P L D 1972 Supreme Court 6 (PLP)

We now proceed to give the reasons on which the order of the Court proceeds. The appellant filed an application under section 491, Cr. P. C., in the High Court on the allegations that his near relation Mst. Surraya Begum was abducted by Abdul Ghafoor, respondent, and he was keeping her in wrongful custody in his house in village Kahna. A Bailiff was deputed on 9-3-1970 to secure the person of Mst. Surraya Begum and produce her in Court. On her appearance in Court Mst. Surraya Begum supported the allegations made in the application and claimed that her father had forcibly obtained her thumb-impression on the Nikah Nama by which she was purported to have been given in marriage to the respondent. The parents of Surraya Begum too appeared in Court and denied the allegations and affirmed that she was lawfully married to the respondent and was living with him of her own free will. The learned Judge of the High Court was impressed by the statement made by the father of Mst. Surraya Begun which was corroborated by the Nikah Nama and the statement made by the Bailiff to the effect that he found her in the house of her in-laws with the doors of the house open and that she was under no constraint. The petition was, accordingly, dismissed and a direction given that Mst. Surraya Begum who was removed from the house of the respondent be given into his custody. Mst. Surraya Begum protested strongly against the direction whereupon she was ordered to be kept in Darul Aman for ten days and again produced before the learned Judge on 23rd March 1970. Leave to appeal from the order of the High Court was grant ed on 10-4-1970 to examine the legality of the direction that Mst. Surraya Begum be given into the custody of the respondent against the free will. On hearing the learned counsel for the parties and taking into consideration the provisions of sections 491, 561-A of the Code of Criminal Procedure and the Fundamental Right 1 that" No person shall be deprived of life or liberty save in accordance with law", the Court found no warrant in law for the direction given by the learned Judge about the custody of Mst. Surraya Begum. Section 491, Cr. P. C., under which the High Court exercised jurisdiction inter alia provides: "491.-(i) 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 ;" (The other clauses of the section are not relevant to the present case). The High Court has two-fold jurisdiction under this section; (1) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determi nation, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. 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 1s an abuse of the process of the court. It escaped the notice of the learned Judge that even a decree for restitution of conjugal rights passed by a competent Court is not executed by handing over the custody of the wife to the husband. Order XXI, rule 32, provides that where a party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it the decree may be enforced by attachment of his property. Cases in which decree is for the specific performance of a contract or for an injunction the decree may be enforced by his detention in the civil prison and by the attachment of his property so that even a civil Court cannot arrest a wife who refuses to go over to her husband notwithstanding that a decree for restitution of conjugal rights has been passed in favour of the husband. In view of this state of law we are clearly of the opinion that the order passed by the High Court that Mst. Surraya Begum be given into the custody of the respondent was without lawful authority. The appeal is accordingly allowed and the impugned order is set aside. K. B. A. Appeal accepted.