(1.) The scope of the high prerogative writ of Habeas Corpus as known to English Law, and the grounds on which it should issue are, we think well settled on the judicial decisions. It is enough to extract the classic observations of Brett, M. R. in In re Agar ellis v. Lascelles (1883 (24) Law Reports Chancery, 317.) at page 326:
"It is the universal law of England that if any one person alleges that another is under illegal control by anybody, that person, whoever it may be, may apply for a Habeas Corpus and thereupon the person under whose supposed control, or in whose custody, the person is alleged to be illegally and without his consent is brought before the Court. But the question before the Court upon Habeas Corpus is whether the person is in illegal custody without that person's consent."
That was in case where a mother's application that she be allowed the custody and control of her daughter aged nearly 17 years who had been left by the father, under protection of a lady as care taker, who was proceeding abroad for a few weeks, was dismissed by the Court, on the ground that no grounds have been made out to deprive the father of the exercise of his legitimate rights to direct the education, of his children till they complete 21 years of age. Cotton, L. J. in that case observed:
"It is not in our power to go into the question as to what we think is for the benefit of this ward. The father has not in my opinion forfeited his right to exercise his duties as a father, and we ought not to interfere. It has been said that we ought to consider the interest of the ward. Undoubtedly. But this Court holds this principle that when, by birth, a child is subject to a father, it is for the general interest of families, and for the general interest of children, and really for the interest of the particular infant, that the Court should not, except in very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child. In my opinion we should be breaking through the principle on which this Court has no long acted if we were to be persuaded by any argument addressed to us to interfere in this case and take upon ourselves the duties which the father has to exercise."
And, Bowen, L. J. added:
"This is a case in which, if we were not in a Court of law, but in a court of critics capable of being moved by feelings of favour or disfavour we might be tempted to comment, with more or less severity, upon the way in which, so far as we have heard the story, the father has exercised his parental right. But it seems to me the Court must not allow itself to drift out of the proper course; the Court must not be tempted to interfere with the natural order and course of family life, the very basis of which is the authority of the father, except it be in those special cases in which the state is called upon, for reasons of urgency, to set aside the parental authority and to intervene for itself. I for one should deeply regret the day, if it ever came, when Courts of Law or Equity thought themselves justified in interfering more than is strictly necessary with the private affairs of the people of this country. Both as regards the conduct of private affairs, and of domestic life, the rule is that Courts of Law should not intervene except upon occasion. It is far better that people should be left free, and I do not believe that a Court of Law can bring up a child as successfully as a father, even if the father was exercising his discretion as regards the child in a way which critics might condemn".
Lower down the same Lord Justice observed:
"I believe that the Court has jurisdiction, but it must exercise it with sufficient reason. As the Master of the Rolls said, the interference of the Court may be certainly invoked by reason of other circumstances than those which have been laid down in the classification to which he has alluded. As soon as it becomes obvious that the rights of the family are being abused to the detriment of the interests of the infant, then the father shows that he is no longer the natural guardian that he has become an unnatural guardian that he has perverted the ties of nature for the purpose of injustice and cruelty. When that case arrives the Court will not stay its hand; but until that case arrives it is not mere disagreement with the view taken by the father of his rights and the interests of his infant that can justify the Court in interfering. If that were not so we might be interfering all day and with every family. I have no doubt that there are very few families in the country in which fathers do not at some time or other, make mistakes, and there are very few families in which a wiser person than the father might not do something better for that child than is being done by the father, who however has an authority which never ought to be slighted."
The three classes of cases in which interference with a father's rights would be justified were summarised broadly as, where he has forfeited the right by his moral turpitude, where he has abdicated his authority, and where he removes the ward out of jurisdiction. In Queen v. Jackson (1891 (1) QB 671) it was ruled that where a wife refuses to live with her husband, he is not entitled to keep her in confinement in order to enforce restitution of conjugal rights. In such circumstances, the Court (Lord Halsbury, Lord Esher and Lord Justice Fry) directed liberty to be restored to the lady.
Lord Halsbury concluded as follows:
"The result is, in my opinion, that there is no power by law such as the husband claims to exercise, and, if there were, the facts give ample ground to the lady to apprehend violence in the future. Either of these grounds is sufficient to show that the return to this writ is bad, and that this lady must be restored to her liberty."
Lord Esher M. R. observed at page 684:
"In my opinion, the circumstances are such that the Court ought not to give her back into his custody. He has obtained, it is true, a decree for restitution of conjugal rights; but that gives him no power to take the law into his own hands and himself enforce the decree of the Court by imprisonment."
Fry L. J. agreed with Lord Halsbury on the ground that the rights set up did not exist by the law of England. In re Cochrane (8 Dowl. 630) was relied on as authority for the proposition that if the wife refuses to live with her husband, the latter has right to take her by force and keep her confined, not imprisoned, till she consents to do so. Lord Esher (in Jackson's case) stated that Cochrane's case was no authority in support of such a proposition. Lord Halsbury observed that no English subject has a right to imprison of his own free will, another English subject; and Lord Justice Fry observed that Cochrane's case had been weakened by R v. Leggete 1852 (18) QB 781.
(2.) With respect to an application for habeas corpus under Art.226, our Supreme Court in Mohamed Ekram Hussain's case ( AIR 1964 SC 1625 ) has ruled that the proceedings are discretionary, that a preliminary enquiry is open, and that although the writ is of right, it does not issue as a matter of course. What then are the facts disclosed in the present writ petition The petitioner, an Ezhava, claims to have married the 3rd respondent, a Nayar lady, aged 21 years. The marriage is evidenced by a rather unusual certificate (Ext. P1) issued by the S. N. D. P. Union, and cash receipts for the marriage charges (Exts. P2, P3, P4, P5 and P6). The 3rd respondent is staying with her own parents, and despite the allegation made by the petitioner, little has been made out before us to show that she is under restraint, or is being illegally detained by the parents. There are criminal proceedings pending between the parties; and in these, the 3rd respondent, on the petitioner's own showing, has filed a petition repudiating her having married the petitioner, and stating that she was staying of her own free will with her parents and was not being wrongfully confined, (vide Para.6 of the petition). This is the background against which a writ of Habeas Corpus is prayed for. These facts, we should think, are sufficient for this Court to refuse the writ prayed for. In this region, where, at best, we see the picture of a woman subjected to the pulls and pressures of marital (or, may be extra marital) attachment on the one side and parental affection or guidance on the other, taking into due account the rights and responsibilities which nature has entrusted to parents in regard to their children, we are not satisfied that any case of illegal detention or custody which calls for redress under Art.226 stands made out. We dismiss the petition.
(3.) We record our thanks to the learned Advocate General and to all the Counsel who assisted us by their arguments at the hearing.;