Allahabad High Court
Kavita Shukla & Another vs State Of U.P. & 2 Others on 8 November, 2016
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 52
Case :- HABEAS CORPUS WRIT PETITION No. - 52890 of 2016
Petitioner :- Kavita Shukla & Another
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Shiv Sagar Singh,Ravi Prakash Bhatt
Counsel for Respondent :- G.A.
Hon'ble Pratyush Kumar,J.
Heard Sri Shiv Sagar Singh, Advocate, learned counsel appearing for the petitioners and learned AGA for the State.
The instant petition has been filed by the petitioners for setting at liberty petitioner no.1, illegally confined by her father respondent no.3, who happens to be her father through her husband petitioner no.2.
According to the averments contained in the writ petition both the petitioners are major. They had fallen in love. They solemnized their marriage on 13.3.2016 and applied for writ seeking protection order from this Court. On 20th March, 2016 on false pretext respondent no.3 had taken away petitioner no.1 and since then he has denied access to petitioner no.2 to petitioner no.1 and she is being kept in illegal confinement.
Submission of the learned counsel for the petitioners is that since both the petitioners are major, they are free to live as they like, petitioner no.2 being husband is entitled to file writ petition for habeas corpus, he need not seek the alternative remedy of restitution of conjugal rights by filing a suit before the family court. It is his prerogative to seek summary remedy by invoking jurisdiction of this Court conferred by Article 226 of the Constitution of India and his wife illegal detention amounts to infringement of her personal liberty enshrined under Article 21 of the Constitution, therefore, he cannot be asked to seek alternative remedy. In support of his arguments, he has referred the following cases:-
1. Mohd.Ikram Husain vs.State of U.P., AIR 1964 SC 1625=(1964)5 SCR 86=1964(20 Crl.L.J.590. He has placed reliance on the observation made in Para 13 of the report which is quoted hereinbelow.
"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 S.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 offecne 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 pwoer can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charnged with a criminal offence in-respect of the very person for whose custody he demands the writ."
2. Smt.Musarrat Shaheen Vs. Mohd.Daud and another 1989 (1) AWC, 30 where Single Judge of this Court has observed that locus standi of a person filing petition of habeas corpus may not be questioned. Para 14 of the report is quoted hereinbelow:-
"14. The next two questions may be taken up together. It was urged that Alimuddin had divorced Musarrat Shaheen and was thus not the husband of the girl and the prayer for habeas corpus was not maintainable at his instance. The exercise of power of habeas corpus may not be linked with the party who moves the application on behalf of the person detained. If the Court is satisfied that a particular person is being detained Illegally, it would, notwithstanding the status of the person moving the application, issue a direction for her production and release forthwith. The status of Alimuddin is of little consequence towards the maintainability of the habeas corpus application. Regarding his status as husband, no doubt at one point of time. Musarral Shaheen had stated about her divorce given to her by him. but it was never the plea of Alimuddin that he had divorced her and the subsequent conduct of Musarrat Shaheen negatives the allegations of divorce. However, a thorough discussion on this point is not necessary in this proceeding for habeas corpus as the matrimonial Court may determine It if at all such a question is posed at any future point of time."
Though learned counsel has taken the Court through the facts of the case mentioned in Mohd.Ikram Husain's case (supra) but I find myself unable to accept his submission that the ratio laid down by the Hon'ble Apex Court in that case and mentioned in Para 13 of the report can be distinguished on the basis of the difference in the light of the facts of this case and in that case.
So far as his submission that detention by private individual also amounts infringement of fundamental right in view of provision contained in Sub-Clause 2 of Article 226, I would like to observe that in Chapter-3 of the Constitution, fundamental rights have been given a special status but they are available only against the State. In Sub-clause-1 of Article 226 words 'any other purpose' reflect that besides fundamental rights statutory rights can also be enforced by this Court under Article 226. In the case of State of Orissa Vs. Madan Gopal Gugnta, AIR 1952 SC, 12, the Hon'ble Apex Court has already made an observation which takes care of the argument advanced on behalf of the petitioner.
The respondent no.3 is the father of petitioner no.1. The learned counsel has submitted that he is only requesting her to be summoned before this Court to enquire whether she has been detained against her wishes or she is living there with her own free will. In Para 13 of Mohd.Ikram's case (supra), Hon'ble Apex Court makes it clear, in case detention is illegal, the remedy lies in the form of report to Section 100 (Cr.P.C.1898, now Section 97 of Cr.P.C.1973). In case detention is not illegal, the remedy available to the petitioner no.2 is a suit for restitution of conjugal rights before the proper forum.
Though it is also settled legal position that in certain cases, this Court on the behest of husband can summon the wife alleged to be detained by her father but for that it is required that Court must be satisfied that valid marriage had taken place between these two and prima-facie detention is illegal. This marriage is said to have taken place at Aligarh according to the certificate but the certificate is not of Arya Samaj Marriage rather it appears to be issued by an unrecognized institution. More so both the petitioners are residents of district Jaunpur. This makes the solemnization of marriage at Aligarh to be under suspicious circumstances. For these reasons I am not satisfied about the bonafide of the claim of petitioner no.2 that he had solemnized marriage with petitioner no.1.
It is also difficult to ignore that petitioner no.1 had solemnized marriage on 13th March, 2016. She was taken away by respondent no.3 on 20th March, 2016 and thereafter they have not resumed their marital life together. Why the writ petition has been filed with delay of more than six months, it is difficult to understand. If during this period, the petitioner no.2 has any grievance, he could have sought his remedy available under the law from which he claims a right to meet and live with his wife. Thus, on account of delay, I do not think this petition survives.
In view of above, due to availability of alternative remedy, doubt about the bonafide of the marriage and delay on the part of the petitioner no.2, the writ petition is dismissed.
Order Date :- 8.11.2016
SKD
