JUDGMENT V.D. Bhargava, J. - This is a petition for a writ of Habeas Corpus under Article 226 of the Constitution read with Section 491 Code of Criminal Procedure filed by one Mahesh Prasad, who alleges himself to be the husband of Smt. Kaniz Fatima alias Sheila. She is the daughter of Sri Ikram Husain, Advocate, resident of Muhalla Chak, Allahabad. 2. According to the Petitioner, the Petitioner developed intimacy with Smt. Kaniz Fatima, who was a major, some time in October 1959 and thereafter, they continued to meet each other and got themselves married. 3. Kaniz Fatima was a Muslim, while the Petitioner was a Hindu and there were many hurdles in their way and marriage with the consent of their respective parents was impossible. Since Kaniz Fatima was genuinely loving the Petitioner, they married themselves secrectly. Smt. Kaniz Fatima embraced Hinduism prior to her marriage and subsequently, she was married, to the Petitioner according to the Vedic rites on 26-12-1959. This marriage was without the knowledge of the parents of both the parties. The Petitioner used to visit her and she used to visit him though clandestinely. Smt. Kaniz Fatima became pregnant in early June 1960 and as it would be known to everybody, she decided to leave her father's home and came to live with the Petitioner in Gujrati Muhalla, Allahabad, some time in the middle of June 1960. 4. Sri Ikram Husain, the father of the girl, appears to have lodged a report against the Petitioner under Sections 363, 566, 368 and 376, IPC at the police station Kotwali, Allahabad. Smt Kaniz Fatima, his wife according to the Petitioner, was taken away from him on 23-6-60 forcibly, in spite of the pleadings and protests of the Petitioner as well as his wife. The girl was sent for medical examination to the Dufferin Hospital and she was declared to be about 19 years of age. According to the Petitioner, she was 23 years of age and according to the Municipal Board records, she was 21 years of age. The Petitioner was arrested and put in jail. Later on, on 15-7-60 he was released on bail and then he enquired about his wife. He came to know from the station officer, Kotwali that she had been delivered to Sri Ikram Husain, Respondent No 2. The Petitioner was arrested and put in jail. Later on, on 15-7-60 he was released on bail and then he enquired about his wife. He came to know from the station officer, Kotwali that she had been delivered to Sri Ikram Husain, Respondent No 2. The Petitioner has, therefore, made this application against the station officer, Kotwali, Allahabad and Sri Ikram Husain, that since his wife Smt. Kaniz Fatima is major and she is being unlawfully detained, she be produced in Court and be released. 5. Notices were issued on 29-7-60 to both t the opposite parties to produce Smt. Kaniz Fatima in Court. In return of the notice Sri Surya Pal Shukla, Sub-Inspector, Kotwali filed a counter affidavit, as also Sri Husain. According to the affidavit of Sri Surya Pal Shukla, on 21-6-60 at about 1 p.m. a report was lodged by Sri Ikram Husain that his minor girl Kaniz Fatima alias Sheila, aged about 15 years had disappeared. On enquiry, the deponent came to know that, it was Mahesh Prasad, who was an ex operator of the Mansarover Cinema, who had kidnapped Kaniz Fatima and was concealing her in the house of one Sudama in Khushal Parbat. The deponent, along with some constables and members of the Flying Squad, went to the house of Sudama and recovered Kaniz Fatima on 23 6 60 at about 9-30 p.m. Mahesh Prasad and Sudama were also arrested in connection with the investigation under Sections 363, 366, 368 and 376 IPC and a case was registered. Kaniz Fatima was examined and she made a statement to the effect that she was a student of the Hamidia Girls Intermediate College and she had appeared at the High School Examination of 1960 and had failed. Owing to that she had a shock and she -left her house and wanted to go to her aunt Smt. Sardar Begam, who is married to Sri Ziarat Husain and lives in Rani Mandi. As she had always been observing purdah, she did not know how to reach Ranimandi. She was picked up by Mahesh Prasad, who said that he would reach her to Rani Mandi, but instead, he took her to Gujrati Muhalla from where she has been recovered. She said that she had been kept there against her wishes. 6. As she had always been observing purdah, she did not know how to reach Ranimandi. She was picked up by Mahesh Prasad, who said that he would reach her to Rani Mandi, but instead, he took her to Gujrati Muhalla from where she has been recovered. She said that she had been kept there against her wishes. 