Table of Contents
Case Overview
Through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 491 of the Criminal Procedure Code (CrPC), the petitioner seeks to challenge the order dated 30.06.2020 issued by the Additional Sessions Judge, Taxila. The petitioner contends that the order is unlawful, arbitrary, and issued without proper hearing. Therefore, he requests the court to recover his daughter, Neha Ali, from alleged illegal custody.
Key Facts
Petitioner’s Claim
The petitioner alleges that respondent No.1, Ali Akash alias Asima Bibi, seduced his daughter, Neha Ali, into an improper marriage. He asserts that respondent No.1 is biologically female and thus invalidly claimed the status of Neha’s husband.
Initial Court Order
On 30.06.2020, the Additional Sessions Judge, Taxila, allowed respondent No.1’s petition for Neha’s custody. The court recognized respondent No.1 as Neha’s husband and permitted Neha to accompany respondent No.1.
Proceedings in High Court
Subsequently, the High Court directed Neha to appear in person. On 15.07.2020, the court ordered a medical examination to determine respondent No.1’s gender. Later, non-bailable warrants were issued for respondent No.1. Furthermore, on 07.08.2020, the court placed respondent No.1’s name on the Exit Control List (ECL) and froze their CNIC. Additionally, the court ordered Neha’s temporary lodging at Dar-ul-Aman, Rawalpindi.
Neha Ali’s Statement
Neha appeared before the court and stated that she voluntarily married respondent No.1, believing them to be male. However, she confirmed that the marriage had been dissolved. Moreover, Neha expressed a desire to live independently and pursue her studies. She also claimed she faced threats from her father and brothers and sought protection.
Legal Determination
Scope of Section 491, CrPC
Section 491 empowers the High Court to address illegal detention. The court can release a detained person but cannot resolve disputes regarding marital status or relationships. Consequently, these issues fall under the jurisdiction of family courts.
Rights of Sui Juris Individuals
The court reaffirmed that a sui juris (adult and competent) individual cannot be forcibly detained. Neha, being sui juris, has the right to live freely. Therefore, the court emphasized that Dar-ul-Aman is only for women in imminent danger, not for indefinite confinement against their will.
Judicial Observations
Importantly, the court ruled that the observations on Neha’s marriage status made in the 30.06.2020 order were beyond the Additional Sessions Judge’s scope. Determinations about marriage validity or gender must be addressed in appropriate family or criminal courts.
Court’s Decision
Neha Ali’s Liberty
The court set Neha Ali at liberty, allowing her to live independently. Authorities must also provide her with protection.
Role of NADRA
NADRA must review and resolve any issues regarding respondent No.1’s gender in accordance with the Transgender Persons (Protection of Rights) Act, 2018. Consequently, the ECL directive against respondent No.1 was withdrawn.
Future Legal Recourse
The petitioner may pursue marital or criminal claims in the proper forums. Any such cases will be resolved independently of this order.
Conclusion
In summary, the court disposed of the petition, reinforcing fundamental rights to personal liberty and due process. Additionally, it clarified the limited scope of habeas corpus proceedings under Section 491, CrPC.