Thirumalai Kumaran vs Union Territory Of Dadra And Nagar ...
2002 Latest Caselaw 1331 Bom

JUDGMENT

D.G. Deshpande, J.

1. This petition is filed under Article 226 of the Constitution of India and the prayer therein is that this Hon'ble Court to issue a writ of habeas corpus against the respondents and direct them to produce the petitioner's wife Manisha before this Court.

2. When the petition came before us on 27-8-2002 Mr. Agarwal, appearing for respondent Nos. 1 and 2, raised preliminary objection about maintainability of the writ petition on the ground that the petitioner had availed of the facility under Section 97 of the Criminal Procedure Code. His so called wife was produced before the Magistrate. She was questioned by the Magistrate and on being satisfied that the girl wants to leave with father, she was allowed to go. Therefore, according to Mr. Agarwal, this petition was not maintainable because alternate remedy was resorted to and exhausted by the petitioner. However on that day Mr. Shirodkar produced the album of photographs wherein the girl Manisha was shown with the petitioner in number of photographs. We, therefore, directed to produce the girl before the Court by our order dated 27-8-2002. Accordingly the girl was produced by the police. We questioned her in Chamber. Her statement was recorded and since the girl refused her status as a wife of the petitioner and expressed her desire that she wanted to go with her father, the girl was allowed to go. As such so far as the facts and merits are concerned, nothing remain in this petition.

3. However, while passing our order dated 27-8-2002 we had clarified that all the objections raised by Mr. Agarwal and the case laws cited by him supporting thereof would be considered at the time of final hearing. When the girl was allowed to go and nothing remain in the petition, we asked Mr. Agarwal whether he continues with his preliminary objections and wants decision from this Court. He replied in the affirmative and hence this order.

4. To be precise, the objections raised by Mr. Agarwal is that when a party has resorted to the remedy under Section 97 of the Criminal Procedure Code and has failed therein, can he approach the High Court for writ of habeas corpus. According to Mr. Agarwal, in such eventuality the High Court should not entertain the petition for habeas corpus. Mr. Agarwal cited the following authorities of the Supreme Court in support of his contentions :--

(1) , Smt. Vidya Verma v. Dr. Shiv Narain Verma;

(2) , Md. Ikram Hussain v. The State of U.P. and Ors.; (3) , Kanu Sanyal v. Dist. Magistrate and Ors.;(4) (1976) 3 SC 234, Gian Devi v. The Supt. Nari Niketan Delhi and Ors. (5) , Kumari Kiran v. Anand Pratap Singh and Ors.; (6) , Rajiv Bhatia etc. v. Govt. of NCI of Delhi and Ors.; (7) , Capt. Dushyant Somal v. Smt. Sushma Somal and Ors.

and other cases of the different High Courts.

5. As against this it was contended by Mr. Shirodkar that even if the aforesaid judgments of the Supreme Court are taken into consideration, nowhere it is laid down that the High Court ceases to have any power of issuing writ of habeas corpus merely because the party or the petitioner has availed of his remedy under Section 97 of the Criminal Procedure Code, Mr. Shirodkar also contended that the powers of the High Court in this regard are not restricted or circumvented by the provisions of Section 97 of the Criminal Procedure Code. He further contended that the criteria applied in cases under Section 97 of the Criminal Procedure Code and the criteria to be applied for issuing writ of habeas corpus by the High Court are totally different and, therefore, desirability of such a petition after the person has exhausted the remedy under Section 97 of the Criminal Procedure Code cannot be equated with the powers of the High Court for issuing writ of habeas corpus in appropriate cases.

6. He also contended that there is no prohibition in law that no person can file a petition for habeas corpus merely because he has availed of and exhausted his remedy under Section 97 of the Criminal Procedure Code.

7. So far as Authority cited by Mr. Agarwal is concerned, , Smt. Vidya Verma v. Dr. Shiv Narain Verma, it has not answered this question. The petition before us was filed under Article 226 of the Constitution of India whereas in the matter before the Supreme Court in , Smt. Vidya Verma v. Dr. Shiv Narain Verma where Articles 21 and 32 of the Constitution of India were invoked and the Supreme Court held that remedy under Article 32 is not available where violation of right to personal liberty by a private individual is involved. This judgment is of no help, therefore, to Mr. Agarwal.

8. In , Md. Ikram Hussain v. The State of U.P. and Ors. the stress was laid by Mr. Agarwal on paragraphs 13, 15 and 17 of the said judgment. So far paragraph 13 is concerned, the Supreme Court observed thus :--

"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 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.

