JUDGMENT Brijesh Kumar, J. - We, by our order dated January 28, 1985, had pronounced the operative part of the order allowing the writ petition directing the opposite party No. 2 to set Neelam at liberty forthwith and that she would be free to go to any place of her choice. The reasons for the above order were to be recorded later. We now proceed to record our reasons for the orders passed on 2811985. 2. The present writ petition has been filed by Neelam, through Ram Kewal. A prayer for issue of writ of Habeas Corpus has been made to direct the Superintendent, Protective Home, Lucknow, to produce the person of the petitioner Neelam and for setting her at liberty. According to petitioner, she was confined in the Protective Home, Lucknow, against her wishes. In the writ petition the case of the petitioner is that she had married Ram Kewal and the marriage agreement was later on registered on 289 1984 before the SubRegistrar, Allahabad. It has also been asserted that the age of the petitioner is 19 years and thus she is major. Since Ram Kewal is Kahar by caste and the petitioner is a Brahmin, the father of the petitioner Chhedi Lal, opposite party No. 1, took ill of the said marriage and lodged a F.I.R. against Ram Kewal under Sections 363/366 IPC. The petitioner had gone away with Ram Kewai outside Bahraich and lived in Allahabad and Barabanki. On her return to Bahraich she was taken into custody by the local police as a case under Sections 363/366 I.P.C. was registered against Ram Kewal. 3. In support of her case that she is aged 19 years, she has filed a provisional certificate issued by Kaushalendra Vikram Inter College, Payagpur, Bahraich, certifying that she had appeared in High School Examination in the year 1980 and had passed in the Second Division and according to the records of the college her date of birth is 771965. A medical certificate given by the Chief Medical Officer, Barabanki, dated 8101984 has also been filed in original, according to which the age of the petitioner was found to be about 19 years. Alongwith the supplementary affidavit dated 1121984 an agreement of marriage between Neelam and Ram Kewal dated 2891984 registered before the SubRegistrar at Allahabad has been filed as Annexure B2. 4. The petitioner was presented before the Magistrate on 7111984. Alongwith the supplementary affidavit dated 1121984 an agreement of marriage between Neelam and Ram Kewal dated 2891984 registered before the SubRegistrar at Allahabad has been filed as Annexure B2. 4. The petitioner was presented before the Magistrate on 7111984. On that her statement was recorded by the Magistrate, under Section 164 CrP.C. A certified copy of her statement has been filed as Annexure Bl with the supplementary affidavit dated 1121984. In her statement before the Magistrate she stated that she was married to Ram Kewal and wanted to live with him. The learned Magistrate passed an order dated 91184, a true copy of which has been filed as Annexure Sl to the supplementary affidavit dated December 20, 1984. The learned Magistrate has considered the statement of the petitioner and recorded a finding that the petitioner is major and since Ram Kewal and his parents were not available at home, it was safer that the petitioner be kept at Nari Niketan, Lucknow, so long as Ram Kewal was not bailed out. It was also indicated in the order that the petitioner had refused to go with her parents. In the above circumstances the petitioner was kept in the Nari Niketan (Protective Home), Prag Narain Road, Lucknow. 5. The opposite party No. 1, namely the father of the petitioner Neel ,m has filed a counter affidavit. In this counter affidavit it has been asserted that Ram Kewal is already married and has a child from his wife Smt. Jaikora. The child and the wife of Ram Kewal, Smt. Jaikora, are still alive. It has been pleaded that since Ram Kewal has his spouse living, he could not legally perform his second marriage and if that has been done, it is a void marriage. It has also been stated in the counter affidavit that Chhedi Lal has filed a F.I.R. against Ram Kewal under Sections 363/366 IPC, during investigation of that case Neelam was recovered and was produced before the magistrate and after considering all the facts and circumstances the learned magistrate legally ordered for keeping the petitioner in Nari Niketan, Luck now. According to opposite party No. 1, the order of the learned Magistrate s within his jurisdiction and is under the provisions of the Code of Criminal Procedure. According to opposite party No. 1, the order of the learned Magistrate s within his jurisdiction and is under the provisions of the Code of Criminal Procedure. It has not been specifically denied in the counter affidavit that le petitioner Neelam is major nor it has been stated that the documents annexed by her regarding her age as 19 years are incorrect. 6. Since this fact was brought to the notice of the Court that Ram Kewal was already married to one Smt. Jaikora whom, according to Ram Kewal, he had divorced by custom of 'ChhuttaChhutti', notice was issued to Smt. Jaikora also. Smt. Jaikora filed an affidavit stating therein that no divorce or chhuttachhutti had taken place between her and Ram Kewal and she still continues to be his wife. 7. The petitioner was summoned from the Protective Home. She was produced before us and her statement was recorded on January 25, 1985. In her statement she has stated that she has completed 19 years of age and that she was married to Ram Kewal and wanted to live with him. She has also stated that she had given the same statement before the learned Magistrate but the learned Magistrate directed her to be lodged in the Protective Home. She stated that she was being unnecessarily detained in the Protective Home. 8. We have heard learned counsels for the parties. In our opinion the main question to be decided is whether the petitioner is major and whether she could be detained or could be kept in the Protective Home against her wishes. 