6. On 24-6-60 Smt. Kaniz Fatima had been delivered to Mohammad Ikram Husain, her father, who had expressed a desire that Kaniz Fatima alias Sheila be delivered in his custody. Sri Ikram Husain also gave an undertaking that he would produce Kaniz Fatima whenever she was required in the criminal case pending in the court. 7. Mohammad Ikram Husain in his affidavit denied the statement of the Petitioner that Kaniz Fatima was the wife of the Petitioner and asserted that no marriage had ever taken place between the Petitioner and Kaniz Fatima. It should be noted that this paragraph has been sworn on personal knowledge. If a marriage had taken place between the Petitioner and Kaniz Fatima as alleged by the Petitioner, without the knowledge of the father, it would not be within his knowledge. He could swear to that fact after ascertaining from Kaniz Fatima. Similarly in paragraph 5 of the counter affidavit, the allegation that Kaniz Fatima had embraced Hinduism, could not be denied on personal knowledge. 8. It was urged that the Petitioner is a married Hindu, having a living wife. Therefore, he could not legally take a second wife. The name of his living wife is Ram Rati, The affidavit of one Ram Nath, resident of Ghazipur has been filed in order to show that the Petitioner and Smt. Ram Rati had been married and that Kam Rati was still alive. It was contended that Kaniz Fatima had appeared in the High School Examination of 1960 and the results were announced on 17.6.60. As a result of failure in the examination, she was found missing on 20.6.60, when Ikram Husain had left for his village. When he came to know of the disappearance he made a search among the relations and at the railway station and when she was not found a report was lodged at the Kotwali. 9. Neither of the Respondents had produced the girl. So far as Respondent No 1 is concerned, he says that the girl had been delivered to her father Ikram Husain. 9. Neither of the Respondents had produced the girl. So far as Respondent No 1 is concerned, he says that the girl had been delivered to her father Ikram Husain. Mohammad Ikram Husain in paragraph 15 of his counter affidavit has alleged that after the unfortunate abduction Kaniz Fatima felt highly shocked, because of the scandal, which she had brought upon herself and her relations, who belonged to a respectable family of Allahabad. Seeing her deteriorating condition and in order to bring about a change in her condition, her mother sent Kaniz Fatima to her mother's) sister in Muhalla Sabzimandi, Allahabad and left her there. She was there for some time. But there happened a further tragedy. Owing to the great shock of infamy, which weighed upon her mind, she disappeared from the house of her aunt. He was, therefore, unable to produce the girl in Court. The deponent further asserted that he did not know the whereabouts of the girl at all. It was contended that Kaniz Fatima was a minor and therefore, there was no case for habeas corpus. In order to prove her age a copy of the scholars register has been produced. According to that, the date of birth of the girl is June 25, 1943 so that so she would be below 18 years of age in June 1960. 10. In the rejoinder affidavit the Petitioner has re-asserted the same facts which he had alleged in the original affidavit. About his marriage with Ram Rati, he has explained that he had been married when he was a boy about 10-12 years of age, that Ram Rati had never come to him and has actually married someone else and that there had been a divorce between them according to the custom. The deponent probably is a Kori or Kachhi by caste and among them there can be a divorce or Chhoot. 11. So far as Kaniz Fatima being the daughter of Sri Ikram Husain is concerned, there cannot be any doubt. Apart from this admitted fact most of the other facts are controversial. They are not admitted by the other party. But for the purpose of a habeas corpus petition, it is not necessary to determine those facts. On behalf of the Respondent it has been urged that since Kaniz Fatima is now untraceable it is impossible to produce her. Apart from this admitted fact most of the other facts are controversial. They are not admitted by the other party. But for the purpose of a habeas corpus petition, it is not necessary to determine those facts. On behalf of the Respondent it has been urged that since Kaniz Fatima is now untraceable it is impossible to produce her. On the other hand it has been contended by the Petitioner that the girl had been removed by Respondent No. 2 to some of his relations or friends and she is being unlawfully detained. The question that arises is, therefore, whether if there is, an allegation by the Respondent that the person detained is not traceable, can this Court merely on this statement discharge the writ. The case, in our opinion raises questions of extreme importance and to some extent of difficulty. 