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Criminal Miscellaneous Application No. 973 of 1976, decided on 14th September 1976.

‑‑ S. 491‑Habeas corpus‑Question of detenu being wife of petitioner disputed and detenu herself admitting to have lawfully been wedded to respondent‑Detenu not heard of since her alleged abduction and no other material on record to show that she was wrongfully being confined‑Petition, held, had no substance and dismissed, in circumstances.‑[Habeas corpus].

Ramchand M. Rangwani for Petitioner.

The petitioner in this habeas corpus petition is claiming the custody of Mst. Sakina alias Dhano as being his wife on the ground that she is being wrongfully confined by the second respondent.

It is alleged that the petitioner was married to her on 5th March, 1974 at village Vadadani, Taluka Shahdadpur, District Sangher and that before the Nikah ceremony Mst. Sakina sworn an affidavit before a Magistrate at Shahdadpur stating that she was 18 years old and that her father having died and her mother baying remarried, she was left in the custody of her uncle Sozan who wanted to marry her to an old man against the compensation of Rs. 5,000, upon which she objected but was beaten, whereafter she left the house and showed an inclination to marry the petitioner, to whom she was betrothed by her father. On 25th October 1974 she was forcibly taken away from his house by her uncles, Abmad and Haji, with the help of the police and for this act of high‑handedness be had sent applications and telegrams for redress to the higher authorities.

It appears that Mst. Sakina filed a family suit "for Jactitation of marriage" but the suit proceeded ex parts as against the petitioner and was dismissed, Thereupon, an appeal was filed before the District Judge, Mirpurkhas. The petitioner on being served filed an application before the District Judge stating that some other woman was produced instead of Mst. Sakina and that it be ordered that she should appear in person on the next date of hearing. The learned District Judge directed for her production in Court by order dated 2Cth May, 1976 but she was not produced on the ground that she was ill and finally the appeal was withdrawn and dismissed as such by order dated 6th August 1976.

We have noticed from the Memo of Appeal that Mst. Sakina was married to the second respondent and the Nikahnama was duly registered under the provisions of Muslim Family Laws Ordinance, 1961. It was further alleged that on account of Strained relations with the second respondent she bad left his house and while proceeding towards the house of her grand mother she was enticed away by the petitioner and the others and wrongfully confined and made to sign a document which was not read out to her. On being rescued she filed the suit for "jactitation of marriage" as that document turned out to be a Nikahnama. One of the grounds taken in the appeal to assail the dismissal of the suit was that the family Court had wrongly dismissed the suit as not being maintainable under the West Pakistan Family Courts Act, 1964 as it has' exclusive jurisdiction to entertain the suit and not the civil Court as held by Family Court. Another ground taken was that this was the only remedy available to her, for at no time she had married the petitioner.

According to the case of the petitioner Mst. Sakina was forcibly taken away from his house on 25th October, 1974 and thereafter there was litigation between the parties and it was only when the appeal was withdrawn that the petitioner took the step of filing this petition for securing the custody of Mst. Sakina, The question as to whether she was his wife is also disputed and the learned counsel for the petitioner was unable to produce any material on record to show that she is being wrongfully confined. In fact, the learned counsel candidly conceded that the petitioner had not heard from her since about the time she was alleged to have been forcibly taken away. In the circumstances, when it is being claimed by Mst. Sakina herself that she is lawfully wedded to the second respondent, it is difficult to believe that she is being wrongfully confined. In the context of the disputed facts it will be for the petitioner to establish his marriage with Mst. Sakina before he can seek redress under section 491, Cr. P. C. and for that purpose he should approach another competent Court if so advised.

There is no substance in this petition, which is dismissed in limine.

Petition dismissed.

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