9. So far as the age of petitioner is concerned we have no doubt that she is aged about 19 years and is major. This fact, besides her statement, is amply borne out from the certificate issued by the College from where the petitioner did her High School showing her date of birth as 771965. The report of the Chief Medical Officer also supports the case of the petitioner about her age. The above facts have not been denied in the counter affidavit filed by the opposite party No. 1 namely, the father of the petitioner. Being major, she is free to reside at any place of her choice. She cannot be compelled to reside in the Protective Home. The above facts have not been denied in the counter affidavit filed by the opposite party No. 1 namely, the father of the petitioner. Being major, she is free to reside at any place of her choice. She cannot be compelled to reside in the Protective Home. In our opinion, in view of the above facts; it is not necessary to enter into the controversy whether the petitioner was married to Ram Kewal or not and if so whether the marriage was legal or void. If the petitioner was confined at a place against her wishes, she was only to be set at liberty and this is the prayer which has been made in the petition. There is no prayer for handing over her custody to Ram Kewal, So far it does not appear that the petitioner is accused of any offence or any case is registered against her. From the facts on the record it is clear that she was recovered during investigation of the case registered against Ram Kewal under Sections 363/366 IPC. 10. Learned counsel for the opposite parties has argued that the order of the Magistrate is fully covered by the provisions of Section 97 of the Code of Criminal Procedure. We are afraid, this argument is not borne out from the record of the ease. No one had ever applied for issue of search warrant in respect of Neelam nor any such search warrant was issued. The validity and correctness of the order passed by the learned Magistrate has not been challenged by opposite party No. 1. On the other hand it has been stated in the counteraffidavit that the order of the learned Magistrate is legal and within his jurisdiction. A perusal of the order of the learned Magistrate shows that he had ordered that so long Ram Kewal was not available or was not released on bail it would be appropriate or safer for Neelam to be lodged in Nari Niketan, Lucknow. This order never meant that Neelam was to be kept in the Nari Niketan for all time to come or for an indefinitely long period. In our opinion the petitioner could be kept in the Nari Niketan so long she had not objected to her being kept there for her own safety or otherwise. If and when she demands herself to be set at liberty, the relief cannot be refused. In our opinion the petitioner could be kept in the Nari Niketan so long she had not objected to her being kept there for her own safety or otherwise. If and when she demands herself to be set at liberty, the relief cannot be refused. The opposite party No. 1, the father of the petitioner cannot contend that the petitioner should be kept in the Protective Home against her wishes. 11. It has further been submitted on behalf of opposite party No. 1 that the petition for Habeas Corpus through Ram Kewal is not maintainable and m any case it should not be entertained as he is accused in the case under Sections 363/366 I.P.C. In relation to Neelam herself, it is also averred in the counteraffidavit that in no circumstances Neelam Sharma could be given in the custody of Ram Kewal. At the very outset we may point out that there is no prayer in the petition for giving custody of the petitioner to Ram Kewal. The only prayer is for setting her at liberty. In support of his contention that the present petition should not be entertained as it has been moved through Ram Kewal, reliance has been placed on a reported case Mohd. Ikram Hussain v. The State of U.P. and others, ( AIR 1964 SC 1625 ). Paragraph 13 of the abovenoted judgment has been placed before us which reads as follows : (13) Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of Habeas Corpus is probably never used by a husband to regain his wife and the alternative remedy under Section 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a Civil Suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. 12. The facts of the abovenoted case are entirely different and distinguishable. The age of the girl was stated to be 15 or 16 years by her father as well as the girl herself. The finding recorded by the High Court that she was major i.e. over 18 years of age was not accepted by the Supreme Court. A case under Sections 363/366/368/376 IPC was registered against the petitioner. On being recovered by the police she was given in the custody of her father. Her custody was demanded by the petitioner, on the ground of alleged marriage, from the father who was otherwise her lawful guardian. The allegation of marriage was denied. The girl had stated that she had lost her way while going to her aunt's house. The petitioner alongwith another person met her in the way and offered her to show the way but fraudulently took her to some other house and criminally assaulted her. In these circumstances the Hon'ble Supreme Court was pleased to observe that the High Court should have satisfied itself about the factum of marriage and the age of the girl with more circumspection. It was also observed that it was inappropriate to issue a writ of habeas corpus where petitioner himself is charged with a criminal offence in respect of the very person for whose custody he demands writ. The remedy open in such cases to regain one's wife was by means of civil suit for restitution of conjugal rights or under Section 100 CrP.C. (now Sec. 97 CrP.C). 13. On facts the present case stands on different footing, as would be evident from narration of facts in the earlier part of this judgment. The remedy open in such cases to regain one's wife was by means of civil suit for restitution of conjugal rights or under Section 100 CrP.C. (now Sec. 97 CrP.C). 13. On facts the present case stands on different footing, as would be evident from narration of facts in the earlier part of this judgment. Though the petition has been filed through Ram Kewal but there is no prayer for delivery of custody of Neelam to him, i.e. there is no demand for regaining the possession of wife by the husband. The detenu is not in the custody of her parents. There was no occasion for filing a suit for restitution of conjugal rights or to move the Magistrate for issue of search warrant. There is no dispute that she is major. That being so, the question is whether she could be detained in the Nari Niketan against her wishes or that she should be set at liberty. The counsel for the petitioner has also placed reliance on a case reported Mrs. Kdyani Chaudhari v. The State of U.P. & others (1978 (2) Crl. Law Journal 1003). In this case it has been held that the detenu could not be kept in the Protective Home except under specific provisions of law. In this case also we find that no provisions have been mentioned by the learned Magistrate in his order in exercise of which he passed the orders for keeping the petitioner in the Nari Niketan. 14. In view of the discussion held above, the submission made on behalf of opposite parties that the petition through Ram Kewal is not maintainable or maintainable has no force. We hold that the petitioner could not be detained in the Nari Niketan, Lucknow, against her wishes and is entitled to be set at liberty.