12. Learned Counsel for Ikram Husain, inter alia, contended (1) that since Kaniz Fatima is a minor and the father is the lawful guardian and she could not of her own consent contract a marriage or change her religion, therefore, a writ of habeas corpus is not proper; (2) that the Petitioner being already a married Hindu and having a living wife, under the provisions of the Hindu Marriage Act XXV of 1955, the so-called marriage could not legally be contracted. Reliance has been placed particularly by learned Counsel on Section 5(11) which provides that marriage may be solemnised between two Hindus when neither party has an spouse living at the time of the marriage. In case the bride is a minor the consent u/s 6 of the same Act is to be obtained of the father. By virtue of Section II any marriage solemnised after the commencement of the Act is to be null and void; (3) that the Petitioner is not entitled to any writ because he has made a false statement about his age and has been guilty of suppression of facts; (4) that a writ of habeas corpus is not a proper remedy, because there are several questions of fact which have to be decided and the Court in its summary proceedings cannot enter in those matters; (5) that since now it is impossible for the Respondent to produce Kaniz Fatima the writ should be discharged. 13. 13. We do not propose to deal with the questions of fact that arise in this case, except about the majority of Kaniz Fatima, as it is not within the writ jurisdiction of this Court to decide them when there is a controversy. According to the medical examination at the Dufferin Hospital, she was aged about 19 years and therefore, she is major and if she is major, then in that case, there would be no question of the father being the guardian. She can go anywhere she likes. So far as this question of fact of minority is concerned, that is one of the matters which has got to be decided in order to arrive at a correct, conclusion whether any writ should issue or not. If the fact of minority had been admitted by both the parties, then possibly no writ could issue. Therefore, we are not inclined to dismiss the writ merely on the ground that there is an unadmitted allegation by the Respondent that she is a minor. 14. The second point raised by the Respondent is that the Petitioner has a living wife. That is a matter which is not at all relevant for the purpose of deciding this writ petition. It may be that the allegation of the Petitioner is true that his first wife has been divorced and has been married to someone else or it may be that he has still a living wife. A writ of habeas corpus is for the purpose of production of the body of a certain person, who has been kept in confinement against his or her wishes and this jurisdiction is not meant for deciding legality or illegality of the marriage. If Kaniz Fatima is a major, she is entitled to give her consent before the Court and if the Court comes to the conclusion that she has been illegally detained against her wishes, she will be set at liberty. It is open to her to go wherever she likes and it is open to the parties, if the marriage is not a valid one, to have it declared in proper forum. On that ground also the writ petition cannot be dismissed. 15. It is open to her to go wherever she likes and it is open to the parties, if the marriage is not a valid one, to have it declared in proper forum. On that ground also the writ petition cannot be dismissed. 15. The false statement that has been pointed out to us, is, that in the affidavit that was filed in the Court of the Magistrate the Petitioner had given out his age as 30, while in this Court he has given his age as 23, that is a false statement. It was further contended on behalf of the Respondent that the Petitioner has also been guilty of suppression of the fact of his previous marriage. It was, therefore, argued that since writ jurisdiction is a discretionary jurisdiction and if the Petitioner has not come with clean hands, he should not be allowed to be heard. In our opinion the mistake in age does not seem to be intetional. It does not in any way affect the merits of the case. That appears to be an accidental mistake. So far as suppression of the fact of the Petitioner's previous marriage with Smt. Ram Rati is concerned, we do not think that that also was relevant for the purpose of a writ in a habeas corpus petition. The question of legality or illegality is not to be decided at this stage and therefore, that fact was not such a fact which would disentitle the Petitioner to any remedy from this Court, particularly if the allegation of the Petitioner about the divorce and Ram Rati marrying someone case is