1. SALAHUDDIN AHMED, J.-This petition for special leave is direct--ed against the order of a learned Single Judge of the Lahore High Court setting the detenu woman at liberty and allowing her to accompany whosoever she likes. The order was passed on the application of respondent Khushi Muhammad under section 491 of the Code of Criminal Procedure.
2. Respondent Khushi Muhammad alleged that acting as de facto guardian of the detenu he gave her in marriage to one Muhammad Din. Mohd. Din divorced her and she returned to the house of the respondent where her father was also residing. The father passed on the detenu to petitioner Sardara and respondents Nos. 2 to 4 and she was kept by them in illegal detention.
3. The learned Single Judge of the High Court directed the S. H. O. Of the relevant police station to recover and produce the detenu in Court. The detenu was accordingly produced in Court and she partly supported the allegation of Khushi Muhammad, but added that her father had married her to petitioner Sardara against her will, and the latter had kept her in illegal detention. She refused to return to her father or to the petitioner or to respondents Nos. 2 to 4. She expressed her wish to live with Khushi Muhammad, who she claimed was her first cousin.
4. The learned Single Judge found the detenu to be 20 years old, and set her at liberty.
5. This order is perfectly in consonance with the decision of this Court in the case of Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6). In the case under report it has been observed as follows "The High Court has two-fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to Law ; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order cabs be passed regarding that person.
6. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance, with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may `set at liberty', but cannot restore status quo ant against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allow--ing a person freedom of movement is an abuse of the process of the Court.
7. It escaped the notice of the learned Judge that even a decree for restitution of conjugal rights passed by a competent Court is not executed by handing over the custody of the wife to the husband. Order XXI, rule 32, provides that where a party against whom a decree for restitution of conjugal rights has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it the decree may be enforced by attach--ment of his property. Cases in which decree is for the specific performance of a contract or for an injunction the decree may be enforced by his detention in the civil prison and by the attach--ment of his property so that even a civil Court cannot arrest a wife who refuses to go over to her husband notwithstanding that a decree for restitution of conjugal rights has been passed in favour of the husband."
8. It has been contended on behalf of petitioner Sardara that as the detenu was his lawful wedded wife the High Court acted contrary to the clear injunctions of Holy Quran and the Sunnah in not restoring her to the husband, the petitioner. In support of this contention the case of Fateh Sher v.
9. Sarang (PLD 1971 Lah. 128) has been cited.
10. We are unable to accept this contention. In the first place although respondent Khushi Muhammad alleged that the father of the detenu passed her on to respondents Nos. 2 to 4, the detenu said that she had been married to petitioner Sardara against her will. It is thus evident that not only the factum of the marriage but also its validity is in question. In the second place the facts of the case reported in PLD 1971 Lah. 128 were entirely different. In that case the High Court found that the detenu was a married woman and that the application under section 491 of the Code of Criminal Procedure was a collusive affair between her and her paramour. In these circumstances the Court in the exercise of its discretion was correct in directing that the woman although a sui juris be restored to her husband. Any other course would not only have resulted in giving the Court's blessings to the immoral activities of two unscrupulous persons who, in Islam, were liable to extreme penalty, but also could have deprived her of an opportunity to correct herself. If the petitioner is really the husband of the detenu, and bona fide wants her to be restored to him, the proper course for him is to approach the civil Court for restoration of his conjugal rights.
11. The petition is accordingly dismissed.