MUHAMMAD AFZAL ZULLAH, J.-Writ Petition No. 669 of 1971 and the reference made by me in Criminal Miscellaneous No. 242/11 of 1971 (numbered as Criminal Miscellaneous No. 347/11 of 1971) arise out of the same subject-matter; there--fore, they are being disposed of together by this judgment.
2. One Naseer Ahmad (hereinafter described as the paramour) moved a petition in this Court under section 491, Cr. P. C., on 14-4-1971 with the prayer that Mst. Gullan (hereinafter described as the detenu) be recovered from the custody of Fazil, Gahra, Yara and Sardara respondents therein.
The detenu was described as a minor and a relation of the paramour. The facts; that she was married to a person named Shahadat and that Fazil afore--mentioned is the real maternal uncle of the detenu, and further that Fazil is the father of the husband of the detenu (which have now almost been admitted), were not disclosed in the petition. The paramour, in the petition, tried to make out a simple case that the detenu being his relative was forcibly abducted by the afore-- mentioned four persons. Another impression was created in the petition that the respondents therein used to traffic in women. A further allegation was also made that the detenu might be murdered and that she might be forced to illicit intercourse. My learned brother Muhammad Munir Farooqi, J., had some doubts about the bona fides of the petitioner (paramour) which was expressed in the order, dated 14-4-1971, in the following words:- "The petitioner seems to have lodged no report with the police about it and also admitted that her father and mother are alive but they are not prepared to move in the matter, I am, therefore, not satisfied about his bona fides in making this petition. Let him deposit a sum of Rs. 300.00 as costs in advance before a bailiff can be deputed to recover the girl."
As the deposit was made, therefore his Lordship passed an order on 15-4-1971 directing that a bailiff of this Court be deputed to recover the alleged detenu.
3. The matter came up before me on 19-4-1971. The parties were absent. Only Mr. Aman Ullah Butt, the bailiff of this Court, was present. I read the report submitted by the bailiff wherein it was mentioned that when the bailiff accompanied by the police party reached village Ara Tola and entered the premises of the respondents "they fell upon the petitioner". About 100 persons collected there. The bailiff and the police party were forced to leave the premises. The bailiff and his party were not allowed to sit in the jeep. He then asked those people to come to the dera of the Lambardar. On the way to that dera, fire was opened on this party as a result of which one constable, Muhammad Hussain, was hit and he fell down. "The Sub---Inspector ran away from the spot", and in spite of the bailiff's repeated requests did not fire in self-defence. The bailiff also could not resist and ran away. The petitioner party persuaded the bailiff and party and brought them back. The bailiff on coming back to the spot saw that the respondents were dragging away the A. S.
1. And one Gulla an uncle of the petitioner towards their dera. He asked the S. I. And the Constable to fire to save the A. S. I. And Gulla but they did not care. The bailiff then accompanied by the remaining police force came back on a private lorry which was standing there. Subsequently, according to the bailiff he learnt in the Police Lines, Sahiwal, that the respondents had murdered the A. S. I. And Gulla and thus a case was registered under section 302, P. P. C., against them. In these circumstances, the bailiff could not execute the order issued by this Court. He attached with his report the list of the names of 18 persons, which he learnt subsequently and who, according to him, defied the orders of this Court. (Paraphrasing is mine), In the afore--mentioned list, the names of all the respondents in the original habeas corpus petition and three sons of Fazil including Shahadat, the husband of the detenu are mentioned at serial Nos. 1 to 7. The report and the list have now been made a part of this file. Although the bailiff had not been able to recover the detenu, yet he informed the Court that he had received a telephonic message from the D. S. P., Sahiwal, that the detenu having been recovered was with the police. On this, I directed that "as and when the detenu is free from police investigation, the officer-in--charge of the investigation shall produce her in this Court for further orders."
4. On 20-4-1971, the paramour appeared in Court. Ghulam Ahmad, S. H. O., Harrappa Police Station produced the detenu and stated that she had been recovered from the kotha of Yara son of Ahmad and that her statement under section 161, Cr. P. C., had already been recorded during the investigation of the murder case. The police did not need her presence any more. He also stated that the police had a neutral attitude in so far as the custody of the detenu was concerned. As murders bad already been committed in connection with the alleged detention and recovery of the detenu, I thought it fit to examine the question as to where should the detenu reside or with whom she should be sent from the Court. On my questions, she explained that her father was alive and that she was married to the paramour. This marriage, she admitted, was without any documentary proof. She objected to her being sent to the father because, as she put it, she did not know "the affiliations of her father." She, however, volunteered that she preferred to go with Naseer petitioner (paramour). On this, I examined him. He admitted that he had not mentioned in the petition and his affidavit that the detenu was his wife. He further stated that she is the daughter of the sister of his father. It may be noticed here that in the order dated 14-4-1971 (motion hearing), my learned brother Muhammad Munir Farooqi, J., had noticed that Naseer had described the detenu as her cousin and not as his wife. He asserted before me that the detenu was his wife and explained that he had deliberately omit--ted to mention this fact in the petition and the affidavit because he was "under the apprehension that it will not be accepted". With regard to the absence of any documentary proof, he further explained that the father of the detenu having promised to give her hand to him refused to do so and then he married her with the consent of her mother Mst.
Nooran. After this, I examined Mr. Aman Ullah Butt, the bailiff of this Court.He did not want to add anything to the report already submitted by him. On my question as to whether the petitioner, while in his company, at any stage asserted that the detenu was his wife, he answered in the negative.
On the same day, I passed the following order:-- "The order passed by my learned brother M. M. Farooqi, J., on 14th April and the statements recorded today by me read as part of this order.
After carefully going through the statements made by the detenu, the petitioner and the bailiff and after having perused the order of M. M. Farooqi, J., dated 14th April, the petition and the affidavit attached therewith, it is almost impossible at this stage, with this material, to give a finding that the detenu is the wife of the petitioner. The indications, in so far as the material before this Court is concerned, are that the petitioner moved the petition only on the basis that she is his relation in that she is the daughter of his paternal aunt. It is also important to note that in the petition the petitioner described the detenu as minor. This statement may have been made in the petition with a motive. Be that as it may the fact remains that from the material on this file no sufficient justification is made out for handing over the custody of the detenu to the petitioner. As there is some doubt about their marriage, there--fore, if she is handed over to the petitioner this, in my view, is likely to encourage immorality and may lead to some more serious offences. It is, therefore, necessary and proper that till the time that the petitioner is able to establish, through proper course according to law, his marriage with the detenu, she should be directed to be banded over to her father. This order shall, of course, be subject to the decree of the civil Court as and when the petitioner is able to obtain one in respect of the alleged marriage. The Sub-Inspector is directed to hand over the detenu to her father against proper receipt. (He has taken along the detenu).
(2) It needs to be mentioned that while passing the above order I have kept in view the rulings of the Supreme Court and of this Court in the cases of Muhammad Siddique v. Fateh Muhammad and another 1908 SCMR 1093 and Fateh Sher v. Sarang 1970 Law Notes 261, to the effect that under sec--tion 491, Cr. P. C. It is not always essential to act on the desire of the detenu.
(3) My order passed yesterday that the report of the bailiff and the list of names attached thereto be kept in a sealed cover with the Deputy Registrar shall be complied forthwith."
