2011 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this habeas petition under section 491, Cr.P.C. the petitioner has sought a direction from this Hon'ble Court for the recovery of his wife namely Asima Batool from the illegal and improper custody of respondent No.

2. It is stated that the detenue had contracted a valid marriage with the petitioner of her own free wish and volition and this fact is not only established from a registered Nikah Nama appended with this petition as Annexure-A but the same has also got substantiated from an affidavit sworn by Mst. Asima Batool detenue, Annexure-B wherein she has categorically stated that neither she has been abducted by anybody nor she has been forced to contract marriage but she has got married with the petitioner without any duress and coercion being sui juris.

2. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed by me that the trend of runaway marriages has severely been penetrated in the society and it has smashed-up the norms of a civilized and dignified culture. Now-a-days it has become a fashion that the teenagers and young persons frequently swayed with the passions of love affairs and in furtherance of their activities they without caring harsh attitude of their elders for this immoral act managed to contract secrete marriage. The trendsetters have invented a safe way in shape of filing habeas petitions to provide protections to their such secrete marriages and to avoid from any expected future criminal proceedings by the hands of their elders. This habeas petition is also a part of the same chain.

3. It can be observed without any degree of doubt that the sole purpose for filing of this petition is that the petitioner wants recovery of his alleged wife Mst. Aasima Batool through process of this Court by setting the provisions of section 491, Cr.P.C. into motion and, thus, the point of ponder to be determined by this Court here is that as to whether the custody of detenue with respondent No. 2 her brother is illegal or improper as has been alleged in paragraph No. 6 of this petition. The maintainability of this petition is subjected to invocation of the provisions of section 491, Cr.P.C. in its true spirits and prospects. If the petitioner proves the custody to be illegal or improper then he has come to this Court with clean hands otherwise he will be out of the Court. For the purpose of determining the fate of this petition, clause (b) of subsection (1) of section 491, Cr.P.C. is relevant which provides that a person illegally or improperly detained in public or private custody within such limits be set at liberty. Here admittedly respondent No. 2 is the real brother of the alleged detenue. It is astonishing to note here that Mst. Aasima Batool took birth in the house of her parents where she remained putting up, grown up till her alleged marriage but her custody thereat never dubbed as illegal or improper and as soon as she contracted secrete marriage in furtherance of her illicit love affairs with the petitioner how her custody with her parents/respondent No. 2 become illegal and improper. 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 with her parents as illegal or improper and the same is that in case of pronouncement of divorce by a husband, the wife undoubtedly takes shelter in the house of her parents. The law has quite settled by now that the parents of children are their natural guardians and the custody of the children with 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. In the case of Shaukat Ali v. Altaf Hussain Qureshi and another (1972 SCMR 398) it has been settled that 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. Thus, in view of the law laid down in supra case the provisions of section 491, Cr.P.C. are not available in this case for the purpose of recovering the alleged detenue from the custody of ' respondent No. 2.

4. It may also not be out of place to mention here that recovery procedure adopted in such like petitions by exercising the provisions of section 491, Cr.P.C. creates botheration in the vicinity from where the abductee has to recover. The manners and actions adopted by the police in the company of a Bailiff at the spot also create a sense of humiliation for the parents in the locality which fact of course aggravate the atmosphere of animosity between the rival parties and same leads to bloodshed enmity. Every person in our society belonging to a poor family or elite class has respect in the vicinity and in the event of raid conducted by the Bailiff deputed by this Court to recover the girls from the house of their parents with the aid of police they have disgraced and their honour, respect and dignity also destroyed. 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 forum I am not inclined to exercise my powers under section 491, Cr.P.C. The upshot of the above discussion is that I find no force in this petition and the same is hereby dismissed in limine. N.H.Q./M-703/L Petition dismissed.