1973 PLP 577 (SCMR)

WAHEEDUDDIN AHIAD, J.‑This appeal by special leave is directed against the order of the High Court dated the :2nd May 1972. By this order, the High Court handed over the custody of the detenu to her husband in compliance with its order dated the 16th May 1972, against her wishes and gave police help for that purpose. Mst. Irshad Begum, daughter of the appellant, is the wife of Khalid respondent No.

1. Respondent No. 1 and the detenu lived together as husband and wife for about a month after their marriage. It is alleged by the appellant that due to cruel treatment of respondent No. 1, the detenu took refuge in the appellant's house. On the intervention of respectable persons of the village, the detenu again started living with respondent No.

1. She again left the house of respondent No. 1 and took refuge in the appellant's house as respondent No. 1 used to maltreat her. On the 6th April 1972, the detenu was forcibly taken away by the respondents and since then she was living against her wishes with respondent No.

1. The appellant moved an application under section 491, Cr. P. C., known as Criminal Misc. No. 222/11 of 1972, on v e allegation that Mst. Irshad Begum is sui juris. Respondent No. 1 is not, allowing her to move freely, and she is confined within the four walls of the house and is also being maltreated and tortured. Even the appellant is not allowed to see her. On these allegations, the High Court ordered the recovery of the detenu and after recording the statements of the witnesses and the detenu, handed over the custody of the detenu to respondent No. 1 by two orders dated the 16th May 1972 and 22nd May 1972. The detenu refused to accompany respondent No. 1 on which police help was made available to respondent No. 1 to take her away. The appellant has challenged this order in this appeal before us. Ch. Hamiduddin, learned counsel for the appellant, has contended that the detenu is a sui juris and cannot be forced to go with her husband by the High Court. According to him, this is not permissible in law and an unwilling detenu cannot be handed over to her husband. In support of his contention, the learned counsel has relied on a decision of this Court in Muhammad Rafique v. Muhammad Ghafoor (PLD1972SC6). It was held in this case as under:‑ "If the person is a minor the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may "set at liberty", but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561‑A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court." In reply, Mr. Muhammad Hassan, learned counsel for the respondents, submitted that the girl Mst. Irshad Begum wants to rejoin her paramour and thus lead a life of immorality and the Court cannot set her at liberty and give its blessings to lead a life of immorality. He contended that under the grundnorm namely, the ideological basis of Pakistan founded on Quranic injunction, it is not permitted. He also referred to a decision of a learned Single Judge of the Lahore High Court in Fateh Sher v. Sarang (P L D 1971 Lah. 128) in which it was held that a sui juris woman cannot be allowed to accompany her paramour in preference to her husband. It was also contended that the appellant has been divorced by her husband and she is ruining the matrimonial life of her daughter with respondent No.

1. After hearing the learned counsel for the parties, we are satisfied that under the Mohammadan Law, a sui juris woman cannot be forced to live with her husband against her wishes‑ Quranic injunction is against it. According to the Mohammadan Law, if there is disagreement between the husband and the wife, the wife is entitled to live separately from her husband. In the present case, there is disagreement between Mst. Irshad Begum and respondent No. I and in such circumstance, she is entitled to live with her mother. The observation of the learned Single Judge of the High Court that if Mst. Irshad Begum is set at liberty she will lead immoral life is irrelevant for the decision of the case under section 491, Cr. P. C. Under section 491, Cr. P. C., if a sui juris detenu is unwilling to go with her husband or guardian, the Court cannot compel her to go with them. She must be set at liberty and allowed to move freely. This position was made clear in the above mentioned case decided by this Court and the learned Single Judge should have set at liberty the detenu and allowed her to move freely according to her wishes. It is, however, open to respondent No. 1 to file a suit for restitution of conjugal rights against the detenu for the redress of his grievance. So far as the proceedings under section 491, Cr. P. C. are concerned, the only course open to the High Court in the face of the unwillingness of the detenu to go with her husband was to set her at liberty. The case of a paramour invoking the jurisdiction of the High Court under section 491, Cr. P. C. stands on a different footing and it is open to the High Court not to exercise its discretion in a case brought by such person. The decision of this Court in Shaukat Ali v. Altaf Hussain Qureshi and another (1972SCMR398) is to the same effect. The decision in the case of Fateh Sher v. Sarang is also of that nature. In the result, the appeal is allowed and the detenu is set at liberty. She is at present at the house of her mother and is allowed to continue to live with her. Appeal accepted.