5. The office, on the receipt of a telephonic message front the P. D. S. P., Sahiwal, placed this matter again before me on 26-4-1971. The message was that the father of the detenu was absconding in the murder case; therefore, she could not be handed over to him. On that day Mian Abdus Sattar Najam, Advocate, appeared on behalf of Yara the father of the detenu, who along with his wife was also present in Court. The paramour and the State were also represented. On my questions, the father stated that he was willing to receive Mst. Gullan and that he would protect her. He categorically stated that she was never married to Naseer and that, in fact, she was married to Shahadat son of Fazil about three years before the incident and that the said marriage with Shahadat was entered in the records of the Nikah--Khwan. Mst. Nooran, the mother of the detenu, when examined specifically contradicted the earlier statement of Naseer, the paramour, that he had married the detenu with her consent. She also stated that her daughter was lawfully married to Shahadat and there was no question of a second marriage. On this, I passed the following order:- "A telephonic message purporting to be from P. D. S. P., Sahiwal, was received in the office to the effect that the father of Mst. Gullan, the detenu, was absconding; therefore she could not be handed over to him. Yara the father of the detenu, who is identified by Mr. Abdus Sattar Najam, has appeared in Curt and has stated that he is willing to receive back his daughter and that he will protect her. It appears that another person with the name of Yara is an accused in the murder case nom, being investigated by the police. The P. D. S. P. Was probably under some misapprehension. I, therefore, direct that the order passed by me on 20th April 1971 be implemented."
6. As the case is not very old, I have a recollection that on this date i.e., 26-4-1971, on the appearance of the father and the mother before me, I did entertain a doubt that the police did not want the detenu to go with the father because that might spoil their case against the accused in the murder case in which two deceased belonged to the police force. I also then thought of the possibility (only) that the position taken by the paramour and the detenu, after the production of the detenu by the police in this Court, that they were married, was an afterthought and might be at the instance of the police. But I did not give any concrete expression to these thoughts and gave the benefit of doubt of some misapprehension on the part of the P. D. S. P. And thus directed the police to implement my order, dated 20-4-1971, because obviously no question arose for my reviewing the same. I may also mention here that on 26-4-1971, on my direction, the detenu had gone with the police to be handed over to her father and she had not, by that time, raised any protest against my direction; even though in her statement made earlier she had desired to go with the paramour. These circumstances, I have noticed in view of my present confirmed opinion that the complications that have arisen in this case subsequent to my order, dated 26-4-1971, can be traced back to the unhelpful rather adverse attitude of the police in this habeas corpus matter.
7. Prima facie the petition stood disposed of by the High Court by my order, dated 20-4-1971, and in any case by the order dated 26-4-1971. However, the office of the High Court received a letter, dated 6-5-1971, from the Additional Deputy Commis--sioner (G), Magistrate Section 30, Sahiwal seeking guidance in connection with the custody of the detenu. The circumstances leading up to this reference are another interesting side episode in this case. On 26-4-1971, I directed that my order dated 20-4-1971 be implemented, meaning thereby that the detenu be handed over to her father. It appears from the Annexures to the letter of the A. D. C. (G) and the averments made in this writ: petition, that the police instead of taking the detenu forthwith to the house of Yara delayed the matter till 1-5-1971, when the same Sub-Inspector, i.e., Ghulam Ahmad, who had appeared before me, purported to deliver the custody of the detenu to the father near the District Courts premises at Sahiwal. She refused to go with her father whereupon there was a scuffle between both of them.
The police of `A'-Division, Sahiwal was active enough to intervene and arrest both of them under section 107/151, Cr. P. C. It is also interesting to note that a Press photographer was also ready at hand to take a photo-snap of the detenu and also the picture of the aforementioned scuffle. They were published in a newspaper subsequently which is an Annexure to this petition. After arrest, the detenu was lodged in the judicial lock-up and she refused to be released on bail except on a surety bond submitted by Naseer, her paramour. This conduct on her part, at this stage, is diametrically opposed to her conduct in this Court on 20-4-1971, when I directed that she be handed over to her father. She had accompanied the Sub-Inspector from this Court without raising any protest. A difficulty having arisen for the local Magistracy, the detenu, was examined in the judicial lock-up by a learned Magistrate, according to whose report, "She stated that she had not yet been handed over to her father. The thanedar had tried to do that but she had refused. She was not prepared to go to her father. It was only Nasir whom she recognized for her company". As has been put in the letter of the A. D. C. (G), "at this stage the contending parties expended hectic efforts to secure the custody of Mst. Gullan. Yara, the father of Mst. Gullan, desired to get her back to the perental fold, while her paramour Naseer wanted to secure her". It is pertinent to note that the father of the detenu, through his counsel, urged before the learned Magistrate dealing with the subject (as noted in his report, Hated 3-5-1971) that "Mst. Gullan had not yet been given to her father. The local police had some malicious modus operandi and wanted that "Mst. Gullan be not taken away by Yara------.It was the contention of Mr. Lodhi that the police wanted Mst. Gullan under its thumb for some ulterior motive in connection with the said murder case . . . . . . . Today Khawaja Zia Ullah Naik, Mr. Habib Ahmad Khan Lodhi and Sub-Inspector Ghulam Ahmad are present before me. As indicated Sub-Inspector Ghulam Ahmad and Khawaja Zia-Ullah Naik claim to have delivered Mst. Gullan to her father, in compliance with the order of the High Court but the same is challenged by Mr. Habib Lodhi. Mr. Lodhi says that whatever receipt was said to have been obtained by the Sub-Inspector, was simply fictitious and Mst. Gullan had not been properly handed over to her father Yara and consequently no compliance of the order of the High Court bad yet been effected." As noted earlier, the position taken by Yara's counsel with regard to the complaint against the police as to the non-delivery of the custody, appears to have been unwittingly supported by the detenu when she was later on examined by the Magistrate. The detenu was still in the judicial lock-up when the A. D. C. (G), in the aforesaid letter, requested this Court "that a rule of guidance in this case may kindly be issued".
8. The letter of the A. D. C. (G) and a fresh petition under section 491, Cr. P. C. (numbered as Crl. Misc.
No. 336/H of 1971), filed by Ramzan, a real brother of the paramour. Came up r before me on 25-5- 1971. In my order passed on that day, I noted that "I finally disposed of Criminal Miscellaneous No. 242/H of 1971, by my order dated 26th April 1971". The letter of the A. D. C. (G) was also noticed. Mr. Muhammad Abdul Wahid, the learned counsel for Ramzan, tried to argue the petition on the basis of provisions of Article 98 of the constitution and "also sought relief as a constitutional remedy." He then amended the petition so as to make it one under Article 98 of the Constitution and I directed that the same being a D. B. Matter be placed before another Bench. I also directed that the question raised by the A. D. C. (G) in his letter be also placed before the larger Bench which was to hear the writ petition. Yara, the father of the detenu, was present on this date with his counsel Mian Abdus Sattar Najam. He wanted to be impleaded as a respondent. Mr. Wahid had no objection to impleading him as a respondent and I noted it so in my order.
9. The matter having been placed before two other Division Benches, ultimately the learned Chief Justice constituted this special Bench to dispose of the same.
