1976L102 (PLP)

4. The other girl Mst. Matlooban, however, could not make coherent or logical answers to the preliminary questions put to her in view of the assertion of the petitioner's counsel that she was not of sound mind. She was, therefore, at the instance of the petitioner, got medically examined at the Mental Hospital, Lahore on 16‑10‑1975, in the result of which she was found, in the opinion of the Psychiatrist, to be "a subnormal individual, mental age about 8/10 years and physical age between 18‑20 years". The Psychiatrist further stated in his report that "from the history given by her mother, it has come to light that she is congenitally subnormal".

5. Both the girls have been, from the date they were produced in the .Court, kept at Darulaman, Lahore at the request of one or the other party. On 29‑10‑1975, when the girls were produced in the Court from Darulamam, Mst. Razia made a further statement reiterating that she and her sister had been forcibly kidnapped by the respondents and that her marriage had been performed in spite of her protest and her thumb‑impression had been obtained on the nikahnama under threat of death. She again insisted on going with her mother and not with her husband. She, however, admitted that the houses of the respondents are in the same village as, that of their mother and that their mother had been present at the marriage, adding that she (her mother) had protested against the marriage being performed. In yet another statement made before this Court on 20‑I1‑1975, she retracted her previous statement that her mother had been present at the time of her marriage and added that she wanted to sue for dissolution of her marriage and for recovery of her land, which she could not do because of her confinement under lock by her husband.

6. It is diffcult to accept the contention raised in the petition that the girls had been kidnapped and had been'forcibly married to the respon dents. The marriages had taken place on 25‑3‑1973. The relevant nikahnamas, have been produced. The respondents are the resiaents of Daulatala which is the same village where the petitioner used to live at that time. Moreover, Mst. Razia's statement made on 29‑10‑1975, even though later re tracted, shows that the petitioner had been present at the time of the marriage, and although she is stated to have protested against the marriage, nothing has been produced to show that she had carried her protest into effect by taking the matter to the police or the Court. She remained quiet for two and a half years until she moved the present petition. There is, therefore, reason to believe that the marriages had been performed with: the consent of the petitioner.

7. Mr. Irsbad Ahmed Qureshi, learned counsel for the petitioner, however, urged that in view of the conduct of respondents in treating cruelly the girls and in depriving them of their property and in view of the express wish of Mst. Razia, and of the doubtful validity of the marriage of Mst. Matlooban because of her mental immaturity, the girls' custody with the respondents was improper and they should be allowed to go with the petitioner, their mother. This was vigorously opposed by Mr. Rafique Ahmad Bajwa, learned counsel for the respondents, on the ground that the respondents who were lawfully wedded husbands of the girls. were entitled to their custody and that the petitioner who was accustomed to immoral ways of life was neither entitled to the custody of the girls nor would the handing over of the girls to her be in their interest and welfare. To support the contention that the petitioner lived in immorality, an affidavit dated 25‑9‑75 of Malik Akhtar, said to be the real brother of the petitioner, was filed. When the petitioner denied that Malik Akhtar was her brother, affidavits of Dost Muhammad, Muhammad Yasin and Umer Din, all co villagers of the respondents, were furnished to show that Malik Akhtar was the real brother of the petitioner. The petitioner admitted that after the death of her husband Abdullah. she married one Mushtaq but submitted that he orally divorced her and since then she had been living separately. She further denied having any illicit connection with Muhammad Nazir but admitted that she was living with Mst. Mehfoo‑ zan, wife of that Nazir, in the same house where Mst. Mehfoozan's son, his wife, and his children also lived. She also denied, through affidavit,. having had any immoral link with one Abdul Majeed or having given away her land to him and asserted that in fact she was prosecuting himi under section 420/406, P. P. C., in the Court of Magistrate Gujjar Khan.. She produced a copy of her complaint lodged in that Court. She further denied that she intended to introduce the girls to immoral living. She asserted that; she only wanted to secure their liberty and to safeguard their property for themselves. She produced affidavits of Naseeb‑ud‑Din and Naseer‑ud‑Din both of village Daulatala to the effect that she was "a noble lady having good moral character". In view of the petitioner's firm denial, supported by affdavits, that she lived an immoral life, I have no reason to accept that she is a woman of easy virtues or her interest in moving this petition is only to induce her own real daughters to follow an evil path.

