ZAHID PERVAIZ Versus KHURRAM ISLAM

ORDER

MUJAHID MUSTAQEEM AHMED, J .---Through this revision petition filed in terms of sections 435/439, Cr.P.C. Zahid Pervaiz, petitioner has assailed the order dated 20.7.2017 passed by a learned Addl. Sessions Judge, Faisalabad being against law and facts and as such not sustainable.

2. The case of the petitioner is that in the year 2001 he was married with Mst. Shehnaz Kauser to whom he divorced on 10.1.2017. (Copy of divorce deed appended as Annexure-II with this petition). Thereafter he has solemnized marriage with Mst. Bismah Khurram, daughter of respondent No. 1 vide Nikah Nama dated 17.1.2017. Respondent No.1/real father of Mst. Bismah Khurram got lodged case FIR No. 662 dated 11.7.2017 for the offence under section 365-B, P.P.C. at Police Station Batala Colony, Distt. Faisalabad against the present petitioner. Thereafter he moved application under section 491, Cr.P.C. for recovery of his daughter before learned Additional Sessions Judge, Faisalabad who vide impugned older dated 20.7.2017 sent Mst. Bismah Khurram to "Darul Aman" while observing as under:

"Record reveals that alleged detenue is aged about 16 years, so stricto senso, she cannot be considered sui juris. Admittedly, respondent No.2 contracted marriage with his wife's niece (alleged detenue) and according to the injunction of Islam, it is not permissible to a man to marry his wife's niece at the same time. Moreover, FIR, has already been registered against the respondent No.2 in this regard and investigation is pending. On demand, respondent No.2 could not produce the divorce deed qua his first wife. So in these circumstances, custody of alleged detenue cannot be given to the respondent No.2 as prima facie it will tantamount to give license to commit Zina. Since Mst. Bismah Khurram is not ready to go with her father at any cost, therefore, this court has no option except to send Mst. Bismah Khurram in Darul Aman, Faisalabad. Hence Mst. Bismah Khurram is hereby ordered to be sent to "Darul Aman" Faisalabad till the declaration of valid marriage by the court of competent jurisdiction or other concerned quarter."

3. Contention heard. Record perused.

4. Mst. Bismah Khurram, detenue has been produced before the Court from "Darul Aman" who has stated that she is 19 years of age and being sui juris is not willing to live in "Darul Aman" and requests that she be set at liberty.

5. The reasons which prevailed with the learned Addl. Sessions Judge, Faisalabad to send Bismah to "Darul Aman" were that present petitioner has married with Bismah as well as her aunt and as such under the injunctions of Islam it is not permissible for him to marry an aunt and her niece at the same time. In case law reported as Ali Muhammad v. The State and others (2013 SCMR 1484) Apex Court referring interpretation of section 491, Cr.P.C. made in Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6) has held that under the said provision of law court has only to see that if a person is minor it 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 ante 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 of the Code. In the case reported as Mir Muhammad v. The State and 4 others {1995 PCr.LJ 2085 (Karachi)} it has been held that a detenue can be sent to "Darul Aman" when she has shown apprehension of danger to her life if she is sent with either of the parties. In the case of Muhammad Ali (Supra) the apex Court further observed that after final decision of petition under section 491, Cr.P.C. the detenue, a free person, cannot be put to physical restraint or confinement in "Darul Aman" for an indefinite period and that too not on the basis of any concrete fact or allegation. Similarly in case Mst. Sahi Bi v. Khalid Hussain and 6 others (1973 SCMR 577) it was held that under section 491, Cr.P.C. when detenue sui juris is unwilling to go with her husband or guardian, Court has no alternative but to set her at liberty and allow her to move freely.

6. While adjudicating petition under section 491, Cr.P.C. as observed by learned trial Court the petitioner could not produce copy of divorce deed but the same has been placed before this Court. Learned counsel for the petitioner on the strength of Para 263/264 of Principles of Mahomedan Law by D.F. Mullah Pakistan Edition revised by Syed Ali Hassan Published by Punjab Law Book House, has maintained that the marriage of a man with aunt and her niece is irregular and not void and by divorcing the wife who constitutes the obstacle the marriage with latter becomes valid. Relying on case Allah Dad v. Mukhtar and another (1992 SCMR 1273) learned counsel for petitioner has maintained that divorce would become effective even in the absence of notice to the chairman union council under section 7 of the Muslim Family Laws Ordinance (VIII of 1961). As such it is prima facie established that at the time of solemnization of Nikah with Mst. Bismah the present petitioner has already divorced his first wife Mst. Shehnaz Kauser.

7. As noted above, the proceedings under section 491, Cr.P.C. are summary in character. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention i.e. whether a detenue is to be set at liberty and a consequence thereof be permitted to go with the person of his or her choice or to drop the proceedings when the detention is found legal. The Court while deciding an application under section 491, Cr.P.C. is not required to go into the question of status of relationship of the parties by holding full-fledged trial of the counter claims and it should concern with free will of the detenue. To my view while deciding the petition under section 491, Cr.P.C. the learned Addl. Sessions Judge attached so much importance to the existence of Nikah of the petitioner with aunt of Mst. Bismah detenue in spite of the contention of learned counsel that Zahid Pervaiz, petitioner herein had stated before the Court that he had divorced Mst. Shehnaz Kauser before contracting Nikah with the detenue, and thus practically assumed the role of Judge Family Court where existence or otherwise of Nikah with Mst. Shehnaz Kauser while contracting Nikah with Mst. Bismah was to be proved. Thus the learned Addl. Sessions Judge while sending Mst. Bismah to Darul Aman traveled beyond jurisdiction conferred on him by section 491, Cr.P.C.

8. Mst. Bismah being sui juris cannot be detained in "Darul Aman" against her wishes. The impugned order has resulted in curtailment of right of liberty of Mst. Bismah, petitioner's wife. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees protection of life and liberty of citizens and right to liberty is placed on higher pedestal which is to be respected by all and sundry. It is a trite that courts are guardians of liberty of citizens and under the Constitution are bound to protect such fundamental right of citizens of State. There is no cavil that the object and purpose of establishing "Darul Amans" throughout the country is to provide protection to the oppressed or homeless ladies and to provide them shelter when they feel insecure with their family members or in the society. When a woman makes a prayer before Magistrate for security to her life, she can be lodged to "Darul Aman" but still the woman has the right to make prayer at any stage to the Incharge of "Darul Aman" or to the competent Court on whose order she has been sent to "Darul Aman" to release her and restore her right of liberty. In such course, she cannot be further kept in "Darul Aman" under the law of the land. As such the order of detention of Mst. Bismah in Darul Aman is, declared as null and void and without jurisdiction.

9. Consequently, instant criminal revision is allowed, the impugned order is set aside and Mst. Bismah being sui juris is set at liberty. She may join person of her own choice. The authenticity of divorce deed can be examined and adjudicated by competent forum, if challenged.

JK/Z-21/L Revision allowed.