2011 PCr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through the instant petition under section 491, Cr.P.C. Irfan Ahmad petitioner seeks the recovery of his wife, namely, Mst. Irum Bibi from the illegal confinement of respondents Nos.2 to 7 through a bailiff of this Court.

2. Briefly the facts, relevant for the disposal of this petition, are that the petitioner married with Mst. Irum Bibi according to the Islamic rites on 21-6-2010. After the marriage the wife of the petitioner, namely, Mst. Irum Bibi started to live with the petitioner but in a Panchayat convened by respondents Nos.2 to 7 it was settled that since the parents of the wife of the petitioner intends to get some ceremony for the purpose of rukhsati, therefore, through an agreement dated 8-10-2010 wife of the petitioner was taken back for three months. Thereafter respondents started to pressurize the detenue to file a suit for dissolution of marriage against the petitioner and on her refusal respondents Nos.2 to 7 have illegally detained her in the house which fact was told to the petitioner by the detenue over telephone. Hence this petition.

3. I have heard the learned counsel for the petitioner and also perused the documents attached with this petition. The sole purpose of the petitioner by filing this petition is to have the custody of his alleged wife through the process of the Court but this Court has to exercise its powers in accordance with law, in view whereof, the question which arises for determination by this Court is that as to whether the custody of the detenue with her parents is illegal or improper. If after consideration of the facts and law on the subject this Court comes to the conclusion that the detenue has actually been confined by her parents in an illegal and improper manner then this petition would be maintainable otherwise this petition would be rendered as not maintainable. In order to reach to a just conclusion provisions of section 491, Cr.P.C. are to be taken into account first and for the facility of reference said provision of law is reproduced hereunder:- "

491. Power to issue directions of the nature of a Habeas Corpus. (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 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 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 defendant within such limits be brought in on the Sheriffs return of cepi corpus to a writ of attachment. (1A) The High Court may, by general or special order published in the official Gazette, may 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 the cases under this section. (3) Nothing in this section applies to persons detained under any other law providing for preventive detention." Clause (b) of subsection (1) of section 491, Cr.P.C. is relevant for the purposes of determining the fate of this petition, according to which, a person illegally or improperly detained in public or private custody within such limits be set at liberty. Here in this case the petitioner is claiming that his wife Mst. Irum Bibi is being illegally detained by respondents Nos.2 to

7. Falak Sher respondent No.2 is father of Mst. Irum Bibi whereas respondents Nos.3 and 4 are her real brothers and Mst. Haleema Bibi respondent No.5 is her real mother. It is settled law that the parents of children are their natural guardians and the custody of the children by their parents cannot be termed illegal or improper, as such, the ingredients for invoking the provisions of section 491, Cr.P.C. are not available in the instant case. This Court is not oblivious of the fact that the trend of runaway marriages is severely penetrating in the society and in view of the law laid down by the apex Court in the case of Shaukat Ali v. Altaf Hussain Qureshi and another (1972 SCMR 398) the courts do not function in vacuum and must take due note of social and moral environments prevailing in community, as such, tendency on part of some young men to abuse provisions of section 491, Cr.P.C. in furtherance of their illicit love affairs should be curbed. It is very astonishing to note that Mst. Irum Bibi took birth in the house of her parents where she remained putting up and was grown up and till her marriage her custody with her parents remained lawful then after her entering into a marital tie with the petitioner as a result of their illicit love affair how can her custody with her parents be termed as illegal or improper. It is common tendency in our society that first of all young men develop illicit relations with teen age girls, solemnize marriages in secret manner and then to give protection to their such like illegal acts file habeas petitions in order to save their skin from any expected future criminal proceedings, as such, filing of habeas petitions in such eventualities do not seen to be a bona fide recourse on their part rather it can be termed that such like petitioners do not come to the court with clean hands disentitling themselves for grant of requisite relief. There is yet another custom prevailing in our society which also cannot be overlooked by this Court while considering the question of custody of a girl whether illegal or improper and that is that in case of divorce given by a husband to his wife then she undoubtedly after such pronouncement of divorce by her husband takes shelter in the house of her parents. Every person in our society rich or poor has respect in the vicinity and in the event of raid conducted by the bailiffs deputed by this Court who normally raid the houses of parents for recovery of the girls in the aid of police of relevant police station whole the family is disgraced and the dignity and honour of that family is wholly destroyed by such an act. In order to save the honour and dignity of such like families in the circumstances stated above, this Court should not be party to such acts of disgracing the honour and dignity of the affected families. In such circumstances, I am not at all inclined to depute a bailiff or any other process for the recovery of the detenue and to declare a marriage which is the result of an illicit love affair to be solemnized in accordance with the dictates of Islam as according to me such like marriages do not bring harmony among the people rather create further friction amongst them resulting into severe rivalry which openly turns into bloodshed enmity. Even otherwise, the law of the land has established family Courts for the resolution of such like family disputes and in the presence of such like forums I am not inclined to exercise my powers under section 491, Cr.P.C.

4. Upshot of the above discussion is that I find no force in this petition which is hereby dismissed in limine. H.B.T./I-3/L Petition dismissed.