Monday, 7 July 2014

Wife cannot be forced to live with her husband

PLJ 2014 Cr.C. (Karachi) 327
Present: Muhammad Ali Mazhar, J.
versus
Crl. Misc. Appln. No. S-690 of 2011, decided on 18.5.2012.
----A woman who is sui juris cannot be kept in Darul Aman when she no longer wants to stay there. [P. 331] A
----If the person is a minor, the Court 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 561-A, Cr.P.C., as it can not be said that allowing a person freedom of movement is an abuse of the process of the Court.           [P. 332] B
PLD 1972 SC 6 & 1987 SCMR 906, ref.
----A girl being sui juris and her statement having been recorded voluntarily and the Court was justified to pay regard to her wishes and to let her go.    [P. 332] C
1973 SCMR 189, ref.
----Under Muhammadan Law, sui juris women cannot be forced to live with her husband against her wishes--Quranic injunction is against it--According to Muhammadan Law if there is disagreement between husband and wife, wife is entitled to live separately from her husband--It was further observed that it was open to her husband to file suit for restitution of conjugal rights against detenue for redress of her grievance.      [P. 332] D
1973 SCMR 577, ref.
----S. 491--Habeas Corpus--Unwillingness of the detenue to live with her brother or in Darul Aman is to set her at liberty--Even in the latest case of Rinkle Kumari (supra), honorable Supreme Court held that they are sui juris and fully in position to decide about their future and the matter was disposed of with directions to the DIG, Sukkur to take said ladies in safe custody to places of their own choice arid wherever they want to stay being sui juris--DIG was also directed to provide protection to them in terms of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, as it is the duty of State to provide them protection--Bone of contention whether the divorce has validated and or became effective or not, this question cannot be decided by this Court under habeas corpus petition which legal position has been conceded almost by all the counsel representing the parties and the APG--So far as the further lodgment of the Mst. "S" in Darul Aman is concerned, let me clarify that she was on her own accord and freewill temporarily lodged in the Darul Aman as she complained against the maltreatment, attitude and unreasonable conduct of her brothers, but now she has categorically stated in the Court that being a sui juris and a matured lady she can look after her person and her own affairs and she does not want to go back to the Darul Aman nor with her brothers who kept her under unlawful confinement/detention but she requested that she may be set at liberty forthwith to live her own life.          [Pp. 332 & 333] E & I
----Sui juris is a Latin phrase that literally means "of ones own laws"--In civil law the phrase sui juris indicates legal competence, the capacity to manage one's own affairs--It also indicates an entity that is capable of suing and or being sued in a legal proceeding in its own name without the need of an ad litem--It also relates to customary, unique rights afforded to an individual unequal and exceptional, per feudal prerogative legal structures (that were additionally in personam and so legally reciprocal at the scale of personhood, effectively accruing constituencies polity by individuation). [P. 333] F
----Meaning of Rights--Sui Juris, means a person of his own right, possessing full social and civil rights, not under any legal disability, or the power of another, or guardianship--Having capacity to manage one's own affairs, nor under legal disability to act for one's self.  [P. 333] G
Black's Law Dicitionary, ref.
Constitution of Pakistan, 1973--
----Art. 9--Liberty--Fundamental right--A major Muslim woman like a major Muslim such is sui juris and entitled to the same rights and liberties. There is no law that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability. Article 9 of the Constitution guarantees that no person can be deprived of life or liberty except in accordance with law, as such a major Muslim girl cannot be detained in Dar-ul-Aman without her consent.           [P. 333] H
Mr. Ghulam Shabir Shar, Advocate for Applicant.
M/s. Shaikh Amanullah & Ghulam Murtaza Korai, Advocates for Respondents No. 2 & 3.
Mr. Sardar Ali Shah Rizvi, APG for State.
Date of hearing: 10.5.2012.
Order
This application has been brought under Section 491, Cr.P.C. with the following prayer:
"(a)      That this Honourable Court may kindly be pleased to issue rule nisi and direct the Respondent No. 1 to recover detenue Mst. Shaista from the wrongful confinement of Respondents No. 2 & 3 in their house and she may be produced before this Honourable Court and her statement may be recorded and after that she may be set at liberty.
(b)        To direct the Respondent No. 1 that he may also ensure the attendance of the Respondents No. 2 & 3 in this Honourable Court on the date of hearing.
(c)        To grant any other relief which this Honourable Court deem fit and proper."