10. We heard the learned counsel for the parties and have also recorded a detailed statement of the detenu. Briefly stated, according to her statement, on the day that the bailiff went to recover her, she was confined by her uncle Yara (a respondent in the first petition) in his haveli. Before she was confined by Yara, she was in the house of Fazil her father-in-law, and had remained there for about 26 days. In the later part of the statement, she explained that she was detained in the haveli of Yara on the very day that the bailiff visited their village "earlier than his arrival, at about dupehr time". She admitted that she was married to Shahadat, the son of aforesaid Fazil but it was under coercion. She also admitted that she lived in the house of Shahadat, her husband, for 11 years. She then left that place of her own accord "about eight months ago". She went to the house of Naseer because she did not like her husband and also because her parents had, prior to her marriage with Shahadat, promised her hand to Naseer. With regard to her return to her husband's house, she explained, "After I left the house of my husband, I was caught by Fazal, my father-in-law, Shadadat, my husband and some others at Railway Station Panjwana, when I and Naseer wanted to board a train from that station". She also claimed that she was married to Naseer about four years ago "according to Shariat", but she admitted that there was no document in that behalf. This assertion of the detenu is directly contradicted by Ramzan, the writ petitioner who is a real brother of Naseer, in the petition as well as in the affidavit. According to him, although the detenu was betrothed to Naseer but the marriage "could not be solemnized due to various reasons". She also admitted that she had not filed any suit for dissolution of marriage against Shahadat during the time that she remained with Naseer. From her statement, it further appeared that Fazil, her father-in-law, and Shahadat, her husband, are in jail in connection with the murder case. I have already noted that the brothers of Fazil and his sons are also involved in the same case. When asked if she was set at liberty, whether she would like to go with her father, she answered in the negative and initially wanted to go with one Kulla, who was present in the Court. He is a brother of one Gulla who was one of the three persons who lost their lives. Kulla obviously is a partisan of Naseer, her paramour.
She, however, admitted that Ramzan, the writ petitioner in this case, "is the elder brother of Naseer, to whom I went leaving the house of Shahadat" and expressed her final desire that "she would like to go to Naseer". She also admitted that she knew that Naseer is the complainant in the murder case in which Gulla was killed.
11. During the arguments, learned counsel for the petitioner mainly relied on two concepts of law: one from the Muslim Jurisprudence, and the other from the Western Jurisprudence. The first being, that a Muslim wife has a right to seek liberty from her husband who is either cruel to her or is detested by her. The second being, that a sui juris person in the Western society has an unlimited immutable right to liberty, and whenever such a question of liberty of a detenu, who is confined against his/her desire comes before a Court of law, it has no jurisdiction to refuse to set her at liberty. Reliance was placed on: (1) Hedaya, trans--lation by Charles Hamilton; (2) Muslim Law, by Verma; (3) 'Muhammadan Law by Tayabji; (4) Baillie's Digest of Muhammadan Law; and (5) Sura- e-Nisa from the Holy Qur'an. The learned Additional Advocate-General supported the learned counsel for the petitioner and further elaborated the points noted above, by making reference to Muslim Law by K. P. Suksena; Halsbury's Laws of England; R. v. Jackson (1891 All E R 61); American Jurisprudence; Amir Bakhsh v. Meharali and others (PLD 1962 Kar. 725) Mishqat Sharif, Translation by James Rabson, Pak Edition; Sura-e-Nisa from the Holy Quran, particularly as translated by Maulvi Muhammad Ali and Allama Yousaf Ali; and Muhammadan Law by Amir Ali, the latest Edition, revised by Raja Said Akbar.
12. Learned counsel for Yara, the father of the detenu has, on the other hand, contended that a Muslim wife has the liberty of movement subject to the provisions of the law relating to her obligations towards her husband. He has relied on some judgments of this Court and the Supreme Court. They are: Nura v. The State (PLD 1960 Lah. 53); Mst. Khurshid Jan v. Fazal Dad (PLD 1964 Lah.
558); The State v. Ashfaq Ahmad Sheikh (PLD 1967 Lah. 1231); Muhammad Saddique v. Fateh Muhammad and another (1968 P Cr. L J 1758) and Fateh Sher v. Sarang (PLD 1971 Lah. 128.).
13. Before discussing the questions of law involved in this case, it is necessary to state as to what are the facts which appear to have been established by now. They are:
(a) it is not disputed before us that the detenu is sui juris.
(b) The detenu was married to Shahadat son of Fazil. The date of nikah, according to the copy of the Nikahnama produced on the file, is 14-8-1967. She lived in the house of Shahadat for about two years as his wife. This marriage, in law, subsists till today and has not been dissolved by any legal process.
(c) The detenu eloped with Naseer, her paramour. There is no legal marriage between them. The detenu was retrieved by her husband, father-in-law and others, when she was found in the company of her paramour, and in the act of running away. She was brought to the house of her husband. She stayed there for some days, when her paramour made an application in this Court under section 491, Cr. P. C., for her recovery from the house of her husband without, of course, impleading him as a respondent and without disclosing that she was the wife of Shahadat and that he had no other connection with her except that he was her relation.
(d) Till the day of the arrival of the bailiff in the village, the detenu was living in the house of her husband and there is absolutely nothing on this file not even in her statement, to prove that she was being subjected to cruelty by her husband and his brothers and father living in the same house, or that she was forcibly confined within a circumscribed space. She has, however, expressed her dislike for her husband.
(e) On the day of the arrival of the bailiff in the village, the detenu was taken by Yara (her maternal uncle) to his own haveli and shortly before the occurrence she was forcibly confined in that haveli by him; and after the occurrence she was released from that confinement by the police officer and was produced in this Court by him.
(f) This Court (in the application filed by the paramour) ordered that the detenu should be handed over to her father. The order was passed on 20th April 1971, and the police failed to implement it till I-5-1971, on which date an attempt was made to hand her over to the father in the circumstances which have, at least, the appearance of a sham transaction. A strong possibility cannot be excluded that the police was not favour-- ably inclined to the handing over of the detenu to her father who, according to the police, is a partisan of the accused persons in the murder case. On the contrary, the police wanted the detenu to go to the paramour because he is an eye-witness and a complainant in that case. The order passed by me on 20-4-1971 reiterated on 26-4-1971 has not been faithfully implemented till today.
(g) The detenu, without having protested against or resisted the aforesaid orders subsequently flatly refused to go with her father and is adamant that, if set at liberty, she would live with her paramour, i.e., Nascer. From the consideration of the entire facts of the case, I am satisfied that as soon as the detenu a married woman, is allowed to act on her own desire and is set at liberty, she would go to her paramour and will live in sin with him; and lastly
(h) The husband and the father-in-law of the detenu are in jail and it is not possible at present to hand over the custody of the detenu directly to the husband.
