Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 172 (GAU)

Sandeep Kumar Patel v. Pulinder Singh

2011-03-01

A.K.GOSWAMI, I.A.ANSARI

body2011
JUDGMENT A.K. Goswami, J. 1. By this application under Article 226 of the Constitution of India, the Petitioner has prayed for a Writ in the nature of habeas corpus directing the Respondent Nos. 1 and 2, who are parents of his wife, Smt Nitu Singh, with a further direction to the Respondent Nos. 3, 4, 5 and 6 to recover and produce her before this Court by liberating her from forceful custody of Respondent Nos. 1 and 2. 2. The case of the Petitioner, in brief, is that both the Petitioner and Smt Nitu Singh are aged about 27 years. The Petitioner came in contact with Smt Nitu Singh when they were prosecuting their B. Com. course and they had become friends. The friendship blossomed into love over a period of time and after a courtship of about four years, after informing their respective parents, they solemnized their marriage in the year 2009 under the Special Marriage Act, 1984 before the Marriage Officer (M), Kamrup, Guwahati. After the marriage, they started living together as husband and wife along with the parents of the Petitioner. 3. At the time of marriage, Smt Nitu Singh was prosecuting her Masters Degree. After about 3 / 4 months of living together in the matrimonial house, Smt Nitu Singh wanted to go and stay with her parents so as to prepare herself for her ensuing M.Com. Final examination and also to be with her parents as her mother was undergoing medical treatment. Her parents were also living in Guwahati. After completion of her examination, Smt Nitu Singh requested the Petitioner to allow her to go to Hazipur, Patna with her parents for the purpose of treatment of her mother and accordingly, she had left for Bihar, on 14.3.2010. 4. Though there were telephonic talks in between the Petitioner and his wife till May 2010, she had not come back to the matrimonial house and she had stopped all channels of communication from the month of June 2010. The attitude of the Respondent Nos. 1 and 2 had also changed in the meantime. On one occasion, they abused the Petitioner and told him that their daughter did not want to go back to Guwahati and, therefore, they would not send her back to Guwahati. 5. The attitude of the Respondent Nos. 1 and 2 had also changed in the meantime. On one occasion, they abused the Petitioner and told him that their daughter did not want to go back to Guwahati and, therefore, they would not send her back to Guwahati. 5. It is stated by the Petitioner that, subsequently, he managed to have a word with his wife on 13.8.2010 and 14.8.2010 over telephone and he having expressed his willingness to go to Bihar to take her back, Smt Nitu Singh consented to it but the conversation was snapped as he could realise that some one had snatched away the telephone from his wife. The Petitioner says that his wife was confined in the ancestral house, the address of which is given in the petition. 6. The Petitioner, by filing an application, had approached the learned Family Court, Guwahati, on 20.8.2010, for restitution of conjugal right, and the said application was registered as FC(Civil) Case No 517/2010 and notices were issued to the Respondents. Coming to know about filing of the case in the Family Court, the family members of Smt Nitu Singh had threatened the Petitioner over telephone. The Respondent No 1 had come down to Guwahati to meet the parents of the Petitioner and he had sought to impress upon them not to permit their son to proceed with the legal action already initiated. He vowed not to allow the relationship to continue as, while they belong to upper caste, the Petitioner was not, and the marriage is frowned upon in his society. He had also informed him that his daughter is being married off with another person of the same caste before March 2011. Petitioner's wife also told him on 19.12.2010 over telephone that she was being pressurized to give consent to marry another person or face dire consequences. It is the case of the Petitioner that his wife is in distress and she is prevented from coming to Guwahati. 7. We have heard Mr. KK Mahanta, learned senior counsel for the Petitioner and Ms B Goyal, learned Counsel for the Respondent Nos. 3, 4, 5 and 6. 8. Mr. Mahanta, on the aforesaid factual premises, emphatically urged that the Respondent Nos. 7. We have heard Mr. KK Mahanta, learned senior counsel for the Petitioner and Ms B Goyal, learned Counsel for the Respondent Nos. 3, 4, 5 and 6. 8. Mr. Mahanta, on the aforesaid factual premises, emphatically urged that the Respondent Nos. 1 and 2 had posed threat to the life and liberty of the wife of the Petitioner and she had been illegally kept in confinement within the four walls of the house. He has submitted that the Petitioner has strong apprehension that his wife may be forcefully given in marriage to another person against her consent by her parents. The learned senior counsel has also argued that this is a fit case where this Court should invoke its jurisdiction to issue a writ of habeas corpus for production of the wife of the Petitioner for the ends of justice, as writ of habeas corpus is issued not only to release from the detention by the State but also for release from private detention. To buttress his contention, the learned senior counsel has placed reliance on a decision of the Apex Court in Md. Ikram Hussain v. State of UP, reported in AIR 1964 SC 1625 . 