The Allahabad High Court has dismissed a writ seeking habeas corpus at the behest of a husband after finding that his wife had left her matrimonial home of her own volition since there was no evidence to establish the factum of illegal detention. The Court held that a writ of habeas corpus may not be issued when facts are in dispute or are not clearly established.

The husband had filed for a writ of habeas corpus alleging that his wife was under illegal detention of her maternal uncle.

A Single Bench of Justice Y.K. Srivastava observed, “In view of the other remedies available for the purpose, under criminal and civil law, exigence of a writ of habeas corpus at the behest of a husband to regain his wife would be rare and may not be available as a matter of course and the power in this regard may be exercised only when a clear case is made out.

Advocate Mohd. Monis represented the petitioners.

The Court noted, “The writ of habeas corpus has been held as a festinum remedium and accordingly the power would be exercisable in a clear case. The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course.

The Court distinguished between the authority to order search for wrongfully confined individuals granted under Section 97 of the CrPC and Section 98 of the CrPC which outlines the procedure for compelling the restoration of abducted females. The Court then clarified that in cases where a husband contends that his wife, without reasonable cause, refuses to return to the matrimonial home, he can seek the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.

The Court remarked that the choice between the two remedies depends on whether the detention amounts to an offence or not. If the detention is not criminal, then the remedy of restitution of conjugal rights can be pursued and if it is criminal, then the remedy under the CrPC can be sought.

The Court held that “The exercise of the extraordinary jurisdiction for issuance of writ of habeas corpus would be dependent on the jurisdictional fact where the petitioner establishes a prima facie case that the detention is unlawful, which apparently is not demonstrated from the facts which are on record in the present case.

Accordingly, the High Court dismissed the petition.

Cause Title: Jaishree & Anr. v. State Of U.P & Ors. (2024:AHC:8706)

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