2026 P Cr. L J 409

2026 P Cr. L J 409

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MOHAMMAD NAZEER---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE DISTRICT MUZAFFARABAD,

AZAD JAMMU AND KASHMIR and 3 others---Respondents

Petition No. 470 of 2025, decided on 26th November, 2025.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Illegal detention---Petitioner

filed a petition for the recovery of his daughter from the alleged

illegal and unlawful custody of private respondent---Detenue had

been produced by SHO of concerned Police Station in pursuance of a

direction issued by the Court---Detenue stated that she contracted

marriage with private respondent, who was also her real cousin

with her free and sweet will---Detenue denied to go with her

father/petitioner---Seemingly the alleged detenue was a grown up

girl and FIR in the relevant police station had been chalked out and

in furtherance of the same, investigation was underway---

Categorical stance of the alleged detenue was that neither she was in

any kind of confinement nor under any restraint; she added that she

was happily living with her husband (present in the Court)---Alleged

detenue and her husband decided to elope because their families

did not approve their love---Registered Nikkah Nama was on record-

--At present, the alleged detenue was living with her alleged

husband (present in the Court) who was her real cousin as well---

Alleged detenue refused to live in Dar-ul-Aman or return to her

father's custody---Ex-facie, a presumption of legitimacy has arisen in

favour of the validity of Nikkah and in case of conflict between any

codal law and the Injunctions of Islam pertaining to the validity of

marriage, all other man-made laws must yield to the Injunctions of

Islam---If the marriage is held valid in Shariah, it shall be held valid

for all practical purposes, unless the Nikkah is successfully

challenged and declared invalid by the competent Court of

jurisdiction---Petition, being meritless, was dismissed, accordingly.

Mohammad Ahmed Pansota v. Federation of Pakistan PLD 2020 Lah.

229 and Sadia Aziz v. DPO and others PLD 2025 Lah. 540 rel.

Raja Aftab Ahmed for Petitioner. Mohammad Pervez Mughal/Jabir Raza for Rozeena Nazir, alleged

detenue.

JUDGMENT

SYED SHAHID BAHAR, J.--- Once a marriage is De jure complete i.e.

having satisfied all wedified legal requirements, it is immutable by

public opinion. Elopement, therefore, cannot whittle down its legal

force under the doctrine of factum valet.

[1]

Although morally elopement is hardly approved in the social fabric

of our society but should be accepted as a bitter pill where all codal

and legal formalities are fulfilled towards contracting marriage.

2. This application under Section 491, Cr.P.C has been filed by one

Mohammad Nazir, the father of the alleged detenue to produce his

daughter before the Court.

3. After filing the supra application, SSP Muzaffarabad vide order

dated 24.11.2025 was directed to produce the alleged detenue Rozeena

Bibi daughter of Mohammad Nazeer before the Court positively on

26.11.2025, hence, after recovering the corpus of the alleged detenue,

SHO Police Station Saddar Naveed-ul-Hassan produced the detenue

before the Court today. The alleged detenue disclosed that she had

entered into a valid Nikkah with one Gulfraz Mughal who is also her

real cousin as well. She claimed to be a sui-juris lady. Mr. Pervez

Mughal, the counsel for alleged detenue produced a record of NADRA

and also stated that the alleged detenue has attained the age of liberty

i.e. sixteen years and eleven months old, being one-month shy of

reaching the age of seventeen.

4. On Court s query, the alleged detenue categorically stated that she

contracted marriage with Gulfraz Mughal (who is her real cousin) with

her free and sweet will. She further stated that the marriage was not

an elopement but a formally arranged ceremony. Furthermore, the

elders of Gulfraz Mughal s family participated in the marriage which

negates any suggestion of elopement or abduction. It transpires from

the record and statement of the alleged detenue that it is not a case of

abduction or elopement and as per the law of the land, a sui-juris girl

is at liberty to enter into the marriage with a person of her own choice,

however, the only impediment in this regard is the age limit.

5. Post 13th Amendment

[2]

, Principles of policy recognize the right

of the families qua their protection

[3]

thus, protection provided in the

Constitution should also be taken into consideration and must be read

with fundamental right No.1 of the Constitution as well as Principles of policy aid a purposive interpretation of Fundamental Rights in the

Constitutional framework in which they are found

[4]

. In the social

fabric of our society, although elopement is not a bitter pill to swallow

and is normally not accepted, leaving aside this aspect of the matter,

we must consider the outcome and aftermath of such marriages. We

have to go by the law of the land, as law permits a sui-juris girl to

enter into marriage with a person of her own choice. Therefore, it

cannot be questioned by anyone.