8. The petition was opposed also on the ground of falsity of the allegations contained therein. Learned counsel for the respondents pointed out that although the petitioner had, in the petition, attributed the loss of balance of mind of Mst. Matlooban to atrocities committed on her by her husband, the allegation had been belied by the medical report, according to which from the history given by the petitioner herself, the sub‑normality of Mst. Matlooban was cogenital. The allegation regarding the disposal of the girls' property by their respective husbands was not denied by the respondents but it was urged that the transactions had been effected with the consent of the girls and in order to protect their property from being wasted by their mother. I need hardly go into these contentions because the basic question relates not so much to the qualification of the petitioner as to the right of the girls to have their wish respected. The question, arising particularly in the case of Mst. Razia, is whether a Muslim girl aged 16/17 as she is, who is duly married, can be allowed, in accord with her wish, to go out of the custody of her husband. Mr. Rafique Ahmad Bajwa urged that the extraordinary jurisdiction of this Court under section 491, Cr. P. C. is not to be invoked in matters relating to matrimonial affairs. For this, he relied on Ghulam Muhammad v. Fakir Muhammad and another (PLD 1975Kar.118), whereby an application filed under section 491, Cr. P. C. by the brother of the wife on the allegation of her wrongful detention by her husband, had been dismissed with the following observation :‑ ‑ "Under the social pattern prevailing in our country, it can be safely said that a girl's abode, after her marriage, is in the house of her husband. Disputes between the spouses, who under the solemn vow taken at the time of the wedlock, to live with each other for the lifetime of one another for better or worse, are bound to occur several times in their lives. No doubt these disputes quite often lead to separations, but it is equally often, if not more so, that such separations are only temporary phases and these end in happy lifelong re‑unions. The disputes of this kind are normally settled by the relations of the parties and/or the elders of the family to which the parties belong, and all the time the attempts are made at the preservation of the marriage, rather than its destruction. Such attempts are to be made even as a requirement of law, if the dispute gives rise to litigation before the Family Court. The normal venue for settlement of the disputes regarding matrimonial affairs is the Family Court of relevant jurisdiction, unless, of course a criminal offence is also involved for which the aggrieved party chooses to seek the redress." .The above observation, no doubt, deserves the highest consideration in ,appropriate situations, but with all due respect, I must say that it is difficult to lay down a rule that matters relating to illegal or improper detention involving married persons, cannot be brought under section 491, Cr. P. C. There are numerous decided cases in which the question of detention of a married woman has been dealt with under this provision of the Law. In Amir Bukhsh v. Mehar All etc. (P L D 1962 Kar. 725) it had been observed: "Under sec ‑tion 491, Cr. P. C., this Court is only concerned with the question whether the detenu produced before it is living of her own free will with the ;party against whom the allegation of illegal detention is made." It, therefore, cannot be said that the High Court, even in a proper case, is not to .exercise its discretionary powers to extend relief to a married woman who is being improperly detained.

9. Learned counsel for the respondents, next contended that the matter actually involves the custody of the girls, and as such the principles .of the Guardian and Wards Act will apply. For the purposes of this Act, .a person is to be treated as minor unless he/she has attained majority under the Majority Act, 1875. It was, therefore, urged that the girls being .minors, their custody belongs to their respective husbands who are their rightful guardians. In support of this assertion, reliance was placed on Muhammad Sadiq v. Mst. Sadiq Safoora (P L D 1963 Lah. 534). This cited case had arisen from .an application filed before the Guardian Judge, Lahore under section 25 .of the Guardian and Wards Act, 1890, by the father for the custody of his minor daughter who was living with her mother. The question of majority had thus, of necessity, to be decided in accordance with the Guardians and Wards Act, which is not always the case in a petition for habeas corpus. Learned counsel, however, further argued that the rule of Muslim Law regarding Majority could not be pressed for depriving the husband of his lawful custody of the wife, though if she was in the custody of someone else including her parents and if she wanted to go with her husband, and she was a major under the Muslim Law, there she was ‑invariably allowed by Courts to go with her husband but not the other way round. For this, be relied particularly on Fateh Sher v. Sarang (P L D 1971 Lah. 128) and Muhammad Raique v. Muhammad Ghafoor (P L D 1971 Lah. 343). In the first cited case, the woman who wanted to go with her paramour, had been ordered against her wish, to go with her husband. In the latter case, the High Court had ordered the woman to go with her husband against her wish and upon ,her refusal to do so, had directed her to be detained in Darulaman for fifteen davs after which to be produced again before the Court. Both these authorities stand superseded by the Supreme Court, the first by Mst. Sahi B1. v. Khalid Hussain and others (P L D 1963 Lah. 534) and the second by Muhammad Rafique v. Muhammad Ghafoor (PL D 1972SC6) which was the appeal against the High Court's very decision. In the latter case, while striking down ‑the direction of the High Court, their Lordships had observed:‑ "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, Cr. P. C. 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."

