O.P.Jain - (1.) HABEAS Corpus Writ Petition No. 4056 of 1997 and HABEAS Corpus Writ Petition No. 8049 of 1997 are being disposed of by a common order. Sri Kamal Krishna who has appeared for the petitioner In Case No. 4057/97 and Sri Z. K. Hasan who has appeared for the petitioners in Case No. 8049/97 have been heard.
(2.) THE allegations in Case No. 4056/97 are that Smt. Seeta Devi and Mahendra are residents of the same village and they fell in love with each other and decided to marry. Both are stated to be major. It is alleged that they got their marriage registered before the Sub-Registrar on 28.9.96 and it is further alleged that Smt. Seeta Devi is being confined in the house of opposite parry No. 2 who is related to her father Mata Pher, opposite party No. 1. The allegations in Case No. 8049/97 are that Smt. Sahista Anis, petitioner No. 1 was married to Syed Ejaz Hussain, petitioner No. 2, according to Muslim rites on 21.12.1995. They lived happily for some time. However, the parents and brother of opposite party No. 1, Smt. Sahista Anis, insisted that both of them should live with the respondents. It is further alleged on 14.5.96, in the absence of petitioner No. 2 respondents No. 1, 3 and 6 along with ten to twelve other persons came to the house of the petitioner No. 2 and forcibly took away petitioner No. 1. It is further alleged that a compromise was arrived at and petitioner No. 1 again started living with petitioner No. 2 from 6th May, 1996. However, again on 18.2.97 respondent No. 3 along with 4 and 5 other persons came to the house of petitioner No. 2 and again forcibly took away petitioner No. 1 against her wishes. Petitioner No. 2 is not being allowed to talk to petitioner No. 1 and he over heard petititioner No. 1 saying that she was being forcibly detained by the respondents. The first question which arises for consideration is whether a writ of habeas corpus should be issued as a matter of course at the instance of the husband who alleges that his wife is being detained against her will by her parents.
(3.) THE earliest case on the point is Smt Vidya Verma v. Dr. Shiv Narain Verma, AIR 1956 SC 108, in which it has been held in paragraph 7 that the violation of the right to personal liberty by a private individual is not within the purview of Article 21. THErefore, a person whose right to personal liberty is infringed by a private individual must seek his remedy under the ordinary law and not under Article 32. This was a case filed on behalf of the daughter against her father. The next case on the point is Mohd. Ikram Hussain v. State of U. P. and others, AIR 1964 SC 1625, in which the following observations have been made in paragraph 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 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.........." ;