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Petition for Special Leave to Appeal No. 174 of 1972, decided on 30th October 1972.

(On appeal from the order of the Lahore High Court, Lahore, dated 29‑6‑1972, passed in Criminal Miscellaneous No. 359/H of 1972).

Criminal Procedure Code (V of 1898),

S. 491‑Habeas corpus‑ High Court coming to conclusion that habeas corpus petition filed for furthering illicit love affair and avoiding criminal prosecution for kidnapping/abduction of woman‑Relief under S. 491, held, justifiably refused‑Courts do not function in vacuum and must take due note of social and moral environments prevailing in community, such as, tendency on part of some young men to abuse provisions of S. 491 in furtherance of their illicit love affairs.

Mauj Ali v. Syed Safdar Hussain Shah distinguished.

Muhammad Nasim Khan, Advocate instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 30th October 1972.. .

This petition for special leave to appeal is directed against an order made by a learned Single Judge in the Lahore High Court dismissing a petition filed by the present petitioner, Shaukat Ali, under section. 491 of the Cr. P. C. in respect of a young woman named Najma Bibi.

The petitioner alleged in his application that he had married the girl with her free consent, but her father, Altaf Hussain Qureshi (respondent No. 1) had registered a false case against him under section 363 of the Pakistan Penal Code, and that the girl was now being forcibly detained by her father and brother, Mahmoodul Hassan (respondent No. 2), although she was his lawfully wedded wife. In support of these assertions he produced a nikahnama showing that the marriage had taken place on the 19th June 1972.

The learned Judge had deputed a bailiff of the High Court to recover the young woman, but she was not found at the house of her father, who appeared before the Court on the 29th June 1972, and stated that the girl had been taken away by her mother to the house of some relatives. Basing himself on these 'facts, as well as on his experience that such like applications were being frequently made in a mala fide manner by the paramours to obtain custody of the girls and to disgrace their parents, the learned Judge dismissed the petitioner's application. He also observed that such applications were in the nature of a device to escape the consequences of prosecution under section 363 or 366 of the P. P. C. as the case may be.

It is submitted on behalf of the petitioner that the learned Judge has fallen in error in thinking that the pendency of a criminal case against the petitioner can operate as a bar to the restoration to him of the custody of his lawfully wedded wife.

In support of this submission he has referred us to Mauj Ali v. Syed Safdar Hussain Shah. The learned counsel also con tends that the girl being major and having contracted the marriage of her own free will, as is evident from a statement made by her before a Magistrate on the 21st June 1972, it was obligatory on the High Court to restore the girl to the petitioner.

We find that the facts in the precedent case were completely different. The girl in that case was present before the High Court and had supported the petitioner on the point of marriage with her free consent, and had expressed her preference to accompany her husband. In these circumstances the High Court had allowed her to go with her husband. The Supreme Court refused to allow special leave to appeal against the order of the High Court on the ground that the woman having been lawfully married in accordance with the provisions of the Muhammadan Law, no fault could be found with the order passed by the High Court especially when she had freely expressed her desire to accompany her husband. In that case, no doubt, the alleged husband was facing prosecution under sections 363/366, P. P. C. but nothing was said regarding the effect of the pending prosecution on the petitioner's right to obtain the custody of his alleged wife.

Now, in the case before us, the woman was not found at the house of her parents when the bailiff of the High Court visited the place, and instead it was stated that the woman had been taken away by her mother to the home of some relatives. Such being the case the woman was not before the Court so as to enable it to ascertain the correct position regarding her alleged marriage with the present petitioner, and her wishes in the matter. Secondly, we find that Mst. Najma had, in fact, made two state ments‑ before the same Magistrate, one on the 21st June 1972, in favour of the petitioner and her marriage with him, and the second on the 29th June 1972, alleging intimidation and coercion by the petitioner, and her desire to remain with her parents. In the presence of the latter statement it could not be said that she would have been willing, if present before the Court, to accompany the present petitioner on the basis of her alleged marriage with him. The conflicting statements made by the woman before the same Magistrate within 8 days of each other would obviously necessitate an investigation into the circum stances of her disappearance from her parental home. The High Court would have been pre judging the issue by giving its own opinion in the matter. For this reason the pendency of the criminal case against the petitioner did provide sufficient justifica tion for the High Court to refuse to make an order restoring the custody of the woman to the petitioner.

We are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of the Cr. P. C. on the part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love affair and avoiding criminal prosecution in connection with the kidnapping/abduction of the woman in question.

For the foregoing reasons, we see no justification to interfere and would accordingly dismiss the petition.

Petition dismissed.

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