2.  In a few words, the claim of the applicant is that on 15.1.2011, he contracted love marriage with detenue Mst. Shaista with the consent of parents of both the parties and Rukhsati took place. It is alleged that after contracting the marriage, the parents of the applicant were annoyed and put pressure upon the applicant to give divorce to his wifewhich the applicant refused. On such refusal applicant's parents issued threats to the applicant that if he will not divorce his wife, he will be deprived from his share in the property. The applicant under pressure signed the divorce paper but never pronounce divorce to his wife. The applicant approached a religious institution and obtained Fatwa that forcible written divorce on a paper without consent of the husband is not a valid divorce and if a person has not announced divorce to his wife and signed forcibly divorce paper, the divorce is not valid. Another Fatwa states that divorce which has been obtained forcibly is not valid till divorce is not announced and conveyed to the wife bywords/mouth.
3.  On 11.12.2011, applicant approached the Respondent No. 2 and 3 who are real brother of the detenue Mst. Shaista and asked them that he wants to take his wife back to his house but the Respondent Nos. 2 and 3 became annoyed and ousted him from their house and also issued threats to the applicant that if he will come again to take his wife from their house, he would be murdered. It is further contended that Ms. Shaista contacted to the applicant and informed him that her brothers are annoyed, her life is in danger and they have kept her under wrongful confinement/detention.
4.  Notice was issued to the Respondent Nos. 2 and 3, who appeared along with detenue Mst. Shaista and filed the statement/objections in which it is stated that applicant Muhammad Asif had contracted marriage in the month of January, 2011, with their sister namely Mst. Shaista and on 20.4.2011 he divorced their sister Mst. Shaista with his own consent through Divorce Deed No. 509 dated 10.4.2011. Despite conveying the divorce, the applicant started issuing threats to the Respondent Nos. 2 and 3 and their other family members. The applicant had sent the divorce deed through courier service TCS to the Respondent No. 3. It was further contended the sister of Respondents No. 2 and 3 cannot live with the applicant without intervening marriage.
5.  The learned counsel for the applicant argued that the applicant never signed any divorce deed with his freewill but under the pressure of his parents and brothers and under duress, his signature was taken. The learned counsel further argued that no notice was ever served under Section 7 of the Muslim Family Laws Ordinance for confirmation of divorce and even no meeting was arranged for any reconciliation or confirmation purpose, as required under Section 7 of the aforesaid Ordinance. It was further averred that the applicant also obtained Fatawa(s) from different school of thoughts and in all Fatwa's, it is clearly mentioned that under the given circumstances, divorce could not be validated/effected. He further argued that no divorce was ever communicated to his wife. The learned counsel also placed a copy of recent order passed by the honorable Supreme Court in Constitution Petition No. 70 of 2007 which is a famous case of Mst. Faryal Bibi, (Rinkle Kumari) and Dr. Hifza, (Dr. Lata). Both were produced before the honorable Supreme Court and the honorable Court held that they are sui juris and are in a position to decide about their future and DIG, Sukkur was directed to take both ladies in safe custody to the places of their own choice and wherever they want to stay.
6.  Conversely, the learned advocate for the Respondents No. 2 & 3 argued that indenture of divorce was executed by the applicant in presence of witnesses in the month of April, 2011 and after passing of at least six months, he filed this application and during this period, he maintained complete silence. The learned counsel also relied upon some Fatwas which were obtained by the Respondents No. 2 & 3, in which it was stated that divorce given by the applicant was valid and became effective. The learned counsel further argued that whether the applicant and alleged detenue are the husband and wife or not, or whether divorce became effective or not, all these questions, can only be resolved by the Family Court. Even counsel for the Respondents No. 2 & 3 placed one more Fatwa on the record which was in fact given by the same scholar who earlier gave Fatwa in favour of the applicant and stated that divorce was not validated/effected but in his subsequent Fatwa, he took divergent view and withdrawn his earlier Fatwa and declared that the divorce has become effective. The learned counsel vehemently argued that till the issue of divorce is resolved, the detenue should be lodged in the Darul Aman.
7.  The learned APG argued that under Section 491, Cr.P.C. this Court need not to embark upon an inquiry to the veracity or genuineness of Nikahnama or marriage or divorce, but he concedes that being a sui juris, Mst. Shaista may be set at liberty and she can not be detained or forced to live in Darul Aman against her wishes.
8.  Heard the arguments. This matter was fixed in Court on 23.12.2011, when the alleged detenue was brought in Court by the Respondents No. 2 & 3. On her appearance in Court, she clearly stated that no divorce has ever been communicated to her and she had shown her willingness to live in Darul Aman till final disposal of this application as according to her, she was not happy with the attitude and conduct of her brothers, therefore, on her request Additional Registrar of this Court was directed to make proper arrangement for her lodgment in the Darul Aman Sukkur with directions to Darul Aman administration to produce her in Court on the next date.
