The August Supreme Court of Pakistan has already held that the disputed question of marriage cannot be decided in any proceedings under section 491 Cr.P.C. In the case of Hafiz ABDUL WAHEED Versus Mrs. ASMA JEHANGIR and another{P L D 2004 Supreme Court 219), the August Supreme Court of Pakistan was pleased to observe as under:-
“There is force in the submission of the learned Attorney-General that the High Court has needlessly blown up the issue. The sole controversy before the High Court in Criminal Appeal No.98 of 1997 was whether Mst. SaimaWaheed daughter of the appellant was being wrongfully confined in the place known as `Dastak', run by respondent No. 1. On record, an application filed by Mst. SaimaWaheed to the effect that she was living in 'Dastak' of her free-will is available, She also appeared before learned Judge (Justice Malik Muhammad Qayyum, as he then was) on 18-4-1996 where again she asserted that she was living in 'Dastak' and would like to go there. Learned Judge, however, declined to accede to this request on the ground that another learned Judge (Justice Ihsan-ul-Haq Chaudhry, as he then was) had in another habeas corpus petition directed her recovery from 'Dastak' and her lodging in Dar-ul-Aman. Justice Malik Muhammad Qayyum notwithstanding her protest and apprehension of serious danger to her life, directed that order of Justice Ihsan-ul-Haq Chaudhry be complied with. He, however, directed Senior Superintendent of Police, Lahore to personally ensure safety of the detenue while in `Dar-ul-Aman'. The learned Judges of the High 12 Court, with due deference, could have and ought to have avoided the needless controversy as regards the validity of the marriage which subject in any case falls within the exclusive domain of Family Court established under the West Pakistan Family Courts (Act XXXV), 1964. 24. The proceedings in the High Court originated from the petition of the appellant under section 491 of the Code of Criminal Procedure, 1898, praying: "For the recovery and release of Mst. SaimaWhaeed, the detenue from illegal detention/custody of the respondents." In the facts and circumstances of the case particularly in view of the stance of the alleged detenue that she was voluntarily putting up at 'Dastak', the High Court clearly transgressed its jurisdiction and by formulating the question of validity of marriage and then answering the same, assumed to itself the exclusive jurisdiction of the Family Court in such matter. The point need not be laboured further and may be concluded by observing that it was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of Injunctions, of Islam, in proceedings under section 491, Cr.P.C."
Part of Judgment
IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI.
Writ Petition-Criminal proceedings-Detention/habeas
1421-20
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