14. The writ petition was filed when the detenu was in judicial lock-up in pursuance of the orders passed by the Magis--trate and had refused to be released on bail except on a surety bond filed by Naseer, her paramour. This Court, after admitting the writ petition, transferred her to Dar-ul- Aman, Lahore and she is at present lodged there under the directions of this Court. Therefore, so far as the technical prayer made in the writ petition is concerned, it has fructified in that the detenu has been released from the judicial lock-up and is now in the custody of this Court. In spite of this, learned counsel for Ramzan petitioner has argued that the detenu should be set at liberty and has, for all practical purposes, tried to argue that it is neither legal nor proper to hand her over to her father. Therefore, the only purpose for which this writ petition is being pressed is that the orders passed by me on 20-4-1971 and 26-4-1971 should not be implemented. The A. D. C.(G), in his letter earlier referred to, which is also the subject-- matter of reference to this Bench, seeks clarification of and guidance in respect of the aforesaid orders passed by me. With this background of the proceedings in this Court, the questions which fall for determination are: firstly, whether the orders passed by me should not be implemented because they are not lawful or are, in any way, improper; and secondly that even if those orders are defective, whether this Court (to be precise another Bench of this Court) can modify those orders.
15. The question of legality and/or propriety of the earlier orders passed by this Court under section 491, Cr. P. C., can be looked at from various angles. They are, the precedents and practice of this Court and the Supreme Court so far followed; the Muslim Law of Marriage; concept and law of liberty in Western countries, particularly in England; and the requirements of section 491, Cr. P. C., and/or Article 98 of the Constitution.
16. It is true that in some cases, one or may be more than one Judges of this Court, while disposing of an application under section 491, Cr. P. C., acted on the desire of a female married detenu who, instead of going to her father or husband's house, wanted to go and live with her paramour, of course, with whom she had not been married. This I have stated from my impression though no reported or unreported case has been cited before us. The case of Amir Bakhsh v. Meharali is not one of such cases. The facts therein are clearly distinguishable. The detenu was found to have been married to her paramour-abductor and she had stated that she was living with him out of her free will and con--sent. The father wanted her to be set at liberty. The petition was dismissed and the decision was given in favour of the husband with the remark that she was living out of her free will with the respondent, therefore she could not be handed over to her father. He was advised to have recourse to civil and criminal Courts. Their Lordships of the Supreme Court also, in the case of Mst. Bakhshi v. Bashir Ahmad aid another (PLD 1970 SC 323), held that in such like circumstances a girl having attained the age of 15 running away from her mother's house and having married a man of her choice could not be forced to stay with her parents as against her expressed will to reside with her husband. The detenu in that case had made a categorical statement in Court that "she was keen to go with Bashir Ahmad whom she had married and was unwilling to go back to her mother". Thus in both these cases, the detenus wanted to go and live with their lawful husbands. In the present case, the desire of the detenu is to run away from her lawful husband and to live with her paramour with whom she has no legal and valid marriage ties.
17. On the other hand, in large majority of cases of this type, this Court while dealing with applications under section 491, Cr. P. C., when a married woman wanted to go with her paramour in preference to her husband, did not set her at liberty to pursue the undesirable liaison. Most of the cases are unreported. I have consistently, held this view. None of the cases decided by me, however, has been reported. The reported cases which have come to my notice are: Muhammad Saddique v. Fateh Muhammad Criminal Miscellaneous No. 423 of 1968 was decided by my learned brother Mushtaq Hussain, J., in favour of the respondent-husband and in spite of the expressed desire of the detenu, the respondent's wife, to go with the petitioner therein (her paramour). Her desire was not acted upon. This case went up to the Supreme Court. We sent for the copy of the Petition for Special Leave to Appeal, wherein a point was raised that the High Court had not acted legally in not acting on the desire of the detenu and thus not setting her at liberty to go with the man of her choice. The Supreme Court refused to grant the leave. The case is reported as Muhammad Saddique v. Fateh Muhammad and another. The following observation in the judgment is highly significant:- "As there was no allegation of maltreatment against the said respondent, the High Court took the view that the respondent being the husband of Mst. Zubeda Begum, was entitled to her custody."
The contention raised before their Lordships, that the High Court having directed the production of the detenu in Court had no further jurisdiction to enquire into the question as to whether the respondent was lawfully married to her or not particularly since the detenu herself supported the petitioner therein, was repelled as unacceptable. It was held that "the High Court had the right to dismiss the petition under section 491 after having found that the woman was lawfully married to the respondent." We have seen the original file. The detenu was produced in the High Court where she made statement that before her recovery she was being detained against her wishes and that she wanted to go with the petitioner. Obviously, her desire was not acted upon. She was not permitted to go with the petitioner. Therefore, a prayer was made in the Supreme Court that the respondent be directed to produce the detenu in that Court "so as to set her at liberty." In Fateh Sher v. Sprang decided by my learned brother Muhammad Afzal Cheema, J., the well-known verse from Sura-e---Nisa of the Holy Quran dealing with the rights of husbands with regard to the rebellious conduct of their wives was quoted and relied upon. In yet another case Mohammad Rafiq v. Mohammad Ghafoor (1971 Law Notes 206) my learned brother Mushtaq Hussain Munir, J., refus--ed to act on the desire expressed by the detenu. His Lordship relied upon the judgment of their Lordships of the Supreme Court in the case of Muhammad Siddique. In The State v. Ashfaq Ahmad Sheikh (PLD 1967 Lah. 1231) while dealing with this question in similar circumstances, Nazeer Ahmad Mahmood, J., observed: "To me it has always appeared that in petitions under section 491, Cr. P. C. The Court exercises a discretionary jurisdiction and that an alleged detenu should be set at liberty only after the High Court is satisfied that he or she is illegally or improperly detained. A Muslim husband's custody of his wife normally is not illegal or improper detention. But such, it might become. So a heavy duty is cast on the Court in cases where the husband is described as illegally or improperly detaining his wife, to come to a definite conclusion that the husband is detaining his wife illegally or improperly before the Court can pass an order setting the wife at liberty. I know from experience that the remedy provided under section 491, Cr. P. C., is very often abused. I remember having recently come across a case where a wife and a mother of several children at that, on whose liberty of movement actually no restrictions whatever were placed by the husband, had engineered an application under section 491, Cr. P. C. For the purpose of eloping with her paramour himself a married man, with the blessing of the High Court. I do not think that the discretionary relief that the High Court is supposed to provide Under section 491, Cr. P. C., is meant for promoting the cause of vice."
I entirely agree with the quoted observations on the questions of general law with regard to the relationship between husband and wife as also the interpretation of section 491. But on another question, I more profoundly agree with the observation made by his Lordship with regard to our experience as the Judges of this Court and the way the powers under section 491, Cr. P. C. Are intended to be invoked in some cases. I have come across so many cases of the type of which an instance has been given in the above quotation. To sum up, it can be safely said that the preponderance of the view so far held by the Courts in Pakistan is that in such like cases the High Court is not bound, under the law, to act on the desire of a detenu who, in preference to her husband, wants to go and live with her paramour. The discretion is exercised not to set her at liberty. In such like cases, petitions under section 491 have been dismissed. While disposing of the habeas corpus petition in this case, I did not take any different view by saying that there was some doubt about the alleged marriage of the paramour and the detenu, therefore if she was handed over to the petitioner (paramour) this, in my view, was "likely to encourage immorality and may lead to some more serious offences." At that time I did not know that she was married to Shahadat and that there was no question of her marriage with Naseer, the paramour. The question of the interpretation of section 491, Cr. P. C. Stands finally resolved by the pronouncement of the Supreme Court in the case of Muhammad Siddique that this Court has the jurisdiction to dismiss a petition under section 491, Cr. P. C. After having found that the woman was lawfully married to the person who is accused of having illegally detained her, and in such like circumstances while dismissing the petition the custody, which till then in law can be deemed to have been with the Court on behalf of the husband, can be restored to him. Legally speaking therefore, the orders passed by me are valid and cannot be assailed on the basis of any objection as to the scope of section 491, Cr. P.
