- (1.) BY the Court-The present petition under Article 226 of the Constitution of India has been filed by Smt. Munni Devi alleging herself to be major as she was born on 2-8-1971 (vide High School Marksheet of 1987, Annexure-1), and that she out of her volition, has married one Krishna Kumar on 25-10- 1989 in view of the provisions of Section 5 of the Special Marriage Act, but she has been illegally detained against her wishes in the Nari Niketan, Swaroop Nagar, Kanpur. Her prayer is that she may be produced before the Court and set at liberty. This Court vide order dated 21st March, 1990, directed the petitioner to be produced here on 4-4-1990. In pursuance of the said order she was produced before this Court today and made a statement on oath which was recorded. She stated that she is aged about 20 years and was major and she has willingly married Krishna Kumar, and that her detention was illegal.
(2.) A counter affidavit has been filed on behalf of Sri Ram Dularey Dubey, father of the petitioner, denying the allegations and stating in para 4 thereof that the petitioner is only 17 years of age, and as there is a civil suit pending and an injunction has been obtained and against that an appeal is pending, hence the detention could not be said to be illegal, nor the present petition was maintainable. Sri O. P. Singh, learned counsel for the petitioner urged that the petitioner being major and having married Krishna Kumar voluntarily, her detention was illegal and she was entitled to be set at liberty. Sri Amar Saran learned counsel appearing for respondent no. 3, on the other hand, urged that the petitioner was 17 years of age and her detention in the Nari Niketan would be said to be legal, and unless the same was illegal, the habeas corpus petition was not maintainable, particularly, in view of the fact that in the civil suit an order has been passed against the petitioner and her husband, hence she could not be set at liberty. Having heard learned counsel for the parties and having perused the statement of petitioner and the date of birth indicated in her High School Marksheet as 2-8-1971, it is obvious that she is more than 18 years of age and is major. The certificate furnished by petitioner is correct and there is nothing to disbelieve it. She has married Krishna Kumar on 25-10- 1989 when she was major and has stated that she wants to go with her husband Krishna Kumar. As regards the submission of Sri Saran that the detention of petitioner was in pursuance of an order of the court in a suit, hence the same cannot be said to be illegal, suffice it to say that a girl, who is major and was married under the provisions of Section 5 of the Special Marriages Act, was entitled to live with her husband, and if she has been detained anywhere, that would be illegal. The writ of habeas corpus is available either to the wife who was major, to enable her to live with her husband, or to the husband for regaining the custody of his wife who has been detained by any one without her consent. Expression "wrongful detention," has been explained in Mohd. Ekram Hussain v. State of U. P., AIR 1964 SC 1625 as follows : "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. There was also no material irregularity vitiating the orders, for inexpediency is not the same thing as irregularity......Then there is a remedy of 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 fastinum remedium and the power can only be exercised in a clear case."
(3.) IN the present case having perused the statement of petitioner made on oath, we are satisfied that she was major and with her consent she wanted to live with her husband. IN the instant case if she has been detained in the Nari Niketan against her will, that is a wrongful detention. What amounts to wrongful detention is a question of fact for the court to decide in each case. IN the present case the detention of petitioner in the Nari Niketan against her consent, who was major and married, was wrongful detention, and the remedy of filing the present petition was correctly availed of as under the circumstances of the case she was entitled to the same. We accordingly do not find any substance in the submission of learned counsel for the respondent. In view of the premises aforesaid, the present petition succeeds and is allowed. The petitioner Smt. Munni Devi is directed to be set forth at liberty from Nari Niketan Swaroop Nagar, Kanpur. The Superintendent, Nari Niketan, Swaroop Nagar, Kanpur, is directed not to detain the petitioner any more and allow her to go with her husband Krishna Kumar. We however, direct the police personnel to accompany the petitioner just to ensure that she safely reaches the company of her husband. There shall be no order as to costs. A certified copy of this order be given to learned counsel for the parties today on payment of usual charges.;