Then in para 15 the Supreme Court observed thus :--

"A writ of habeas corpus at the instance of a man to obtain post session or a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course especially when a man seeks the assistance of the Court to regain the custody of a woman. Before a Court accedes to this request it must satisfy itself at least prima facie that the person claiming the writ is in fact the husband and further whether valid marriage between him and the woman could at all have taken place"

9. In the case of Kanu Sanyal v. Dist. Magistrate and Ors., the petition for habeas corpus was filed by prisoner from jail contending that he was wrongfully deprived off his liberty and that he should be released forthwith from his confinement. The petitioner was detained as an under trial prisoner pursuant the remand granted from time to time by the Special Magistrate. The question, as it appears from the judgment, is whether the petitioner was entitled to file an application that he should be produced before the Court before his petition for habeas corpus should be disposed of and the Supreme Court answered to the question in negative by observing as under:--

"While dealing with an application for a writ of habeas corpus under Article 32, the Supreme Court may not require the body of the person detained to be brought before the Court. The production of the body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with the application. The Supreme Court can examine the legality of the detention on the hearing of the rule nisi without requiring that the person detained be brought before the Court."

It will therefore be clear that this judgment is also of no help to Mr. Agarwal.

10. The next case relied upon by Mr. Agarwal is, , Gian Devi v. The Supt. Nari Niketan Delhi and Ors. That case was decided by the Supreme Court with reference to the facts of that case. The petitioner in that case was more than 18 years of age and, therefore, in that background, the Supreme Court has observed that:--

Petitioner is sui juris. No fetters can be placed upon nor choice of the person with whom she is to stay nor can any restriction be imposed regarding the place where she should stay. The Court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.

Prayer of the petitioner in the present case before us was not that his wife Manisha be ordered to reside with him. The prayers were that she should be produced before this Court and she should be allowed to stay with the petitioner and third prayer was that the father and brother of Manisha and the police should be restricted from interfering in the married life of the petitioner. The writ petition before this Court, therefore, is not for getting custody of Manisha because if upon production it was round by this Court that Manisha was major and she wanted to live with the husband then only further question would have arisen in this matter. But in that case the Judgment of the Supreme Court would have gone in favour of Manisha if at all she had expressed her desire to go along with her husband. But she expressed her desire to go with her father. We allowed her to go as per her wish.

11. The next judgment relied upon by Mr. Agarwal is , Kumari Kiran v. Anand Pratap Singh and Ors. In that case the judgment is very short. In that case the High Court appears to have passed an order directing the parents of Kiran Singh to produce Kiran Singh before the High Court and the subsequent order issuing coercive process for her production was passed by the High Court. It appears that the said order of Allahabad High Court was challenged before the Supreme Court. Kiran Singh appeared before the Supreme Court and made certain statements and refused to go with Akhil. Therefore, in that background of the statements, the High Court order was quashed, and the High Court was directed to dispose of the habeas corpus petition in such manner as it deems fit. This case is also of no help to Mr. Agarwal.

12. Thereafter a reliance was placed by Mr. Agarwal on Capt. Dushyant Somai v. Smt. Sushma Somai and Ors. In that case minor son Sandeep was removed from the custody of mother in September 1977. Mother or the wife of the petitioner filed an application for issuing habeas corpus directions to her husband to produce her son. The husband denied the allegations of kidnapping the son. Witnesses were examined before the High Court. The husband did not examine himself as a witness nor did he examine any witness on his side. He did not cross examine his wife and, therefore, the wife's evidence was accepted and it was held that Sandeep was unauthorizedly taken away from the lawful custody of the mother, and, therefore, the writ was issued directing him to produce the child before the Court. The child was not produced and, action for contempt was taken against the husband. Therefore SLP was filed before the Supreme Court.

13. In that background the Supreme Court observed in para 3 thus :--"There can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent, for the custody of a child. Clear grounds must be made out." In that matter also there is no reference to Section 100 old Act or Section 97 of the Criminal Procedure Code. Hence this judgment is of no help to Mr. Agarwal.

14. The submission of Mr. Agarwal was that even the party has exhausted remedy under Section 97 of the Criminal Procedure Code and has failed therein, then the High Court should not entertain any petition for habeas corpus. We appreciate the anxiety of Mr. Agarwal that High Court should not be unnecessary burdened with trifle matters or the matters over which the parties have exhausted their remedy and failed. However, the powers of habeas corpus are given to the High Court by the Constitution and we do not wish to curtail our powers. It is true that if a party has approached the Courts below under Section 97 of the Criminal Procedure Code and has failed therein, then High Court would be reluctant to interfere. However, no blanket prohibition can be imposed in this regard. In a given case and in the facts of peculiar case, the High Court may exercise its discretion to act for issuance of writ of habeas corpus. Powers of the High Court are not taken away by Section 97 of the Criminal Procedure Code and, therefore, since the academic questions are argued, we answered accordingly and disposed of this petition.