9.  Under Section 491, Cr.P.C. this Court has two fold jurisdiction. First to deal with person within its jurisdiction according to law and secondly to set the detenue at liberty if found to be illegally or improperly detained. Provisions of Section 491, Cr.P.C. have been envisaged to deal with person detained illegally or improperly either in public or private custody and to give directions to set him at liberty if the detention is found to be illegal or improper. As a general rule it can be said that any detention will be illegal unless it could be shown to be in accordance with law. A woman who is sui juris cannot be kept in Darul Aman  when  she  no  longer  wants  to stay there. When this matter was finally heard on 10.5.2012, Mst. Shaista was produced in the Court by Dar-ul-Aman administration and she clearly stated neither she wants to go back with her brothers nor she wants to live in Darul Aman but she requested that she may be set at liberty forthwith.
10.  If the Court finds that the person brought before it was not being illegally or improperly confined or detained then if the person is a minor, the Court 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 561-A, Cr.P.C., as it can not be said that allowing a person freedom of movement is an abuse of the process of the Court. Reference can be made to PLD 1972 SC 06 (Muhammad Rafique Muhammad Ghafoor). In another case reported in 1987 SCMR 906 (Muhammad v. Mst. Maryam Bibi), it was held that a girl being sui juris and her statement having been recorded voluntarily and the Court was justified to pay regard to her wishes and to let her go. In another judgment reported in 1973 SCMR 189 (Sardara v. Khushi Muhammad), honorable Supreme Court held that factum of marriage as also its validity questionable. Court may send major detenue wife at liberty but cannot restore status quo ante against wishes of detenue. It was further observed that if the petitioner is real husband, he could approach the Court for restitution of conjugal rights. In another judgment reported in 1973 SCMR 577 (Mst. Sahi Bi v. Khalid Hussain), it was held that under Muhammadan Law, sui juris women cannot be forced to live with her husband against her wishes. Quranic injunction is against it. According to Muhammadan Law if there is disagreement between husband and wife, wife is entitled to live separately from her husband. It was further observed that it was open to her husband to file suit for restitution of conjugal rights against detenue for redress of her grievance.
11.  So far as proceedings under Section 491, Cr.P.C. are concerned, only course open to this Court in the case of unwillingness of the detenue to live with her brother or in Darul Aman is to set her at liberty. Even in the latest case of Rinkle Kumari (supra), honorable Supreme Court held that they are sui juris and fully in position to decide about their future and the matter was disposed of with directions to the DIG, Sukkur to take said ladies in safe custody to places of their own choice and wherever they want to stay being sui juris. DIG was also directed to provide protection to them in terms of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, as it is the duty of State to provide them protection.
12. Sui juris is a Latin phrase that literally means "of ones own laws". In civil law the phrase sui juris indicates legal competence, the capacity to manage one's own affairs. It also indicates an entity that is capable of suing and or being sued in a legal proceeding in its own name without the need of an ad litem. It also relates to customary, unique rights afforded to an individual unequal and exceptional, per feudal prerogative legal structures (that were additionally in personam and so legally reciprocal at the scale of personhood, effectively accruing constituencies polity by individuation) www.wikipedia.org. According to Black's Law Dictionary. Sixth edition? Sui Juris, means a person of his own right, possessing full social and civil rights, not under any legal disability, or the power of another, or guardianship. Having capacity to manage one's own affairs, nor under legal disability to act for one's self.
13.  A major Muslim woman like a major Muslim such is sui juris and entitled to the same rights and liberties. There is no law that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability. Article 9 of the Constitution guarantees that no person can be deprived of life or liberty except in accordance with law, as such a major Muslim girl cannot be detained in Dar-ul-Aman without her consent.
14.  After considering the pros and cons, I have reached to an unequivocal and explicit conclusion that bone of contention whether the divorce has validated and or became effective or not, this question cannot be decided by this Court under habeas corpus petition which legal position has been conceded almost by all the learned counsel representing the parties and the learned APG. So far as the further lodgment of the Mst. Shaista in Darul Aman is concerned, let me clarify that she was on her own accord and freewill temporarily lodged in the Darul Aman as she complained against the maltreatment, attitude and unreasonable conduct of her brothers, but now she has categorically stated in the Court that being a sui juris and a matured lady she can look after her person and her own affairs and she does not want to go back to the Darul Aman nor with her brothers who kept her under unlawful confinement/detention but she requested that she may be set at liberty forthwith to live her own life.
15.  As a result of above discussion, this criminal miscellaneous application is disposed of in view of the prayer clause (a) of the application. Consequently, the Mst. Shaista being sui juris is set at liberty. DIG Sukkur is directed to provide her protection and the Respondent Nos. 2 and 3 are directed not to cause any harassment to Ms. Shaista. Office is directed to transmit copy of this order to DIG Sukkur for compliance.

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