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Criminal Miscellaneous No. 5445/H of 1969, decided on 22nd September 1969.

S. 491 ‑ Habeas corpus‑Whether a sui juris woman can be allowed to accompany her paramour in preference to her husband‑Muhammadan Law.

An application under section 491, Criminal Procedure Code seeking liberty of a married woman, with whom the applicant had illicit connection, was pressed on the plea that notwithstand ing the failure of the petitioner to establish his status as husband of the woman, she being sui juris, should be set at liberty. The application was not allowed and the woman was directed to be restored to the husband (respondent) who was present in the Court. The Court remarked that exercise of discretionary jurisdiction under section 491, Criminal Procedure Code in such a case would virtually amount to giving High Court's blessings to the immoral activities of two unscrupulous persons who, in Islam, are liable to extreme penalty :

Held, a very important question arises for determination, namely, whether a woman, who is sui juris, can be allowed to accompany her paramour in preference to her husband in the circumstances of this case. On the one hand there is the fundamental right of the woman to be set at liberty, which appears to be on the other, in direct conflict with a clear injunc tion of the Holy Qur'an, which reads as follows:

This positive injunction of the Holy Qur'an leaves one in no manner of doubt that under certain circumstances a husband can even go to the extent of giving a beating to his wife, who persists in her rebellious conduct. In the instant case, however, there was no truth in allegations of maltreatment, torture or danger to the woman's life, who was the mother of the respon dent's two children, but who, was undoubtedly a if not anything more. If in the exercise of her fundamental right of personal liberty she were allowed to make a choice it was certain that she would go with the petitioner, her paramour, the two having collusively manoeuvred to file .the petition invoking the discretionary jurisdiction of High Court under section 491 of the Cr. P. C. Under Islamic Law the respon dent, being the husband of the woman, is entitled to her custody as her legal guardian, his right of guardianship coupled with the liberty granted to him in the above‑quoted Quranic verse cannot be allowed to be frustrated by such a collusive circum vention and as such the provision contained in section 491, Cr. P. C. cannot be given full effect to in circumstances of this nature.

Petitioner in person.

Liaqat Hussain for Respondent.

Detenu with Mansab Ali Bailiff.

Sultan Ali, S. I. present.

Having perused the statements of the parties, as also of the witness examined in this connection prima facie, I am of the view that Mst. Naziran is the lawfully wedded wife of Sarang res pondent and that she was carrying on a liaison with the petitioner who even earlier had abducted her twice and has now recourse to proceedings under section 491, Cr. P. C. in order to continue his illicit connection although he is himself the husband of two wives who are living with him at the moment. His claim of being the husband of Mst. Naziran has been prima facie belied and falsified by the statement of Mian Bashir Ahmad who, according to the petitioner, had performed the Nikah ceremony, as also of Ahmad Khan Lambardar, who is the husband of the petitioner's real sister. From this, I cannot avoid an impression that Mauladad, who is equally related to him, has prima facie made a false statement in this Court ; in support of untenable position.

2. It has been vehemently contented on behalf of the petitioner that Mst. Naziran being sui juris, should be set at liberty, nowithstanding the failure of the petitioner to establish his status as her husband. A very important question arises for determination, namely, whether a woman, who is sui juris, can be allowed to accompany her paramour in preference to her husband in the circumstances of this case. On the one hand there is the fundamental right of the woman to be set at liberty, which appears to be on the other, in direct conflict with a clear injunction of the Holy Quran, which reads as follows :‑

This positive injunction of the Holy Quran leaves one in no manner of doubt that under certain circumstances a husband can even go to the extent of giving a beating to his wife, who persists in her rebellious conduct. In the instant case, however, I am not satisfied that there is any truth in allegations of mal treatment, torture or danger to the woman's life, who is the mother of the respondent's two children, but who is undoubtedly a if not anything more. If in the exercise of her fundamental right of personal liberty she is allowed to make a choice, I am certain that she would go with the petitioner, her paramour, the two having collusively manoeuvred to file this petition invoking the discretionary jurisdiction of this Court under section 491 of the Cr. P. C. Under Islamic Law the respondent, being the husband of the woman, is entitled to her custody as her legal guardian. His right of guardianship coupled with the liberty granted to him in the above‑quoted Quranic verse cannot be allowed to be frustrated by such collusive circum vention and as such in my humble opinion the provision contained in section 491, Cr. P. C. cannot be given full effect to in circum stances of this nature. I am not, therefore, inclined to allow this petition in exercise of my discretionary jurisdiction which would virtually amount to giving this Court's blessings to the immoral activities of two unscrupulous persons who, in Islam, are liable to extreme penalty.

4. The upshot of the discussion, therefore, is that the petition fails and is hereby dismissed with the direction that Mst. Naziran be restored to her husband, Sarang, who is present Court.

5. Before parting with this case, I would respectfully observe that I am conscious of a chain of authorities which support the contrary view and should have recommended the constitution of a larger Bench to consider the scope of section 491, Cr. P. C. vis‑a‑vis the husband's right to the guardianship of his wife further fortified by the above‑quoted Quranic Injunction, but I understand that the matter is already under consideration of their Lordships of the Supreme Court in another case and it is hoped that an authoritative, pronouncement will be forthcoming in due course of time.

6. Prima facie, I have come to the conclusion that the petitioner had not only sworn a false affidavit, but had also made a false statement in this Court when he claimed to be the husband of Mst. Naziran who also supported his false claim and perjured herself. Likewise, Mauladad, a relation of Fateh Sher petitioner, appears to have made a false statement in Court. Let notice issue to them for the 15th of October 1969, to show cause why they should not be proceeded against under section 476, Cr. P. C.

A. E. Petition dismissed.

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