C.
18. 1 agree with the proposition put forward by the learned Additional Advocate-General and Mr. Abdul Wahid, that in Islam, generally speaking, a woman bas equal rights, and there is no distinction on the basis of sex so far as the exercise of ordinary rights is concerned. In this behalf, it is declared in the Divine Source of Law, that "Women have rights against men, similar to those that the men have against them, according to the well known rules of equity" I have no doubt about the proposition that in ordinary worldly dealings, a husband cannot be given any preference over the wife. The following verse from Sura-e-Nisa is clear in this behalf:- (And do not covet that by which Allah has made some of you excel others: men shall have the benefit of what they earn and women shall have the benefit of what they earn; and ask Allah of His grace; surely Allah knows all things) (32).
Similar other references can be quoted. Therefore, so far as the question of equality, generally speaking, is concerned there is no doubt about it. But to canvass, that these rights are without any corresponding obligations, is not accepted in Islam. At so many places in the Holy Quran and on innumerable occasions during the life of the holy Prophet, spouses have been reminded of their duties. It is not necessary to go into the details as they are not relevant for the present discussion.
19. The precise argument raised by the learned Additional Advocate-General and the learned counsel for the petitioner is that a Muslim wife has a right to seek liberty from her husband. This question has been the subject of legislation on dissolution of marriage and also has, by now, been commented upon in extenso by the superior Courts in Pakistan. The Full Bench judgment by this Court in Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 Lah. 566) and the Supreme Court ruling in Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) of course deal with this subject and, in particular, have decided once for all the question of right of a wife to obtain release by way of khula'. It cannot now be urged in Pakistan that if the conditions laid down in the last mentioned ruling are satisfied, a Muslim wife cannot seek release from her husband. While explaining these rulings, this Court in Siddiq v. Mst. Sharan (PLD 1968 Lah. 411) cautioned the Qazi/Judge that "if it is established before him that the wife was seeking the divorce to have a sexual enjoyment, the Judge will not dissolve the marriage because it will amount to placing a premium on an immoral life." In other words, it is not her desire to have sexual liaison with another man that would influence the Judge to conclude that (by this reason) she may have developed dislike for her husband or that she would not keep the limits of God. Moreover, amongst others, one very important condition laid down by their Lordships of the Supreme Court is that where the agreement of the husband has not been obtained (when obtained it is technically called mubara't) the wife will have to seek release and separation by approaching the Qazi who, with or without the assistance of Hakams, will adjudicate upon the matter. If the decision goes in favour of the wife, the Qazi (the Courts in Pakistan) will, on behalf of the husband, grant the right of separation by way of khula'. It is undisputable proposition that the wife, in these circumstances, cannot without approaching the Court, just by her own declaration effect the dissolution.
Admittedly, in this case so far Mst. Gullan, the detenu, has not obtained separation through a Court of law on the basis of Khula'. She remains duly wedded wife of Shahadat and is not at liberty to flout the wedlock and do whatever she likes even if it goes against the injunctions of Islam.
20. The question here arises as to how far a Muslim husband has the right to control his wife if she by her conduct, shows that she wants to or has become unfaithful. A learned commentator Tyabji, while dealing with Muslim law of marriage and its legal effects, in the commentary under section 24, sub--heading "Restraint of wife's movements", has observed that the right of restraining the wife's movements is an extension of the marital right in rem of the husband (as it is styled in the common law of England) not to be deprived of his wife's society, and to be able to prevent any person being criminally intimate with her; of the interdict deuxore exhibenda et ducenda of Roman Law. This right of the Muslim husband to restrain the wife's movements does not conflict with the criminal law of British India relating to false imprisonment", and proceeded on to comment that "for repeated acts of disobedience the husband is allowed (after warning the wife) moderately to chastise her". He has, however, also expressed an opinion that the husband has "no magisterial powers of inflicting imprisonment, should she disobey him, or disregard his lawful directions." The author has not cited any reference in respect of the absence of magisterial powers. On the contrary, in the foot-note he subjects this observation to a caution that the husband has the right to chastise his wife. What he appears to have meant is that the husband has, technically speaking, no magisterial powers. During the course of arguments, it was pointed out by the learned counsel for the petitioner that the learned author, while considering the right of the husband to restrain his wife's movements on account of her lewd conduct did not cite any source of Muslim law in support thereof. I have, however, further studied this subject. There is ample support of the opinion expressed by the author in the Holy Quran and also in various treatises on the subject of Muslim law.
To begin with, it is necessary to make reference to Sura-e---Nisa, verse 24, wherein the purpose of marriage is specified as desiring therein the purpose of God, i.e. Chastity and not lust. The expression used for marriage in this connection is "". While dealing with the subject, A. Yousaf Ali, in his translation and commentary, on the Holy Qur'an in para. 538, observed thus:- "After defining the prohibited degrees, the verse proceeds to say that wQmen other than those specified may be sought in marriage, but even so, not from motives of lust, but in order to promote chastity between the sexes. Marriage in the original Arabic is here described by a word which suggests a fortress (hisn); marriage is, therefore, the fortress of chastity."
It is the extension of this very principle that in the oft-quoted verse with regard to right of husbands to control the conduct of their wives, namely, Sura-e-Nisa, verse 34, God ordained the wives, to "guard in (the husband's) absence what Allah would have them guard." While commenting on the expression------..--- in para. 546 of his commentary, A. Yousaf Ali observed that the sentence can be rendered: "and protect (the husband's interests) in the absence, as Allah has protected them . . . . . . The good wife is obedient and harmonious in her husband's presence and in his absence guards his reputation and property and her own virtue, as ordained by God". It was ordained in verse 15 of Sura-e-Nisa that those women who are guilty of an indecency, after the proof thereof by at least four witnesses, may be confined in the house until death takes them away or Allah opens some way for them. In another English trans--lation and commentary on the Holy Qur'an, Maulvi Muhammad Ali made the following comment on this verse (No. 15):- "Though the word is no doubt used sometimes as meaning fornication, the context shows that here it is used to signify any immoral conduct short of fornication, for the punishment of fornication is given elsewhere, and the words of the verse that follows, referring as they do to the same immoral act as is mentioned here, with the indefinite nature of punishment, which in the case of an act short of fornication could not be made definite and ought to be varied with the nature of the crime, strengthens this position. The punishment in the case of women is the curtailing of their liberty so that they should not be free to go out of their houses. If they then mend their ways, a way is opened for them by Allah, and they regain their liberty; if they do not, the curtailment should be extended till they die."
In para. 556, the Translator commented on and explained the expression "------" thus:- "The exception is in reference to taking part to the dowry, the meaning being that part of the dowry can only be taken back if the woman is guilty of indecency. The best received opinion is that "----- -..' or the manifest indecency spoken of here, is hatred and desertion of the husband, refractoriness, no doing harm to the husband and his family (Rz)."
