Mst. Niyamat vs S.S.P Tharparkar @ Mithi and others
This Criminal Miscellaneous Application was instituted under Section 491 of the Code of Criminal Procedure 1898 by the applicant, who sought directions for police officials to recover and produce her daughter on grounds of alleged illegal detention by private respondents. The core legal question was whether the alleged detainee was unlawfully restrained so as to warrant habeas corpus directions under Section 491 of the Code of Criminal Procedure 1898. The Station House Officer submitted a search report confirming that the daughter was not found at the private respondents' residence. Concurrently, counsel for the private respondents produced an order from a pending constitutional petition before the High Court, which demonstrated that the daughter, being sui juris, had contracted marriage of her own free will and had obtained protective orders against familial harassment. The High Court held that the daughter was not in illegal detention, concluding that the purpose of the application was exhausted. The Court disposed of the application, reserving the applicant's liberty to participate in the pending constitutional petition.
- Can an application under Section 491 of the Code of Criminal Procedure 1898 be maintained where an alleged detainee has appeared before the High Court in a separate constitutional petition affirming a freewill marriage?
- Whether an adult sui juris woman living with her spouse can be treated as being under illegal detention at the instance of her family members under Section 491 of the Code of Criminal Procedure 1898?
- Does the filing and pendency of a constitutional petition seeking protection of a freewill marriage render a parallel habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898 infructuous?
- Section 491, Code of Criminal Procedure 1898
ORDER
Adnan-ul-Karim Memon, J. Applicant Mst. Niyamat has filed this Criminal Miscellaneous Application under section 491 Cr. P.C. seeking direction to the police officials to recover and produce her daughter namely Mst. Hawa, who is illegally and improperly detained by the private respondents in their house situated at village Amarno Soomro Deh Sadoyi, P.S and Taluka Diplo, District Tharparkar @ Mithi.
2. In compliance with the order issued by this Court, the SHO P.S Diplo present and submits his report along with a memo of house search. SHO submits that the alleged detainee was not found during the search at the house of private respondents.
3. Learned counsel for the private respondent submits that alleged detainee Mst. Hawa along with her husband appeared before this court at Karachi in C.P.No.S-437 of 2024. He submitted a copy of the order dated 17-04-2024 passed in the said Constitutional Petition; the same is reproduced as under:- "The petitioners are present in Court along with their counsel. Learned counsel states that being sui juris petitioner No.1 (Ms. Hawa) entered into marriage with petitioner No.2 (Shahbaz) with her own free will and without any pressure against the wishes of her family members. In support of his submissions, the counsel draws attention to the Nikahnama dated 13-11-2023 (at Court File Pg. 21) and Affidavit of Freewill (at Court File Pg. 23). As a result the private Respondents are unhappy and are threatening the petitioners with dire consequences.
Issue notice to the respondents as well as AAG for 10-5-2024. In the meanwhile, the official Respondents are directed to provide protection to the Petitioners in accordance with law.
Copy of this order may be transmitted to the official respondents through e-notice.
4. In view of the above, alleged detainee Mst. Hawa cannot be claimed in illegal detention, as portrayed by the applicant; however, if the grievance of applicant still subsists, he is at liberty to appear in C.P.No.S-437 of 2024 to assist the court, if the lis is pending.
5. The very purpose of filling this application under section 491 Cr. P.C. has been served as the alleged detainee is no more in illegal detention in terms of the order dated 17-04-2024 passed by this Court; therefore, the instant Criminal Miscellaneous Application stands disposed of.