Tuesday, 10 February 2015

Consent of Wali is not Mandatory for Nikah

PLJ 2014 Cr.C. (Peshawar) 573
[D.I. Khan Bench]
Present: Syed Afsar Shah, J.
EJAZ and 2 others--Petitioners
versus
Crl. M.Q. No. 15-D of 2014, decided on 24.3.2014.
----S. 561-A--Quashment of FIR--Admittedly, the star prosecution witness in the present case is wife of petitioner--She being sui juris muslim with her free will and consent has contracted marriage with petitioner and, as such, is enjoying her matrimonial life with him--Contents of nikahnama, copy of which is available on record, also supports her version--Moreover, the concerned SDPO in his report has also stated about the nikah of the abductee and recording of the statements of Nikah-Khwan and its witnesses--Held: Consent of Wali is not required and a sui juris muslim female can enter into valid nikah/marriage of her own free will--Marriage is not invalid on account of the absence of consent of Wali.    [P. 575] A & B
Mr. Ehsan Bilal Langrah, Advocate for Petitioners.
D.A.G. for State.
S. Abid Hussain Shah Bukhari, Advocate for Respondent No. 1.
Date of hearing: 24.3.2014.
Judgment
Through the instant petition under Section 561-A, Cr.P.C., Ejaz and two others have made a prayer for quashment of FIR No. 49 dated 7/2/2014 registered against them under Section 365-B/34, PPC in Police Station Paroa D.I. Khan.
2. Relevant facts for disposal of the present criminal miscellaneous petition are as under:-
On 7/2/2014 at about 1830 hours Ghulam Shabir made a report in Police Station Paroa to the effect that on the night of occurrence he alongwith his wife Mst. AzizaBibi, son Naimatullah and daughter Mst.Shaheen Bibi were sleeping in their bed-room, that at early morning when they woke up, it was brought in their notice thatMstShaheen Bibi was not available on her Charpai. He made her search in the houses of her relatives but she could not be traced, however, on queries it came to lame light that she has eloped with her paramour Ejaz for the purpose of marriage, that on search of the luggage of the house it was also brought in the notice of the complainant that Mst.Shaheen Bibi at the time of her elopement has also taken gold ornaments and cash amount. Ghulam Shabir, the complainant, in his first information report has charged the petitioners EjazEhsanullah and Fazal Elahi alias Fazal for abduction of her daughter.
The case was under investigation when in the meanwhile MstShaheen Bibi, the abductee, appeared in the Court of Illaqa Magistrate and as such got recorded her statement under Section 164, Cr.P.C. The original urdu version of the statement of the abductee is given as under:-
In view of the above statement of the abductee, the petitioners have come to this Court for quashment of the FIR.
3. I have heard arguments of the learned qounsel for the parties and perused the record of the case.
4. Admittedly and as is evident from the record initially on the report of Ghulam Shabir, father of the abductee MstShaheen Bibi, FIR was registered against the petitioners under Section 365-B/34, PPC. It appears from the FIR referred to above that as per version of the complainant, MstShaheen Bibi has eloped with her paramour Ejaz, Petitioner No. 1, for the purpose of illicit relations and marriage. The complainant in his first information report has also stated about taking of gold ornaments and cash amount of Rs. 50,000/- by MstShaheen Bibi at the time of her elopement. The matter was under investigation by the local police of Police Station Paroa when in the meanwhile MstShaheen Bibi, the star witness of the prosecution and the alleged abductee, appeared in the Court of lllaqa Magistrate and there she recorded her statement under Section 164, Cr.P.C. According to her she is major and sane and that she has contracted a valid Nikah with Ejaz, that she is living with him happily with her free will and consent. She has categorically stated that she has not been abducted by anyone. She has also denied the taking of gold ornaments and cash amount from the house of her father. Copy of nikahnama is also available on record and the same further supports the version of the abducteeMstShaheen Bibi which she has narrated in the Court of learned Judicial Magistrate. Even today she is present in the Court. She was not only identified by her mother but she is also having a computerized National Identity Card and she categorically stated that she is major and sane and that she has contracted a valid nikahwith Ejaz, Petitioner No. 1 with her free will and consent.
Admittedly, the star prosecution witness in the present case is MstShaheen Bibi. She being sui juris muslim with her free will and consent has contracted marriage with Petitioner No. 1 and, as such, is enjoying her matrimonial life with him. The contents of nikahnama, copy of which is available on record, also supports her version. Moreover, the concerned SDPO in his report has also stated about the nikah of the abductee and recording of the statements of Nikah-Khwan and its witnesses.
So far as this version of the learned counsel for Respondent No. 1 that the abductee has contracted Nikah with Petitioner No. 1 without the consent of her parents is concerned, I think he has misconceived the situation, in that consent of Wali is not required and a sui juris muslim female can enter into valid nikah/marriage of her own free will. Marriage is not invalid on account of the absence of consent of Wali.
5. In view of the above, the petition is allowed, resultantly, the impugned FIR Bearing No. 49 dated 7/2/2014 registered against the petitioners under Sections 365-B/34, PPC of Police Station Paroa D.I. Khan is quashed.
(A.S.)   Petition allowed

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