Thus the right of confining a wife so as to prevent her from indecency and lewdness has been conceded in the Holy Quran from the very beginning, In this context, reference may also be made to verse 19 in Sura-e-Nisa which deals with the rights and liabilities of a widow after the death of her husband qua her husband's brothers and relations. Shah Abdul Qadir has translated the verse as follows:- While commenting on this translation in side-note No. 1 the, commentator observed as follows:- The expression ---------."has been translated by Pickthall as to "put constraint upon". A. Yousaf Ali has translated it as "nor should ye treat them with harshness . . . . . Except where they have been guilty of open lewdness." In spite of the difference in translations, the-expression used by Shah Abdul Qadir manely, `------." in translation, is in consonance with the other verses which have been noted and discussed above; meaning thereby that if a widow is leading the life of chastity, her brothers-in-law and other relations are bound by all the obligations towards her and have no rights upon her; but if she becomes guilty of lewd and indecent conduct, then they can `restrain' her; can put her under some `constraint'; can be `harsh' to her; and if she persists in this conduct, can `confine' her.
Thus there is ample authority in the Holy Quran in support of the proposition that if a wife is guilty of indecent or lewd conduct, the husband has a right to restrain her movements. As to what in particular circumstances, keeping in view the temperament of the wife and her entire conduct, is the proper mode of confining her movement, will differ from case to case and will depend upon the circumstances. This interpretation of the Holy Quran on the subject in question has, generally, been accepted by the commentators. The original sources have not been produced before us. I have, however, made a careful study of the subject as dealt in Hedaya which, in effect, is a digest of various opinions on the basis of consensus. The translation by Charles Hamilton, who had an extreme bias against Islam, is not at variance with any other accepted standard work, for example, Baillie's Digest of Muhammadan Law which is mostly based on Fatawa Alamgiri; therefore, I have no hesitation in quoting the former. Under Bor IV, Chapter XV, section I, heading "of the Nifka of the Wife", the concept of "matrimonial custody and restraint" is introduced thus:- "If a woman refuses to surrender herself to her husband, on account of her dower, . . . . . Her maintenance does not crop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is only in pursuance of her right, and consequently the objection to the matrimonial custody originates with the husband.
But not if she be refractory.-If a wife be disobedient or refractory, and go abroad without her husband's consent, she is not entitled to any support from him, until she returns and makes submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before."
Section II in the same Chapter deals with the rights of a wife with regard to separate accommodation and also her liability with regard to the control of husband on her association with relations, other persons and visitors. In Baillie's Digest of Muhammadan Law, Old Edition, in Book I, Chapter 1, sub-heading "Legal effects of marriage", it is clearly stated that the marriage "legalizes the mutual enjoyment of the parties in a manner permitted by law or according to nature. It subjects the wife to the power of restraint; that is, it places her in such a condition that she may be prevented from going out and showing herself in public . . . . . . It obliges the husband to be just between his wives, and to have a due regard to their respective rights; while it imposes on them the duty of obedience when called to his bed, and confers on him the power of correction when they are disobedient or rebellious." The same subject is elaborated in Book VI, Chapter I under the heading "Matrimonial Restraint." Some discussion on the subject, though in different context, is found in Mst. Fatima Bibi and others v. Nur Muhammad (I L R 1 Lah. 597). Reference in this judgment is made to some decided cases and, amongst others, Syed A meet Ali's Muhammadan Law. In the latest revised edition by Raja Said Akbar the subject is discussed in Chapter XI, Section I under the heading "Rights and duties of the married parties'", and Section II under the heading "Conjugal domicile and restitution of conjugal rights". Tyabji, while making the commentary on the subject of restraint of wife's movements as noted earlier, has in a foot-note, referred to Baillie's Digest, Part I, pages 449-50 and Part II, pages 83-85, in this behalf. That edition of Baillie's Digest has not been placed before us. However, I am satisfied that the commentary by the learned author is not at all divergent from the Muslim law as it is contained in the Holy Quran and has been explained by some commentators.
21. The sum total of the above discussion is that if a wife shows disloyalty, unfaithfulness and bad conduct 11, including indecency and lewdness and tries to go out of the house of her husband to pursue such a course particularly qua known paramour, the Islamic law confers a right on the husband to restrain her from doing so and this includes a further right to confine her and to punish her. Applying these principles to this case and in the light of the above discussion. I am of the firm opinion that in this case when Naseer (the paramour), in the background of the detenu's elopement with him and her having been recovered and lodged in the house of her husband, obtained the order under section 491, Cr. P. C., from this Court for her recovery from her husband's house; she was neither illegally nor improperly being detained there even if her movements were restrained by the hus--band. With regard to the temporary period of her confinement by Yara in his own haveli shortly before the arrival of the bailiff, the entire circumstances leading to the same are not before us. It is not known as to whether, how and when the husband's family gained the knowledge of the bailiff's impeding arrival, the conduct of the detenu in that behalf (I presume that she may have known that her paramour had gone to obtain some order for her recovery) and whether it justified more stringent measures by the family of her husband of taking her from one house to another and confining her there so as to avoid certain consequences. Beyond that, it is not proper to make any comment in these proceedings because that may prejudice the case of one or the other party in the murder case. Be that as it may, the petition under section 991 when filed in this Court, was in respect of the so-called illegal confinement of the detenu in the haveli of Yara because that incident took place after the Court bad passed the orders. The main question, however, in this matter throughout was and is whether the stay of the detent: in the house of her husband, whether in confinement or not, was in any way in contravention of any law or was improper; to which my answer is in the negative.
22. During the arguments, a question arose as to the applica--tion of provisions of the Pakistan Penal Code in such like circum--stances. Whether or not an offence under section 342, P. P. C. I is committed, in the circumstances as in the present case will' depend upon the intention and knowledge of the husband and his, partisans while confining the detenu. It is no doubt true that' the knowledge and intention are not the pre-requisites of the offence as defined in sections 339 and 340, P. P. C. But the provisions contained in section 79, P. P. C. Cannot be ignored. Every definition of an offence in the Pakistan Penal Code can be subjected to the provisions contained in Chapter IV under the heading "General Exceptions". Section 79, P. P. C. Reads:- "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it."
The law, here, will include not, only the law as contained in the Pakistan Penal Code but also other laws. It is not disputed that in matrimonial rights and liabilities, the law applicable to Muslims in Pakistan is Muslim Law. When a husband restrains his wife in the circumstances as in the present case, he is under the law (Muslim Law) justified to do so. That being so, he would not be committing an offence under section 342, P. P. C. In any case, his conduct can also fall under the second part of section 79, P. P. C. Learned counsel for the respondent cited Nura v. The State to contend that where the intention of an accused person in forcibly taking away a woman is to take her to the house of her husband and compel her to live there against her will, it does not constitute an offence under section 365, P. P. C. It is relevant only indirectly because it is not the question here as to whether the husband and his relations committed any offence by taking the detenu back from the paramour, but as to whether she was, after that incident, being illegally confined by her husband.
In the light of the above discussion, I hold that the detenu was neither illegally nor improperly being detained in the house of her husband or his close relations, when the paramour obtained the preliminary order from this Court. Therefore, it cannot be held that any of the provisions contained in section 491, Cr. P. C., applied in this case. That being so, the dismissal of the petition in the final hearing by me on 20-4-1971 cannot be treated as illegal or, in any way, exceptionable.
