MUHAMMAD ABID KHAN vs Mst. NOREEN and others
This criminal revision petition was filed under Section 435 of the Code of Criminal Procedure 1898 against the order of the Sessions Judge Abbottabad, which dismissed the petitioner's habeas corpus petition filed under Section 491 of the Code of Criminal Procedure 1898 seeking the recovery of his brother alleged to be in illegal confinement of his wife. The core legal question was whether the validity of a marriage, divorce, or marital status can be determined through summary proceedings under Section 491 of the Code of Criminal Procedure 1898. The Peshawar High Court held that proceedings under Section 491 are summary in nature and it is beyond the mandate of such jurisdiction to determine disputed questions of Nikah or divorce, which fall exclusively within the domain of the Family Court. The court affirmed the impugned order and dismissed the petition, laying down the principle that marital disputes involving the determination of matrimonial status cannot be adjudicated through habeas corpus proceedings.
- Whether the validity of a divorce or Nikah can be determined in habeas corpus proceedings under Section 491 of the Code of Criminal Procedure 1898?
- Are proceedings under Section 491 of the Code of Criminal Procedure 1898 summary in character?
- Does living with a spouse amount to illegal detention for the purposes of Section 491 of the Code of Criminal Procedure 1898?
- Section 435, Code of Criminal Procedure 1898
- Section 491, Code of Criminal Procedure 1898
' MRS. IRSHAD QAISER, J.---Petitioner Muhammad Abid Khan has filed the present criminal revision petition under section 435 Cr.P.C. Against the order dated 24-9-2013 of learned Sessions Judge Abbottabad vide which the application of the petitioner filed under section 491, Cr.P.C. Was rejected.
2. It appears from the record that petitioner Muhammad Abid, the brother of alleged detenue Muhammad Asif, filed a habeas corpus petition under section 491, Cr.P.C. Against respondent No,1 to the effect that his brother Muhammad Asif has improperly and illegally been detained by accused/respondent in his own house for the last more than one week and is neither being allowed to move out of the house nor to meet the petitioner. That on 24-2-2013 Muhammad Asif faced same neuro problem and remained under treatment. That respondent No,1 was his wife but she has been divorced by Asif. In order to take revenge, the respondent confined him in his room and he is being mentally tortured by her. In her reply the allegation of the petitioner was strongly rebutted by respondent and contended that the very theme of the petitioner is against the mandate, rational and spirit of section 491 Cr.P.C. Muhammad Asif is the bona fide husband of the respondent and the only aim of petitioner is to squeeze out the money and grab the property of her husband. That petitioner is interfering in the private life of respondent No,1 and her husband. That all sort of medical treatment is being administered by respondent. That to live with love and affection with wife does not amount to detention. After hearing the arguments the learned Sessions Judge vide order dated 24-9-2013 rejected the petition. Hence the present petition.
3. I have heard learned counsel for the parties and perused the record.
4. The main arguments of learned counsel for petitioner are that respondent has been divorced by her husband Muhammad Asif. There is no relationship of husband and wife between Asif, brother of petitioner, and respondent No,1 but in order to get revenge she kept him in illegal confinement in order to increase his agonies. The factum of divorce was strongly denied by respondent. In order to settle the matter, on 11-10-2013 petitioner was asked to produce relevant record in respect of divorce of respondent with the alleged detenue. But instead of producing relevant record he produced his affidavit as well as the affidavits of Qazi Muhammad Sheheryar Advocate and one Abdul Jalil, which is not the substitute of divorce deed which could give a slight clue regarding the illegal detention. Moreover, it is settled that proceeding under section 491, Cr.P.C. By their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. It has rightly been held by the Sessions Judge that it is beyond the mandate of section 491, Cr.P.C. To determine the factum of Nikah or divorce between the couple and it shall be none other than the Judge Family Court to adjudicate the same. Reference this respect is made to PLD 2005 SC 219 wherein it is held:-- "It was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of the injunction of Islam, in proceeding under section 491, Cr.P.C."
5. Learned counsel for petitioner could not point out any illegality in the impugned order.
Accordingly, for the reasons stated hereinabove, the criminal revision as well as Criminal Miscellaneous No,669 of 2013 is dismissed being devoid of any force.