true. 16. It was argued on behalf of the Respondent that since in this case there are questions of legality of the marriage, about minority or majority of Kaniz Fatima and other allied questions of fact therefore, habeas corpus is not the proper remedy. We have already expressed our opinion that in this case no question of fact is to be decided. It is only the body of Kaniz Fatima which is to be produced and the Court would, thereafter ascertain if she is major. The questions of fact would be decided in a separate forum. It often happens that when an application for habeas corpus is made both the parties claim the person in different capacities, but the Court usually does not decide questions of fact. 17. The questions of fact would be decided in a separate forum. It often happens that when an application for habeas corpus is made both the parties claim the person in different capacities, but the Court usually does not decide questions of fact. 17. We may at this stage observe that the medical examination that had taken place was also a partial medical examination. There had already been a case Under Sections 363, 366, 368 and 376, IPC against the Petitioner. When the girl had been sent for medical examination, there should have been a report also whether there had been any sexual inter-course or not, whether the girl was pregnant or not, whether she had been accustomed to sexual intercourse or not. This might have thrown more light. But we find that the medical examination at that stage was only confined to age, for reasons best known to the authorities who had sent her for medical examination. 18. We have already mentioned that so far as denial of her marriage with the Petitioner and her conversion to Hinduism are concerned, that has been wrongly sworn to be true on personal knowledge. If the marriage, as we have said, had taken place without the knowledge of the father, he would have had no personal knowledge about it. Para 15 of the counter affidavit has also been verified on personal knowledge. It is alleged that owing to the great shock of infamy and humiliation that was weighing on the mind 4 of Kaniz Fatima, she disappeared from her aunt's house. It is surprising how this state of mind at the time of disappearance is to the personal knowledge of the deponent unless the deponent knows where she had disappeared, vv hen she had been left at the house of her aunt in Sabzi Mandi before disappearance there does not appear to have been any contact at rhe time of disappearance with the father, who could say on personal knowledge about the condition of the mind of Kaniz Fatima. That again appears to have been falsely sworn to be from personal knowledge. 19. The main question that arises is that the Respondent has said that it is impossible for him to produce the girl and no writ be issued and the petition be discharged. It is for the Respondent to satisfy the Court that he is really unable to produce the girl. 19. The main question that arises is that the Respondent has said that it is impossible for him to produce the girl and no writ be issued and the petition be discharged. It is for the Respondent to satisfy the Court that he is really unable to produce the girl. Merely his statement that the girl has run away, would not be enough. In cases where counterfeited release takes place, it has been observed in Gossage's case Thamas John Barnardo v. Mary Ford 1892 LR (AC) 326 at page 333 by Lord Halsbury L.C. that Of course, where a counterfeited release has taken place and a pretended ignorance of the place of custody or of the identity of the custodian is insisted on, a Court may and ought to examine into the facts by the writ of habeas corpus because the detention is in fact being continued by someone who is really the agent of the original wrong-doer to continue and persist in the unlawful detention. 20. In case we were satisfied that the girl had left of her own accord, we may have discharged the writ. But there are circumstances in this case from which we gather that Respondent No. 2 is not as innocent as he claims to be. We may quote the observation of Lord Chief Justice in the case of Re Matthews 12 Ir. Com. LR 233 which has been quoted in the Queen v. Barnardo. 24 QBD 283 at page 299. It is to the following effect: I think that, where a child has been illegally handed over shortly before the issue of the writ, under circumstances of great suspicion and which give reason to believe that it was done for the purpose of avoiding the exigence of a writ about to be issued, an exception arises to the general principles I have mentioned. 