23. The concept of law of marriage in Christian Society is not the same as in Muslim Society.
Therefore, the general considerations which weighed with the Judges in West European J and American countries in this behalf are not very relevant for consideration in this case. However, the case cited by the learned Additional Advocate-General i.e. R. v. Jackson is an instructive commentary on how this branch of law, with particular reference to the right of husband to restrain his wife, developed in England and thereafter in America. Before this judgment, the law in England was: "A husband has, in consequence of his marriage, a right to the custody of his wife; and whoever detains her from him violates that right and he has a right to seize her wherever he finds her. (Lord Mansfield).
The husband may confine his wife in his house and even use such violence as may reasonably be necessary to restrain her (based on R. v. Mead; Atwood v. Atwood; Seymor's case; and Lady Lee's case).
A husband may confine his wife in his house; that is not the same thing as imprisoning her, and there is no need for him to justify his using restraint by showing that the wife would make a bad use of her liberty. (R. v. Lister).
If the wife will not promise to abstain from misconduct, or if the husband thinks she is not to be trusted, he my confine her.
The husband has at common law a right to do, namely, have possession of his wife and keep her to prevent her escaping from him. (Coleridge, J., in Re: Cochrane), for the happiness and honour of both parties the law places the wife under the guardianship of the husband, and entitles him, for the sake of both, to protect her from the danger of unrestrained intercourse with the world by enforcing cohabitation and a common residence." (Bacon's Abridgement (8 Dowl. 636).
In the cited case, however, the learned Lords purported to change the law with regard to the general right of the husband to keep his wife restrained in his house without any adverse conduct on her part, and held that "a husband has no right to take the person of his wife by force and keep her in confinement in order to prevent her from absenting herself from him for any purpose however innocent of moral offences until she renders to him conjugal rights." It is obvious, from the above summarisation itself in the report, that in case the purpose is not "innocent of moral offences," the ruling shall not apply. In the report however, a query has been made in the form: "whether a husband has the right to restrain his wife if he found her about immediately to do something which would be to his dishonour, e.g., if she were about to elope with another or going to meet a paramour." This query appears, in my view, to have been answered by the majority of the three learned Judges, in the affirmative. Lord Halsbury, L. C., in his leading judgment, observed: "I do not mean to lay down as law that there may not be some acts of the wife, proximate to acts of misconduct, which may give the husband some right of physical interference with her freedom; just as he, or anyone else, might restrain her if for instance, she were out of her mind and were going to throw herself out of the window. So, if a husband found his wife on the staircase just going to elope with some one, he might have some right to restrain her. It is not necessary, however, to consider that question any further on the present occasion, and I will only say that I can understand that some such authority on the part of the husband might well be justified as reasonable in any system of law."
Lord Esher, M. R., though started his judgment by observing that "a series of propositions have been quoted which, if true, make an English wife the object slave of her husband", yet while discussing the subject clearly observed that the unlimited right for the husband contended before their Lordships to imprison his wife by way of punishment was not available to him only if the conduct of the wife is "innocent of moral offences". Fry, L. J., disposed of this question thus:- "I confine myself to determining the precise question which is raised by this return, and I prefer not to diverge into the consideration of other questions more or less cognate to this. I do not think it necessary for the present purpose to advert to the older authorities on those questions which have been cited to us, beyond saying that I do not regard them with exactly the same feeling as the Master of the Rolls, not think that all our predecessors on the judgment seat were deficient in good sense."
Thus it cannot be said that the view in R. v. Jackson, if applied to the circumstances of this case, is in any way different from what I have held above. I need not discuss the other cases from foreign jurisdiction as, in my view, after the analysis of the case in R. v. Jackson, which admittedly, is the basis of the subsequent decided cases, it is not necessary.
24. The interpretation of the provisions contained in sec--tion 491, Cr. P. C., and Article 98 of the Constitution does not present any serious difficulty. Reliance mainly has been placed on sub- clause (b) of subsection (1) of section 491 wherein it is provided that if a person is illegally or improperly detained in public or private custody within the appellate criminal jurisdiction of the High Court, it may direct that the said person be set at liberty. In clause (b) of sub-Article (2) of Article 98 of the Constitution, it is provided that a High Court, on the application of any person, may make an order that a person in custody be brought before it (High Court) so that it may satisfy itself that he is not being dealt with without lawful authority or in unlawful manner. For the purpose of the present discussion, so far as the facts of the case brought before this Court are concerned, there is no difference between the scope of the two provisions. In both the provisions, the discretion has been left with the High Court; though it is observed that if all the conditions are satisfied, the relief would be very rarely refused. But it cannot be denied that keeping in view the facts and circumstances of each case, the High Court has to exercise its discretion. With regard to the other conditions in this case, unless it is shown that the stay of the detenu in the house of her husband or in the house of Fazil, her father-in-law, or in the haveli of Yara for a limited period was illegal or improper or without lawful authority or in unlawful manner, neither the provisions in section 491, Cr.
P. C., nor those contained in Article 98 of the Constitution would be of any help, either to Naseer, the paramour, in the petition under section 491, Cr. P. C., or to Ramzan his brother, the petitioner in the writ---petition; or for that matter the detenu, in so far as her desire is concerned. It is, therefore, held that these provisions do not, in any way, affect the validity of the order passed by this Court on 20-4-1971.
25. As to the objection that the husband is in jail, therefore at present the detenu cannot be returned to his house and as such should be set at liberty to pursue whatever course of life she may desire; it may straightaway be stated that when this Court passed the order on 20-4-1971, it had not been disclosed that the detenu was married to Shahadat. On 26-4-1971, however, this fact was disclosed before this Court and by the order passed on that day the earlier order was reiterated. By that time, Shahadat had been arrested and was himself in confinement. After the study of law on the subject, particularly verse 34 Sura-e-Nisa, whereby the views have been ordained to guard in the husband's absence what Allah would have them guard (explained in an earlier paragraph of this judgment), it is the duty of the wife to remain faithful to her husband in his absence and to stay in his house unless it becomes impossible for her to stay there. Support for this inference is also available from verse 19 of Sura-a Nisa which has also been explained and discussed above. In other words, if a widow can be restrained after her husband's death from leading a life of lewdness (by confining her) by her brothers---in-law and other relations; there is no reason to suppose that a wife, whose husband has for the time being been confined in a jail under law, should run away from his house, and to think that his relations have no right to restrain her from infidelity and improper conduct. It has already been noticed that Shahadat, his brothers and his uncles are involved in the murder case. Therefore in the circumstances, in which he and his entire family, was at the relevant time and, is at present 'absent', the only course open was and is to allow the next nearest relation, i.e., the father, to exercise the same right and control over his daughter, the detenu, till the husband is able to exercise his control. I, there--fore, see no practical difficulty or legal defect in the implementa--tion of the direction that the detenu be handed over to her father.
