' SHAHNAWAZ TARIQ, J.---Through the instant criminal misc. Application, the applicant Khushi Muhammad has prayed for the recovery of his wife Mst. Gul Naz from the illegal and wrongful confinement of respondents Nos.5 to 7.
2. Brief facts for the purpose of instant misc. Application are that Mst. Gul Naz, after swearing her free will affidavit contracted marriage with the applicant on her own accord and such Nikahnama was registered on 6-8-2013 at Karachi and they started residing there. The private respondents requested the applicant to allow Mst. Gul Naz for visiting and he permitted her for meeting purpose, but thereafter allegedly the respondents detained her and issued threats for dire consequences.
On such threats, the applicant approached the respondent No,4, S.H.O. Police Station Ranipur for recovery of Mst. Gul Naz from Punjab province, but he failed to recover his wife. He has prayed to direct the respondents Nos. 2 and 3 to recover his wife Mst. 'Gul Naz from the illegal confinement of respondents Nos.5 and 7 and produce the detenue before this court.
3. I have heard Mr. Sohail Ahmed Khoso, learned counsel for the applicant and Mr. Zulfiqar Ali Jatoi, learned D.P.G. For the State and minutely scanned the available record.
4. The learned counsel for the applicant has contended that the applicant contracted marriage with the detenue being sui juris and their nikah was performed at Karachi, but her parents were annoyed upon their marriage. Subsequently due to settlement between the parties, the private respondents approached the applicant to allow her for meeting purpose, and the applicant permitted her for visiting the respondents at their house at Sadiq Abad, Punjab. Thereafter, the private respondents detained her and are not allowing her to join the applicant. The applicant also approached the S.H.O. Ranipur, but he failed to recover the detenue. He prayed that respondent No,2, Superintendent of Police, Sadiqabad and respondent No,3, S.H.O. Police Station Sadiqabad, District Rahim Yar Khan, Punjab be directed to recover applicant's wife from the illegal detention of respondents Nos.5 to 7 and produce before this Court.
5. Conversely, the learned D.P.-G. Mr. Zulfiqar Jatoi has vehemently opposed the contention of the counsel for the applicant and has contended that the applicant with ulterior motives has filed instant petition before this court instead of the place where the alleged cause of action has been accrued, and even the present address mentioned in the memo of instant petition is also wrong which proves that he has not' approached this court with clean hands. He further contended that the language of section 491, Cr.P.C. Is clear that this Court would exercise constitutional jurisdiction to the extent of the territorial jurisdiction, therefore, issuance of such direction to local police to recover the alleged detenue from the Province of Punjab, would be beyond the jurisdiction of this Court and application is liable to be dismissed being non maintainable.
6. From anxious perusal of the available record and considering the arguments advanced, it has transpired that applicant and Mst. Gul Naz, both were ordinarily residing at Karachi where she had sworn her affidavit of free will before the Justice of Peace and their nikah was also performed there, and even after marriage the spouse were residing at Karachi. The private, respondents i,e, family members of Mst. Gul Naz approached the applicant at Karachi and with mutual consent the applicant allowed her to visit her parents at their house at Sadiqabad, Rahim Yar Khan, Punjab.
Now the applicant instead of availing legal remedy available under the relevant law, has come at Sukkur r the sole purpose to file instant Cr. Misc. Application before this court. In case of Irian Ahmed v. S.H.O. And 6 others, 2011 PCr.LJ 597, the court has observed as follows:-- "Here in this case the petitioner is claiming that his wife Mst. Irum Bibi is being illegally detained by respondents .Nos.2 to 7. Falak Sher respondent No,2 is father of Mst. Haleema Bibi respondents Nos.3 and 4 are her real brothers and Mst. Haleema Bibi respondent No,5 is her real mother is settled law that the parents of children are their natural guardians and the custody of the children by 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, This Court is not oblivious of the fact that the trend of runaway marriages is severely penetrating in the society and in view of the law laid down by the apex Court in the case of Shoukat. Ali v. Altaf Hussain Qureshi and another (1972 SCM R 398) 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. It is very astonishing to note that Mst. Irum Bibi took birth in the house of her parents where she remained putting up and was grown up and till her marriage her custody with her parents remained lawful then after her entering into a marital tie with the petitioner as a result of their illicit love affair how can her custody with her parents be termed as illegal or improper. It is common tendency in our society that first of all young men develop illicit relations with teenage girls, solemnize marriages in secret manner and then to give protection to their such like illegal acts file habeas petitions in order to save their skin from any expected future criminal proceedings, as such, filing of habeas petitions in such eventualities do not seem to be a bona fide recourse on their part rather it can be termed that such like petitioners do not come to the court with clean hands disentitling themselves for grant of requisite relief. 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 whether illegal and improper and that is that in case of divorce given by a husband to his wife then she undoubtedly after such pronouncement of divorce by her husband takes shelter in the house of her parents.
