P L D 1980 Lahore 350 (PLP)

Mst. Bushra Perveen, petitioner wrote a letter to her counsel Mehr Ghulam Ali Mubashir, Advocate informing him that she had been forcibly detained by Abdur Rahman respondent in his house at Sheikupura and that he had threatened her that he would throw acid on her if she ever tried to leave his house. The petitioner had instituted a suit against the respondent in a Family Court at Lahore through Mehr Ghulatn Ali Mubashir, Advocate, contending that she had been divorced by the respondent and that he should be restrained from proclaiming her as his wife. Her aforementioned letter was treated as a petition under section 491, Cr. P. C. and a bailiff of the Court was deputed to recover and produce her in Court. She was produced in Court on 22-12-79 when her statement was recorded. She disclosed that she had been detained by the respondent in his house against her will and that he had also been maltreating her. She stated that she did not want to go to her parents as they were supporting the respondent against her.

2. The respondent also appeared in Court and made a prayer for an adjournment for filing a written statement which was allowed. In the written statement filed by him he contended that the petitioner was his lawfully wedded wife and that she was living with him in her parents house when during the month of Holy Ramazan in 1979 she slipped away from the house. A search of her belongings left by her in the house led to the recovery of two letters. One of the letters was written by one Munir Bhatti to the petitioner while the other was written by the petitioner to him. The respondent submitted a petition to the Martial Law Authorities complaining that Munir Bhatti, Mirza Muhammad Ibrahim and Mst. Zohran Bibi had enticed away his wife Mst. Bushra Perveen. The above petition was referred to the S. H. O., Police Station City, Sheikhupura with a direction to inquire into the matter and register a case if necessary. During the investigation of the case, Munir Bhatti admitted that Mst. Bushra Perveen was in his house from where she was, later on, recovered by the Police and produced in the Sub-Martial Law Headquarter, Sheikhupura. She agreed to return to the respondent's house and the respondent undertook to pay Rs. 11,390 to Munir Bhatti which he had allegedly paid to Mst. Bushra Perveen. The respondent after selling his house paid the aforementioned amount to Munir Bhatti on 17-12-79. Two days later a bailiff of this Court came to his house alongwith the Police and took away Mst. Bushra Perveen with him. The respondent contended that Mst. Bushra Parveen was not under illegal detention and that she had sent the letter to her counsel so that she might be able to get an opportunity to go with Munir Bhatti after she was produced in Court.

3. In the rejoinder filed by Mst. Bushra Perveeri she controverted the allegation made against her that she had been carrying on love affair with Munir Bhatti. According to her the respondent had divorced her on 18-6-79 and had sent Talaqnama to her on .the basis of which she had instituted a suit against him in the Court of Mr. Muhammad Hussain Malik, Judge Family Court, Lahore. She contended that the respondent had detained her in the house against her will and that her parents also helped him in that behalf.

4. The learned counsel for the respondent has contended that there is no proper petition under section 491, Cr. P. C. before this Court as the letter written by Mst. Bushra Perveen was addressed to her counsel and not to this Court. There is, however, no force in this contention as hi aforementioned letter was submitted by Mehr Ghulam Ali Mubashir Advocate, before my Lord the Chief Justice who was pleased to treat it as a application for habeas corpus. The office was directed to place it before a Single Bench of this Court for hearing. An order for recovery and the production of Mst. Bushra Perveen in Court was passed by me on 19-12-79 when the aforementioned letter which was treated as a petition was fixed for hearing by the office.

5. It has been further contended by the learned counsel for the respondent that the report of the bailiff submitted in this Court does not indicate that Mst. Bushra Perveen was under detention or any restraint had been placed on her movement, as he had found her sitting in the courtyard of the house. Under the circumstances no order-for setting her at liberty as contemplated under section 491, Cr. P. C. need be passed in the present case. The learned counsel for the respondent has, however, not considered the statement of Mst. Bushra ..Perveen where she has positively asserted that her movements had been restrained, by the respondent. In her letter addressed to her counsel she has also stated that she had been threatened by the respondent that in case she left his house he would throw acid on her.

