In this application under section 491 of the Code of Criminal Procedure, preferred by one Muhammad Rafique, who claims to be the husband of a real sister of Mst. Surayya Begum, daughter of Muhammad Din, it has been alleged, that aforesaid Mst. Surraya Begum was residing with the petitioner for the last about five years, because her parents were not in a position to support her "and all of a sudden on last Saturday the detenu disappeared from the house of the petitioner and after a long pursuit, the petitioner found that she is being illegally and improperly detained by the respondent at Kahna. She is being detained against her will and wishes". It is further alleged, that the detenu was being detained by the respondent with a view to force her to marry him. She was also beaten on her refusal to agree to the marriage and it was likely, that if she continued to refuse to marry the respondent, she would be killed. It was on these allegations, that it was sought, that she be directed to be produced before the Court and set at liberty.
2. In view of the allegations, that the alleged detenu was being illegally and improperly detained by the respondent against her wishes, a bailiff of this Court was deputed to recover her and produce her on 10th March 1970. Since the petitioner happened to be distantly related to the detenu, a further direction was made, that he shall deposit a sum of Rs, 50 which in case of the failure of the petition, shall be paid to the respondent as costs.
3. Pursuant to the order of this Court, Khawaja Muhammad Ramzan bailiff of the Court, went to village Kahna and after securing the help of the local police, raided the house of the respondent.
The latter was not there. However, the alleged detenu Mst. Surraya Begum was in the house and she was taken into custody. She was brought to Lahore on 9th March 1970, and lodged her in Dar- ul-Aaman, where from, she was produced in Court on 10th March 1970. The respondent also appeared and produced a copy of nikah nama, which indicated, that about five days before the filing of the petition the alleged detenu had been married to him. The parents of Mst. Surraya Begum, who were not party to this petition, also put in appearance voluntarily.
4. Statement of the detenu was recorded. She deposed, that about 11 days prior to her appearance, while she was in her house, located in Mohallah Paniwala Talab in Lahore, she heard a knock at the door. She was then sitting on the roof. She came down and opened the door. As she did so, the respondent caught hold of her and put her in a taxi and took her away by force to Kahna, where he kept her in his house. She was being detained there without her consent. At the suggestions of the respondant's counsel, she was asked a few questions and her replies thereto are as under:-- "The name of my father is Muhammad Din. He is present in Court. The name of my mother is Mst.
Mehraj Bibi. It is incorrect that I was married by my parents to the respondent on 28th February 1970. I have seen nikahnama marked "A". I cannot say, whether it bears my thumb-impression at "X". Again said, I was beaten by my father and forced to thumb-mark this document."
5. As the father and the mother of the detenu were present in Court, I decided to record their statements. Both of them deposed, that their daughter Mst. Surraya Begum used to reside with them and they had married her to the respondent about eleven days earlier to their appearance in Court. The father further deposed, that after the marriage, Mst. Surraya Begum began to live with her husband Muhammad Ohafoor at Kahna as his wife. The mother deposed, that the petitioner, without any rhyme and reason and in order to disgrace them, had filed the instant petition.
6. After recording the statements of the parents of the detenu, I recorded the statement of the bailiff. He deposed, that when he raided the house of the respondent, he found the detenu Mst.
Surraya Begum sitting in the company of her in-laws in a room. The door of the room was open.
7. Counsel for the parties requested for time to argue the matter. The case was thus adjourned to 11th March 1970. Arguments were heard on that day.