Every person in our society rich or poor has respect in the vicinity and in the event of raid conducted by the bailiffs deputed by this Court who normally raid the houses of parents for recovery of.The girls in the aid of police of relevant police station whole the family is disgraced and the dignity and honour of that family is wholly destroyed by such an act. In order to save the honour and dignity of such like families in the circumstances stated above, this Court should not be party to such acts of disgracing the honour and dignity of the affected families. In such circumstance, I am not at all incline to depute a bailiff or any other process for the recovery of the detenue and to declare a marriage which is the result of an illicit love affair to be solemnized in accordance with the dictates of Islam as according to me such like marriages do not bring harmony among the people rather create further friction amongst them resulting into severe rivalry which openly turns into bloodshed enmity. 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 forums I am not inclined to exercise my powers under section 491, Cr.P.0 . "
8. In case of Mst. Islam Khatoon v. S-H-O ice Station Manjoo Shori and 9 others, 2011 PCr.LJ 871, wherein it has been held as follows:-- "The alleged detainee was produced by Police in the court, which had got her statement recorded on oath. Detainee confirmed the allegations contained in the application filed by her grandmother under 5.491, Cr.P.C. Alleged detainee had also expressed her unwillingness to live with her husband, any more; and she expressed apprehension of threat to her life. Alleged detainee wanted to go and live with her father and her grandmother. Detainee being sui juris, could not be forced against her will to continue to live with her husband; she was at liberty to live with her parents if her husband wanted to seek conjugal rights, he could approach the competent court of jurisdiction for said purpose, whereas alleged detainee was at liberty to approach concerned Family Court seeking dissolution of marriage, if so advised. Alleged detainee was allowed to go wither father and grandmother. Criminal Miscellaneous Application stands disposed of in the above terms."
9. In case of Muhammad Javed Sagar v. Station House Officer and 2 others, 2011 PCrLJ 674, wherein it has been held as under:- "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 secret marriage in furtherance of her illicit love affairs with the petitioner how her custody with her parents/ respondent No,2 became 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 SCM R 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 mem 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."
' It has further been held as follows:- "Every person in our society belongs to a poor family or 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 hounour, 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 imine."
10. In case of Shoukat All v. Altaf Hussain Qureshi and another, 1972 SCM R 398, wherein it has been held as under:- "We are also inclined to agree with the view. Expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of the Cr.P.C. On the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question. For the foregoing reasons, we see no justification to interfere and would accordingly dismiss the petition."
11. The provisions of section 491 Cr.P.C. Are also crystal clear that any High Court may, whenever it thinks fit, direct to produce any person within the limits of its appellant in criminal jurisdiction be brought up before the court to be dealt with according to law or any person if illegally or improperly detained in public or private custody within the such limits be set at liberty.
12. From the above detailed discussion of the peculiar facts, relevant circumstances and cited case-law, it has been transpired that the applicant and his wife Mst. Gul Naz, while ordinarily residing at Karachi got married without consent of her parents. The private respondents are permanently residing at Sadiqabad, District Rahim Yar Khan, Punjab and they approached the applicant at Karachi and with mutual consent, Mst. Gul Naz proceeded to the house of her parents and thereafter allegedly she has been restrained by her parents from joining the applicant. Now the applicant has approached this court with prayer to issue rule of miss for production of his wifeput counsel for applicant has failed to satisfy this court regarding the occurrence of cause of action as well as ordinarily residence of the applicant within the territorial jurisdiction of this court.
Admittedly, the applicant and Mst. Gul Naz contracted their marriage in result of their love affair without consent and knowledge to her parents. The above referred circumstances are not inspiring confidence that she has been detained by her parents, and recovery of Mst. Gul Naz from the house of her parents through police, would definitely cause humiliation and disgrace to them in the society as well as in relatives and neighborhood. The custody of Mst. Gul Naz in house of her real parents could not be termed as unlawful and the path adopted by the applicant prima facie indicates mala fide on his part. The applicant if desires to seek conjugal rights he may approach the competent court having proper jurisdiction for said purpose.
13. For the foregoing reasons, instant criminal miscellaneous application being devoid of merits is dismissed.
2014 MLD 777 [Pes