21. Thereafter the reason is given as follows: It is contrary to good sense, because a person would then only have to break the law and say, 'You cannot put the law in force against me because I have broken it; a man would only have to take care beforehand to prevent himself from being able to obey a writ, if he thought he was coming to tell the Court so and they could not issue the writ because the person had already prevented his being able to return it. He would be able to laugh in the face of the Court and to reduce the power and jurisdiction of the Court to almost nothing. 22. Fry, 1 J. in the above case had remarked: If people conduct their business in such a manner they must not be surprised if a Court views their conduct with suspicion. I think, therefore, that the circumstances of this case were such as to have made it incumbent on the Appellant to repel the inference to which the circumstances themselves naturally give rise, that this child was handed over to Mr. Norton for the purpose of avoiding process that was expected to be issued. 23. In the present case before we deal with the other observations of their Lordships of the Court of Appeal, we might say that circumstances are such which create grave doubts and suspicion in our mind that this disappearance has been deliberate for the purpose of avoiding production of Kaniz Fatima in Court. 24. The facts of the case show that Kaniz Fatima had disappeared on June 20, 1960 and a report of her disappearance was (sic) on June 21, 1960. It is to be noted that the investigation was on the basis of this report Under Sections 363, 366, 368 and 376 IPC It appears that at that time there was a suspicion that she had been taken away by somebody with the objects mentioned in those sections. On June 24, 1900 possession was taken by the police from the house supposed to be occupied by Mahesh Prasad. She was medically examined and thereafter she was delivered to ner father Mohd. Ikram Husain, by the police on a purported statement of Kaniz Fatima and on a definite undertaking by Ikram Husain that she would be produced whenever required in the case pending Under Sections 363, 366 etc. IPC. It was, therefore, the bounden duty of Mohd. Ikram Husain to keep a watch over the girl. It is alleged that she had been sent to her aunt in Sabzi Mandi. The date of sending the girl and her disappearance actually had not been mentioned in the counter affidavit originally filed. We gave time to the Respondent to file a proper affidavit explaining the circumstances in which the girl is said to have disappeared. 25. A supplementary counter affidavit was filed by Mohd. The date of sending the girl and her disappearance actually had not been mentioned in the counter affidavit originally filed. We gave time to the Respondent to file a proper affidavit explaining the circumstances in which the girl is said to have disappeared. 25. A supplementary counter affidavit was filed by Mohd. Ikram Husain accompanied by an affidavit of Syed Iqtidar Husain who is the brother-in-law (wife's brother) of Ikram Husain. Ikram Husain's wife's sister Smt. Shabbiri Begam alias Shammi Bibi lives in house No. 51, Sabzi Mandi, Allahabad and in a portion of her house lives his brother-in-law Syed Iqtidar Husain. The house is about three furlongs from 'he deponent's house. It has been stated that Kaniz Fatima was very much dejected and her mother observing this condition of the girl took her to the house of her (wife's) sister on the 8th July 1960 at about 3 p.m. by a rickshaw and left her there. Kaniz Fatima stayed there till the 19th July and during this time the deponent went to see her at least every day and they tried to dispel her dejection. Her stay at Sabzi Mandi is said to have been as good as staying with the deponent. But in the early morning of July 20, 1960 when the deponent's sister in law woke up, she found the outer door of the house unchained from inside and found that Kaniz Fatima was not in the house. A search was made but she was not found. At about 5-30 in the morning she along with her brother Iqtidar Husain came to Respondent No. 2 and enquired whether Kaniz Fatima had come to his house and also informed about the disappearance of her. It is alleged that this caused great shock to the Respondent and he lost the balance of his mind and felt disgusted with her lot. He got a search made at three or four places and the girl has not been found in spite of strenuous search. Thereafter he felt frustrated and actually lost all interest in Kaniz Fatima. 26. It is admitted that no police report of this disappearance was lodged. No information was given by Ikram Husain to the police of Kaniz Fatima's disappearance and that he would not be in a position to produce her in Court. Thereafter he felt frustrated and actually lost all interest in Kaniz Fatima. 