8. From the evidence, brought on the record, I am of the view, that in all probability, there is a conflict between the parents to Mst. Surraya Begum and the petitioner, who is her brother-in-law, regarding her marriage to the respondent. Normally, I would presume that the parents would be more interested in the welfare of their daughter than the brother-in-law. The petitioner, as has been indicated above, is the husband of a sister of the detenu. He cannot have more sympathy with her than her parents. I am, therefore inclined to hold, that he is unnecessarily putting hurdles in the way of the detenu and her husband, leading a happy marital life. He seems to be interested in this matter on account of some ulterior motive and that is why, none ells than the mother of the detenu Mst. Mehraj Bibi, had to state that the petitioner bad filed this petition without any rhyme or reason, in order to put them to disgrace. Discretionary relief of the nature of Habeas Corpus is granted by this Court, when even it finds, that some person is being illegally and improperly detained. The husband's custody of his wife, normally, is not illegal or improper detention, though in certain cases it may become so. This was the view expressed by Mr. Justice Nazeer Ahmad Mahmood, as he then was, in State v. Ashfaq Ahmad Sheikh. I am in respectful agreement with the aforesaid view. It would be pertinent to note, that according to the petitioner's averments in the petition, the detenu disappeared from his house only five days before he filed this application. The contention of Mst. Surraya Begum is, that she was forcibly lifted, put into a taxi and taken away to Kahna. This contention of hero's cannot be easily believed, for the Mohallah known as Paniwala Talab in Lahore is a thickly populated place. The taxi, in which she was carried, must have passed through several inhabited localities of Lahore. There is no allegation, that she was gaged. Therefore, if she had been lifted away by force, from Paniwala Talab, she could have raised alarm and could have frustrated the evil designs of the respondent. The fact, that no such thing happened leads me to the conclusion, that her story, that she was forcibly taken away from Lahore, is not correct. I am inclined to believe the testimony of her parents, that she was living with them and she was given in1 marriage to the respondent on 28th February 1970. I am also not inclined to believe, that she was forced to thumb-mark the nikahnama. There is no allegation, whatsoever, that while in the house of the respondent, she was kept confined in a room or was beaten.
10.Relying on the case of Amir Bakhsh v. Mehar Ali and others decided by Mr. Justice Waheed- ud-Din Ahmad, now the Judge of the Supreme Court, learned counsel for the petitioner contended, that it was evident from the statement of Mst. Surraya Begum, that she was being detained by the respondents illegally and against her consent. In the case relied upon, my Lord Mr. Justice Waheed-ud-Din was pleased to observe:-- "Under section 491 of the Criminal Procedure Code, this-Court is only concerned with the question whether the detenu produced before it is living of her own free will the party against whom the allegation of illegal detention is made."
I respectfully agree with the aforesaid view. However, whether a person is being illegally detained against his will depends on the facts of each case. So far as the question of illegal detention is concerned, I have already observed, that Mst. Surraya Begum is the legally wedded wife of the respondent and therefore, the custody of the respondent of his wife could not be termed illegal.
The next question is, whether Mst. Surraya Begum, is being detained without her consent. With respect to this aspect of the matter, I would only say, that only five days prior to the filing of the petition, she was married to the respondent and with the express consent of her father. The very fact, that when the bailiff went to the house of the respondent to recover the detenu, he did not find her under restraint or locked in a room, would show, that the respondent was not detaining Mst.
Surraya Begum against her will. Above everything else, I doubt the bona fides of the petitioner. It is needless to repeat, that being brother-in-law of the detenu, he cannot be held to be more interested in her welfare than her parents. There is no allegation of maltreatment against the respondent and as such, I hold, that the respondent is entitled to the custody of Mst. Surraya Begum. This precisely was the view taken by their Lordships of the Supreme Court in Muhammad Siddique v. Fateh Muhammad and another. In this case, the petitioner claimed, that the alleged detenu Mst. Zubeda Begum was his legally wedded wife. The respondent claimed, that she was his wife. In support of his contention, he produced nikahnama bearing the seal of the Registrar of marriages. The father of the detenu appeared in Court and supported the case of the respondent.
Considering these aspects of the case, the learned Judges of the Supreme Court observed, that as there was no allegation of maltreatment against the respondent, the view taken by the High Court, that the respondent being the husband of the detenu, was entitled to her custody, was correct.
With these observations, petition for special leave to appeal preferred by Muhammad Siddique was dismissed.
11.For the reasons stated above, I find no force in the petition and the same is hereby dismissed.
Mst. Surraya Begum, who has been produced in Court, has been directed to be made over to her husband Muhammad Ghafoor. The amount of Rs, 50 already deposited by the petitioner shall be paid to the respondent as costs.
12. The moment, the order was announced and the detenu could be made over to her husband, she refused to accompany him. At the same time, the petitioner moved an application under section 561-A of the Code of Criminal Procedure, requesting that in order to enable him to move the Suprem Court, the detenu may be directed to remain in Dar-ul-Aaman for at least fifteen days.
In view of the attitude of the lady and the petition filed, I direct, that the lady shall be kept in Da ul- Aaman till 23rd instant and shall be prosecuted in this Court on 24th March 1970. The expenses of her stay in Dar-ul-Aaman, shall be borne by the petitioner and shall be deposited by him tomorrow. The Bailiff, who is present, is directed to take her and lodge in Dar-ul-Aaman.
13. The copy of the order shall be given dasti to the petitioner on payment. 2 3