6. The next point urged by the learned counsel for the respondent is that the respondent being the husband of the petitioner is entitled to detain her in his house particularly in view. of the fact that in the past she had eloped with Munir Bhatti. Under Muslim Law the husband is entitled to the custody of his wife .and if he places soma restrictions on the movement of his wife on-,account of her objectionable conduct it cannot be said that he has detained his wife, illegally. According to the learned counsel for the respondent in such a case an order under section 491, Cr. P. C. for setting the wife at liberty would not be- justified. Petitioner's refusal to go 'and live with her .parents. or with the respondent clearly indicates that she wants .to go . with -her paramour Munir Bhatti which should not be permitted by this Court ._ by passing an order for setting her at liberty. The learned counsel for the respondent has . referred to Ramzan v. ` Ch. Muhammad . Aslam, Magistrate First Class, Sahiwal and 3 others (1) where a Muslim married woman was not allowed to go with her paramour who had filed a habeas corpus petition before the High Court even though she had, declined to go with her father and . had expressed the desire to go with. the petitioner- The learned counsel for the petitioner, on the other hand, has contended that the petitioner is no longer the wife of the respondent as the latter had divorced her by means of a talaqnama executed by him on 19-6-79. The respondent had even given a notice of talaq to the Chairman of Union Council, Gbari Shahu, Lahore. Later on when the respondent changed his mind and insisted that the petitioner should live with him as his wife, 4 suit for declaration was filed by the petitioner in the Family Court Judge, Lahore. The respondent's contention that he being a Muslim, :is, entitled to detain the petitioner in his house as his wife, is, therefore, without substance. The learned counsel for the petitioner has also referred to Muhammad Natvaz v. Rab Nawaz and another (2) where it was held that a girl who was' sui juris and had expressed her desire to go with her father could not be compelled to go and live with her husband when she had already challenged the validity of nikah in the Family Court.

7. I have carefully considered the .arguments of the parties' counsel, Mst. Bushra Perveen has contended 'that the respondent has divorced he and that she is no longer his wife. The respondent, on the other hand, controverts the petitioner's above contention. The matter will be finally determined by the Family Court in which the suit instituted by the petitioner is pending. Since the subsistence of marriage' between the parties is a disputed fact, it is not possible to support the 'respondent's contention that he being the husband -of the petitioner is entitled under the Muslim' Law to detain her in his house. The case of Ramzan v. Ch. Muhammad Aslam Magistratf First Class, Sahiwal and 3 others, relied upon by the respondent in support of his above contention is, therefore, not relevant because in the aforementioned case the detenu was not married to the petitioner and she had expressed the desire to go with him in preference to her husband with whom her marriage was subsisting and had not been dissolved. The .petitioner in the present case is being detained by the respondent in his house after she has filed a suit against him for declaration that her marriage with the respondent has been dissolved as he has divorced her. She is entitled to pursue her suit which would not be possible for her if she is compelled to go and live with the respondent in his house. The petitioner does not want to go with her parents as they are supporting the respondent against her. She has refuted the allegation of the respondent that she has been carrying on a love affair with Munir Bhatti and there is nothing to indicate that she wants to go and live with him. She has stated that she is a qualified Midwife and that she can earn her livelihood by working as a Midwife. (1) P L D 1972 Lah. 809??????????? (2) P L D 1976 S C 298

8. In view of the circumstances noticed above the petitioner cannot be compelled to go and live with the respondent in his house. ' The respondent undoubtedly placed restrictions on her movement while she was living in his house. The petitioner is set at liberty and is allowed to go wherever she likes. Her prayer for police assistance to enable her to reach her destination is also allowed.

3. A, H. ?????????? Order accordingly.