9. In Md. Ikram Hussain (supra), 2 orders of the High Court of Allahabad made on August 26, 1960 and September 16, 1960 were the subject matter of consideration in two separate appeals. They were passed in a proceeding initiated by one Shri Mohesh under Section 491 Code of Criminal Procedure and under Article 226 of the Constitution of India for a Writ, Order or Direction in the nature of writ of habeas corpus to release his wife Kaniz Fatima @ Sheela from the unlawful detention by Md. Ikram Hussain and for delivery of said Kaniz Fatima to him. The first order was made by the High Court directing Md Ikram Hussain to bring before the Court said Kaniz Fatima alleged to be held in unlawful confinement within 10 days time. The said direction was not complied with and consequently Kaniz Fatima was not brought to the Court. In such circumstances, the High Court passed the second order and punished him to suffer imprisonment for three months and to pay costs. The Apex Court dismissed the appeal in connection with the order of September 16, 1960. 10. The said direction was not complied with and consequently Kaniz Fatima was not brought to the Court. In such circumstances, the High Court passed the second order and punished him to suffer imprisonment for three months and to pay costs. The Apex Court dismissed the appeal in connection with the order of September 16, 1960. 10. The first order of the High Court dated August 26, 1960, by which Kaniz Fatima was ordered to be brought in the Court was questioned on the ground of want of jurisdiction and for irregularity in the exercise of jurisdiction. It is in the aforesaid back drop, the Apex Court had said that the High Court had acted with jurisdiction and the Apex Court had ruled that writ of habeas corpus was not only to release from the detention by the State but also for release from private detention. While there is no dispute to the above proposition of law, when and under what circumstances, the same shall be issued is altogether a different matter. The proceeding in such a case is obviously a discretionary one. At common law, a writ of habeas corpus was available to the husband for regaining custody of his wife, if she is kept in wrongful detention by any one without her consent. What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy. 11. Because of alternative remedy like civil suit for restoration of conjugal rights and the provisions contained in the Code of Criminal Procedure being available, in India, the writ of habeas corpus is very sparingly invoked, on an application made by a husband to regain his wife. In a proceeding under criminal law as well as under civil law, all issues of facts can be decided and writ of habeas corpus is probably not warranted in a situation where facts have to be first established. This is because writ of habeas corpus can be exercised only when facts are clear. In a proceeding under criminal law as well as under civil law, all issues of facts can be decided and writ of habeas corpus is probably not warranted in a situation where facts have to be first established. This is because writ of habeas corpus can be exercised only when facts are clear. The Apex Court in Ikram Hussain (supra) at paragraph 13 of the judgment has stated thus: (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. 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. It is to be noted that it was the wife of the Petitioner who had, at first, wanted to go to her parent's house, ostensibly for the purpose of preparation for her M.Com examination and also to be able to be with her ailing mother. It was she, who, after the examinations were over, had wanted to go to Hazipur, Patna, for the medical treatment of her mother. The Petitioner has also stated in the petition that his wife had blocked all modes of communication after June 2010. The Petitioner had already initiated a proceeding for restoration of conjugal rights, on 26.8.2010 and that proceeding is still continuing and although the Petitioner had stated that there was some difficulty in effecting service, the same by itself may not be a ground to initiate parallel proceeding in the High Court by seeking a writ of habeas corpus. The Petitioner had already initiated a proceeding for restoration of conjugal rights, on 26.8.2010 and that proceeding is still continuing and although the Petitioner had stated that there was some difficulty in effecting service, the same by itself may not be a ground to initiate parallel proceeding in the High Court by seeking a writ of habeas corpus. The Petitioner's apprehension that his wife may be again given in marriage while the present marriage is subsisting, can well be taken care of in the ordinary course of law. The Petitioner is also not remediless with regard to his contention that his wife is being wrongfully confined. 13. We find that the factual matrix of the case is a bit hazy and not very clear. We hasten to add that we are not expressing any opinion about the veracity or otherwise of the statements made by the Petitioner. In a given case, if the circumstances of the case would have so demanded, we may have ordered an enquiry into the facts of the case as the Court is not prohibited from ordering an enquiry in a habeas corpus proceeding. However, we do not think that this is a case where, in view of certain grey areas in the facts, we should order an enquiry to investigate the facts alleged, to satisfy us before invoking our extraordinary powers under Article 226 of the Constitution. 14. In view of the aforesaid discussions, we find no merit in the application and, accordingly, the writ is refused. The Petitioner may take such steps as may be available to him in law for redressal of his grievances. 15. No costs.