Act, 1929, was not rendered void merely on that account and was valid under Muhammadan Law---Husband consequently occupied the position of her lawful guardian---Custody of the woman with her husband could not be termed illegal or unlawful in absence of any declaration by a competent court invalidating the marriage---Proceedings under S.491, Cr.P.C. were summary in nature and did not require determination of disputed matrimonial questions where material on record showed voluntary residence with the husband. (i) Constitution of Pakistan---Arts.199 & 36---Criminal Procedure Code, 1898, S.491---Successive proceedings for recovery of alleged detenue---Res judicata---Petitioner had previously instituted a constitutional petition seeking recovery of his daughter from the custody of the same respondent on substantially the same ground---High Court had considered the woman’s statement under S.164, Cr.P.C. and conclusively held that her custody with her husband was neither illegal nor unlawful---Said order was not challenged before a higher forum and attained finality---Determination operated as res judicata between the parties and the petitioner could not reagitate the same controversy through subsequent proceedings. Cited Case: Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145 (j) Precedent---Distinguishable case---Child Marriage Restraint Act, 1929---Judgment concerning discriminatory definition of “child”---Earlier reported judgment relied upon by petitioner concerned a constitutional challenge to different minimum ages prescribed for males and females and had no application to a controversy concerning recovery of a woman allegedly detained by her husband and validity of her free-will marriage. Cited Case: Azka Wahid v. Province of Punjab PLD 2025 Lahore 1 (k) Constitution of Pakistan---Art.175F(1)(c)---Leave to appeal---Interference with concurrent orders---No illegality, perversity, misreading or non-reading of evidence was found in the orders of the Additional Sessions Judge and the High Court---High Court had correctly appreciated the woman’s voluntary statement, the applicable personal law, the effect of the Child Marriage Restraint Act, 1929, and the finality of the earlier adjudication---No case for interference was made out. Disposition---Leave to appeal was refused and the petition was dismissed---Observations made in the judgment were declared not to prejudice or impede proceedings before the competent criminal court in the event that the prosecution in the registered criminal case proceeded in accordance with law.

Summary: (a) Constitution of Pakistan, 1973 ----Art. 199—Habeas corpus/Recovery of alleged minor wife—Scope—Where the alleged detenue is produced before the Court and unequivocally states that she has married of her own free will and wishes to reside with her husband, and there is prima facie material that she has attained puberty, her custody cannot be treated as illegal—Writ for recovery/production was not maintainable in the circumstances. (b) Mohammedan/Islamic Law ----Marriage—Competence—Puberty (bulūgh) and soundness of mind are the two basic attributes—Puberty is a question of fact ascertainable by evidence; in the absence of contrary proof, completion of the fifteenth year raises a presumption of puberty—Girl aged 15 years and 8 months, acknowledging marriage by choice, held competent to marry. [D. F. Mulla, Principles of Mohammedan Law, para. 251—referred.] (c) Child Marriage Restraint Act, 1929 ----S. 2 (definition of “child”)—Effect—The Act is penal in nature; it fixes minimum ages but does not render a marriage below the statutory threshold void or invalid—Subsequent amendments enhancing age did not alter this legal effect—Fixing minimum age is not repugnant to the Injunctions of Islam, yet the statute does not declare such marriages void—Marriage of post-puberty girl below statutory age not void; penal consequences, if any, are separate. (PLD 2022 FSC 1—followed in principle.) (d) Criminal Procedure Code, 1898 ----S. 491—Habeas corpus—Standard—If a post-puberty Muslim girl states she has married of free will, such marriage is valid under Muslim Personal Law; her husband is her lawful guardian and her custody with him is not illegal for purposes of habeas corpus. (1970 SCMR 437; PLD 1970 SC 323—followed.) (e) Evidence—Age/Puberty ----Presumption—In the absence of rebuttal, completion of 15 years entails presumption of puberty—Court may rely on the girl’s own statement on biological changes consistent with puberty when unrebutted by record. (f) Case law—Relied upon ----Mauj Ali v. Syed Safdar Hussain Shah (1970 SCMR 437); Mst. Bakhshi v. Bashir Ahmad (PLD 1970 SC 323); Muhammad Khalid v. Magistrate 1st Class (PLD 2021 Lahore 21); Mushtaq Ahmad v. Mirza Muhammad Amin (PLD 1962 (W.P.) Kar 442); Muhammad Banaras v. SHO (1995 P Cr L J 94). (g) Disposition— Writ petition dismissed; detenue, having attained puberty and expressing free-will to live with her husband, not in illegal custody. Approved for reporting.