KARACHI: The Sindh High Court Wednesday ordered that Dua Zahra, who married of her own free will in Lahore, is set at liberty to decide with whom she intends to reside and go along.
Turning down Dua’s parents request for cancellation of marriage on ground of being under 18 years of age and custody of their daughter, the SHC’s division bench comprising Justice Mohammad Junaid Ghaffar and Justice Amjad Ali Sahito observed that the court cannot determine factual disputes, as it may affect and prejudice the interest of any of the parties. The court observed that the aggrieved parties, if any, are always at liberty to contest and agitate the same before the competent court seized with the matter already lodged by the father of Dua Zahra.
The investigation officer submitted the medical report of the Karachi Police surgeon in compliance of court's order, which stated that as per the opinion of doctors and the Department of Radiology the bone age of Dua Zahra was between 16 and 17 years.
The counsel for Dua Zahra contested the medical report regarding her age and submitted that she was a minor and under age of 14 years. The court observed that apparently the petition has served its purpose, as it was only to the extent of whereabouts of the girl who had already been produced before the court and she categorically stated on oath that she was neither abducted nor kidnapped but had entered into a contract of marriage with Zaheer Ahmed.
Regarding the allegation of underage marriage levelled by the petitioner, the court observed that the high court cannot determine such factual disputes, as it may affect and prejudice the interest of any of the parties.
The court observed that the Supreme Court had held that it was inappropriate and undesirable, if not illegal for the high court to determine the fate of the couple by adjudicating the validity of the marriage on the touchstone of injunctions of Islam, in proceedings under Section 491 Cr.P.C., which are in fact akin to the provisions of Article 199(1)(b)(i) of the Constitution.
The judges observed that the court must not determine the veracity of the allegations and must not dilate upon the same any further. The court, however, directed the investigation officer to file his final police report before the trial court along with the age certificate and the statement of Dua Zahra recorded before the high court. The court observed that the trial court which seized with the matter shall proceed in accordance with law.
On the provincial law officer's request for custody of Dua Zahra for production before the Lahore High Court, the court observed that it will not pass any further direction to such effect after production and recording statement of the girl, however, police are at liberty to produce her, if so required. The court also turned down the petitioner's request for again recording the statement of Dua Zahra who claimed that she changed her mind after meeting with parents and wanted to go with them. The court observed that the girl had already recorded her statement on oath before the court.
Petitioner Syed Mehdi Ali Kazmi had submitted in the petition that Dua Zehra was underage and 14 years of age and belongs to Shia sect, and her marriage without Wali and under the law of the Sindh Child Marriages Restraint Act was also void and ab initio. The court was requested to direct the police to ascertain her whereabouts and recover the minor girl and set her free from illegal detention from her alleged spouse.