26. Another point which was, at least, indirectly broached during the arguments was that the detenu has been denied the right to seek the dissolution of marriage on various grounds, including that of khula.' It may straightaway be commented that she stayed with her husband for about two years and thereafter she eloped with her paramour. According to her, she remained away from the husband for about eight months. It cannot be denied that she has had sufficient opportunity of filing suit for dissolution of marriage. In my order, dated 20-4-1971, I clearly indicated that the orders by the High Court under section 491, Cr. P. C., were subject to the final decision by the relevant Courts including the Family Court. In other words, a way was kept open for her to file a suit for dissolution of marriage. The order has not been implemented so far, i.e., she has not gone in the custody of her father after that order and during this period, till the arguments were addressed, no attempt has been made to file a suit for dissolution of marriage. This would show that the desire of the detenu is to lead her life in sin without getting a divorce from Shahadat and without entering into a lawful marriage with Naseer. But it is conceded that this cannot, in any way, be treated as a permanent desire. She may change her mind any time and the orders already passed by this Court are, in no way, a hindrance in her way. She may file a suit for dissolution of marriage even while staying in the house of her father with the help of the Court concerned.
27. Regarding this aspect of the matter, a very important question arises, namely, whether the law would force the return of a wife to her husband in case she has voluntarily run away from him or is, in some proceedings or connection, in custody of a Court or is present in Court; if her running away from the husband is not motivated by any lewd, indecent or immoral conduct on her part nor in elopement with or in pursuance of desire for another man. Such a situation can arise when the wife informs the Court that she has aversion to her husband and they cannot keep the limits of God (without any such fault on her part) and that she on that account would like to seek release by way of khula'. In my views depending upon the circumstances in each case if the Court comes to the conclusion that the motive of the wife is not immoral or undesirable and that the same being only to get divorce through khula' on some entertainable grounds, the Court may not compel her to return to her husband and in such a rare case may set her at liberty; provided her safety, in this liberty, is otherwise guarded. The support for this view can be found from two sources: one is a Hadith of the holy Prophet, and the other is a later precedent. The Hadith relates to Barairah who was married to a slave named Mughis. She did not live with her husband who followed her disconsolate and weeping in public. The Prophet advised her to go back to her husband. She asked, "Is this an order"? The Prophet said that it was merely a recommendation. She then declined to go to her husband saying "I have no need of him." There is no indication of the infirmity of this Hadith. Therefore, it shows that a woman cannot be compelled, if she has fixed aversion to her husband, to live with him. The precedent I have referred to is of the time of Caliph Umar, cited by Kaikaus, J., in the case Mst. Balqis Fatima. A woman along with her husband appeared before Hazrat Umar, a companion of the holy Prophet, and though he advised her to live with her husband she refused. The Caliph shut her up in a dungeon full of refuse and after being kept there for three days, she was brought before him who asked her how she bad fared. She replied: "I swear by God, I have never passed more peaceful nights". This answer is clearly indicative of what her life had become with her husband. At this Hazrat Umar said to the husband "Give her khula' even if it be in lieu of her earnings". (Kushaf-ul-Ghumma). In every such case whether covered by the Hadith or the precedent, the Court will have to consider the facts and circumstances and will have to give a finding of bona fide assertion and/or claim of the wife, and also that the same is not motivated by a desire for immoral or illegal conduct or for infidelity, lewdness or indecency.
28. Another technical argument was raised that the detenu is present, in this Court and she having refused to go with her husband, how can she be compelled by the High Court to act against her wishes. The substantive law on the question has already been discussed. If according to the law she has no right to refuse to go to the custody of (or on behalf of) the husband, then her desire to be set at liberty and to join her paramour cannot be fulfilled. The Court has undoubtedly the power to dismiss a petition whether it is under section 491, Cr. P. C., or under Article 98 of the Constitution.
The dismissal of the petition would automatically bring about a legal change in the situation and the present custody of the detenu with this Court, which undoubtedly is on behalf of her husband, will have to be transferred to a lawful source. In other words none can be allowed to take benefit out of an act of the Court if he is not otherwise entitled to do so. If such an argument is accepted then, as observed by Nazeer Ahmad Mahmood, J. In the case of State v. Ashfaq Ahmad Sheikh already cited in an earlier part of this judgment, such like wives would continue to "engineer applications under section 491, Cr. P. C., for the purpose of eloping with their paramours . . . . . With the blessings of the High Court." And I may add that the husband, in such like circumstances, would continue to nurse a grievance that the Court deprived him of his rights, in spite of having reached a conclusion in his favour on facts. This Court, I am certain, has sufficient inherent powers to avoid such consequences and to restore the custody of the detenu wife to the original or any other lawful source. I cannot accept the proposition that if the Court comes to a valid conclusion that the detenu should not have been originally removed from the custody of the husband, it can N restore the same custody simply because of the presence of the detenu before it. The status quo ante can always be restored.
29. The last question to be dealt with relates to the jurisdiction of this Court to review the orders passed by it under section 491, Cr. P. C. After the dismissal of the petition filed by Naseer (paramour) under section 491, Cr. P. C. And the orders passed by this Court directing that the detenu be handed over to her father, it cannot be seriously questioned that the same subject cannot be re-opened in review under section 491, Cr. P. C., because in criminal matters, review of judgments, or orders in the nature of judgments, is not permissible. This Court has no inherent jurisdiction (apart from Criminal Procedure Code) to review its orders. The situation, however, has slight changed by Ramzan petitioner having moved the Court under Article 98 of the Constitution and also by the fact that the same case is now being heard by a special Division Bench. Factually speaking, the change is there and it cannot be denied. But the fact remains that the matter is before the same Court. The High Court (although in a Single Bench) passed the earlier orders under section 491, Cr. P. C., and the (same) High Court is again being asked to re-open the matter in writ jurisdiction, before another Bench consisting of two Judges of the Court. In both the relevant provisions, the expression used is the High Court N Whether the High Court decides the matter in a Single Bench o a Division Bench, the question of Letters Patent Appeal being not relevant, the fact remains that the decision at both the stages is to be by the High Court. I am, therefore, of the view that this special Bench acting under Article 98 of the Constitution cannot override the provisions of the Criminal Procedure Code in so far as the question of review is concerned and cannot modify the order passed by the High Court on 20-4-1971, and reiterated on 26-4-1971 under section 491, Cr.
P. C.
30. In the light of the above discussion, I dismiss this Petition, but in view of important questions of law involved I leave the parties to bear their own costs; with the result that the custody of the detenu shall be handed over to her father. The Dar-ul-Aman authorities, where the detenu is being lodged on behalf of the High Court, shall implement this order as soon as possible. The reference made by the A. D. C. (G), by his letter, dated 6-5-1971, is also answered in the above terms; though it lost importance as soon as the detenu was directed by the High Court to be brought from the judicial lock-up at Sahiwal to Dar-ul-Aman, Lahore.
31. Before closing this judgment, I deem it necessary to remark that but for the demands of expediency (The affairs including murder case, in the family of the detenu, her husband and father on the one side and her paramour on the other are highly complicated), I would have liked to issue a notice to the concerned police officer/s for Contempt of this Court in respect of the conduct with regard to the implementation of the aforesaid orders passed by this Court under section 491, Cr. P.
C.
The office report shows that the detenu has sought her liberty by leaving the Dar-ul-Aman. I do net think it is necessary now to pass an order on merits. Let this case be put up before the Bench concerned for necessary action.
ORDER OF THE COURT Since the detenu has left Dar-ul-Aman, no orders are necessary on the writ petition and the reference which are dismissed as infructuous.