10. It was, nevertheless, argued on behalf of the respondents, on the basis of the above observation of the Supreme Court, that as the girl, for the purposes of habeas corpus, is minor, her custody, as observed by the Suprem Court, is to be made over to the guardian, which would be dealing with her in accordance with law, as laid down under clause (a) of subsection (1) of section 491, Cr. P. C. Learned counsel urged that the girl cannot be set at liberty unless she is sui juris under the general Law and that she must till then remain in the custody of the husband who is her lawful guardian. I am unable to agree. The Majority Act, 1875, has adopted two distinct and yet concurrent periods of majority. Section 2, .clause (a) of that Act declares: "(2) Nothing herein contained shall affect‑ (a) the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption . . . . . . . .". Section 3 provides that "Subject as aforesaid" every minor who should not be a ward of Court, should be deemed to attain his or her majority on the completion of the eighteenth year and "not before". So far as the personal emancipation of minors is concerned, the Act leaves untouched the provisions of the Muslam Law. It has specially excepted from its operation the capacity of the Muslim "to act in the matters" of marriage, dower and divorce. Now majority is presumed among Muslims on the completion of the 15th year in the case of both males and females. For conjugal matters, therefore. the majority of a Muslim woman is to be regulated by Muslim Law and not the Majority Act. "The Mohammadan Law", according to Syed Amir Ali, vide Mohammadan Law, 1965 Edition. Volume 11, pages 380 and 381, "lays down distinctly that a wife is bound to live with her husband and to follow him wherever he d‑.sires to go. . . . . The obligation of the woman, however, to live with her husband is not absolute. The Law recognises circumstances which justify her refusal to live with him". Even where the husband has obtained a decree for restitution of conjugal rights, the wife cannot be compelled to live with him. The contention that a woman, even if major under the Muslim Law, cannot be allowed to leave the custody of her husband until she has attained majority under the general law, has thus no substance. In the aforecited case of Mst. Sahi Bi (1973 S C M R 577) the Supreme Court had observed:‑ "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 disagree ment between the husband and the wife, the wife is entitled to live separately from her husband." The term sui juris has been used obviously in [the context of Mohammadan Law, for, a woman who is suf juris under the general Law, cannot, even otherwise, be forced to live with her husband. The reference to the Mohammadan Law was, therefore, relevant only where the woman was not a major under the general Law. The observation also makes it clear that a Muslim female who is sui juris under the Mohammadan Law was "entitled" to live separately from her husband. Learned counsel for the respondents failed to cite any authority still holding the field where an unwilling Muslim female aged between 15 and 18 years has been forced against her wishes to go to her husband. It was held in: Zafar Khan v. Muhammad Ashraf Bhatti etc. (P L D 1975 Lah. 234) though in the context of allowing the girl to go with her hasband, that "no restraint could be placed on the movements of the girl who was fifteen". In Ghulam Hyder v. The State etc.) Cr. Misc. No. 990‑11/1975), decided on 1‑12‑1975, where the girl was below fifteen, a learned Single Judge of this Court, had in a tie between the father and the husband of the girl, ordered her to be lodged in Darulaman until she attained the age of fifteen, whereafter she was to be set at liberty.

11. Learned counsel for the respondents still urged on the basis of Ramzan v. Ch. Muhammad Aslam, Magistrates 1 Class and 3 others (P L D 1972 Lah. 809) that the husband had the right to detain and even to punish his wife in order to restrain her from indulging in indecency and immorality, and as such Mst. Razia's allegation, even if it be true, that she gets beating from her husband, would not entitle her to leave his custody. As already held by me, there is no sufficient material to hold that the girl was seeking her liberty only in order to indulge in immorality. Maltreatment by husdand is a relevant ground against the husband for the purposes oflt section 491, Cr. P. C.‑See Siddique v. Fateh Muhammad (1968 P Cr. L J 1758).

12. In the result of the above discussions, I am satisfied that Mst. Razia Bibi, in view of her statement and allegations against the conduct of her husband of cruelty and of disposing of her property, is entitled to have her wisbes respected. I, therefore, order that Mst. Razia who is at present lodged in Darulaman be set at her liberty and be allowed to go with her mother as desired by her. As regards the other girl, i.e. Mst. Matlooban, although she is according to the medical report of 18 to 20 years of age, but in view of her mental immaturity as reflected in that report, her case is to be treated as that of a minor. The prayer qua he z thus amounts to one for her custody for which the petitioner should take recourse to the proper ‑ forum. Learned counsel for the petitioner prays that she be kept at the Darulaman for a further reasonable period so that the petitioner may move the Guardian Judge for her custody. In view of the coming vacations, I order that she be kept at the Darulaman, Lahore for futher one month at the petitioner's expense and that if no order is passed for extending the period of her stay in Darulaman or otherwise by proper Court, she be. after the expiry of one month from now, restored by Darulaman to her husband, Muhammad Rafique respondent No.

2. The petition stands disposed of in. these terms. S. Q. Order accordingly.