26. It is admitted that no police report of this disappearance was lodged. No information was given by Ikram Husain to the police of Kaniz Fatima's disappearance and that he would not be in a position to produce her in Court. It is significant that this time Kaniz Fatima is alleged to have disappeared of her own accord without any intimation to any relation, yet Mohammad Ikram Husain never suspected the Petitioner and did not make any enquiry or search at his house or ask the police to make any search at the Petitioner's house though he alleges to have made searches elsewhere. That is not the conduct of an honest man. When the girl had been lost there was no question of infamy at that stage. He had already lodged a report and a case Under Sections 363, 366, 368 and 376, IPC had already been started involving her and therefore, there seems to be no reasonable excuse for not informing the police at that stage. 27. According to the Respondent Ikram Husain, Kaniz Fatima was a minor. It was so, we cannot believe that the father would give up his interest in her when she was not provided with any money. She according to her alleged statement, had always been in purdah (Burqa) and only once attempted to go to Rani Mandi to her aunt, when she lost her way and was taken away by the Petitioner. Will such a girl ever have the courage to leave the home without the help or connivance of some one, who in the present case could be none else than the father? 28. It is, therefore, clear that the girl has been made to disappear in order to avoid production of the girl either before the Magistrate or in this Court. 29. It was contended that at the time the girl is alleged to have disappeared, there had been no application for a writ of habeas corpus filed in this Court and therefore, it cannot be said that that was in order to avoid to return to the writ. The writ application was filed on July 28, 1960 and the girl had disappeared on July 20, 1960, about a week before. In our opinion that makes no difference. The writ application was filed on July 28, 1960 and the girl had disappeared on July 20, 1960, about a week before. In our opinion that makes no difference. It has also been observed in the case of The Queen v. Barnardo 24 QBD 283 at page 299 that: Matters to which I will further refer create in my mind a great suspicion as to the circumstances under which the child was made over. I think that, where a child has been illegally handed over shortly before the issue of the writ, under circumstances pf great suspicion and which give reason to believe that it was done for the purpose of avoiding the exigence of a writ about to be issued, an exception arises to the general principles I have mentioned. 30. There cannot be the least doubt that if it has been established to the satisfaction of the Court that production of the person is impossible, then a writ of habeas corpus would not issue. But if the Court entertains doubt and suspicion about the manner in which the person has been removed then we do not think that the Respondent can escape the liability. In 24 QBD 283 the Master of the Rolls observed at page 235: ...It seems quite clear that the result of it is that, if the writ goes in this case and the Appellant can only put forward by way of return to it what he has put forward on this appeal, such a return would be bad; and therefore that he would have to make further and fuller efforts to get back the child; and if he did not produce thee child, there would be a disobedience to the writ and it would be necessary then to consider whether any and if so what further consequences ought to follow. 31. In Reg v. Barnardo, Tye's Case, Lindley L.J. said: As matter of law, I think that it is no valid excuse for not producing a child or other person in obedience to a writ of habeas corpus to state inability to obey, if such inability is the result of the previous illegal conduct of the person to whom the writ is addressed. 32. His Lordship further added : (p. 316). 32. His Lordship further added : (p. 316). Persons who illegally put a child out of their power do so at their peril and if they are ordered to produce the child, no excuse founded on their own inability to comply with the order will be held a sufficient answer to the writ. 33. In the present case the girl has been removed, according to us, With the knowledge and connivance of Respondent No. 2 and therefore, his answer to the writ that he cannot produce the girl is of no avail. 34. Before taking any final action to enforce the writ, we would give another opportunity to Ikram Husain to produce Kaniz Fatima within a period of ten days from today. In case he fails to make a proper return to the writ he would be deemed to have disobeyed the writ and would be liable for the consequences.