6. Furthermore, it should be noted that FIR in this regard has

already been chalked out at the relevant Police Station and the police

is currently investigating the incident. The petitioner then filed this

instant petition, circumventing the ongoing police investigation. The

alleged detenue and Gulfraz Mughal accused nominated in the FIR

have already obtained pre-arrest bail from the Court of competent

jurisdiction Muzaffarabad, where, the next date of hearing is fixed for

27.11.2025. Given that the FIR has already been chalked out pertaining

to the matter and the Police is investigating the matter by all angles

and the competent Court of jurisdiction, by entertaining the pre-arrest

bail application, has already taken cognizance of the matter.

Furthermore, the District Criminal Court/Sessions Court is also

equipped with the powers to pass/issue any appropriate order.

7. The alleged detenue was asked whether she is willing to go with

her father or husband, she positively replied that she will go with her

husband and categorically denied to go with her father present in the

Court. As the alleged detenue and the accused Gulfraz Mughal are

already on pre-arrest bail, so, let the matter be decided by the relevant

fora.

8. Seemingly the alleged detenue is a grown up girl and FIR in the

relevant police station has been chalked out and in furtherance of the

same, investigation is underway. Categorical stance of the alleged

detenue is that neither she was in any kind of confinement nor under

any restraint, she added that she is happily living with her husband

(present in the Court). They decided to elope because their families did

not approve of their love.

9. It would an ironic state of affairs that while taking up/considering

a Habeas Corpus petition under section 491, Cr.P.C, the Court finds the

alleged detenue is not under any sort of confinement, that too, with a

stance of contracting marriage in accordance with law which is

supported by registered documents, particularly Nikkah Nama, even

than the alleged detenue be ordered to be lodged at a Dar-ul-Aman

against the wishes of the alleged detenue, which would be wholly

unjustifiable and contradictory to the legal findings 10. By any way, Habeas Corpus proceedings are meant to secure

release of a person from an alleged or improper custody or

confinement

[5]

. It is useful to reproduce the verbatim of Section 491,

Cr.P.C as under:-

491. Power to issue directions of the nature of habeas carpus.

(1) Any High Court may, whenever it thinks fit, direct;

(a) that a person within the limits of its [appellate criminal

jurisdiction] be brought up before the Court to be dealt with

according to law;

(b) that a person illegally or improperly detained in a public or

private custody within such limits be set at liberty;

(c) that a prisoner detained in any jail situate within such limits be

brought before the Court to be there examined as a witness in

any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court

martial or any Commissioners for trial or to be examined

touching any matter pending before such Court martial or

Commissioners respectively;

(e) that a prisoner within such limits be removed from one custody

to another for the purpose of trial, and

(f) that the body of a defendant within such limits be brought in on

that Sheriff s return of Cepi Corpus to a writ of attachment.

(1A). The High Court may, by general or special order published in

the official Gazette, direct that all or any of its powers specified

in clauses (a) and (b) of subsection (1) shall, subject to such

conditions, if any, as may be specified in the order, be

exercisable also by

(a) a Sessions Judge; or

(b) an Additional Sessions Judge, within the territorial limits of a

Sessions Division]

(2) [The High Court] may, from time to time, frame rules to regulate

the procedure in cases under this section.

(3) Nothing in this section applies to persons detained under any

law providing for preventive detention.

11. The registered Nikkah Nama is on record. At present, the alleged

detenue is living with her alleged husband (present in the Court) who

is her real cousin as well. She refuses to live in Dar-ul-Aman or to return to her father s custody. Ex-facie, a presumption of legitimacy

arises in favour of the validity of Nikkah rather contra and in case of

conflict between any codal law and the Injunctions of Islam pertaining

to the validity of marriage, all other man-made laws must yield to the

Injunctions of Islam. If the marriage is held valid in Shariah, it shall be

held valid for all practical purposes, unless the Nikkah is successfully

challenged and declared invalid by the competent Court of

jurisdiction.

(Emphasis Supplied.)

As a corollary, the petition at hand merits no further consideration

and is, therefore, consigned to record.

Announced.

JK/61/AJK(H.C) Petition dismissed.