Writ Of Habeas Corpus At Husband's Behest Seeking Wife's Return Not Available As A Matter Of Course: Allahabad High Court

A bench of Justice Yogendra Kumar Srivastava emphasized that such a writ may not be readily available and should only be exercised in exceptional circumstances when a compelling case is presented.

“In a situation where the husband seeks to assert that the wife, without reasonable cause, is refusing to return to her matrimonial home, it would be open for him to seek the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955,” the Court added.

With this, the Court dismissed a habeas corpus plea filed by a man seeking the custody of his wife, alleging that she is presently under the illegal detention of her maternal uncle.

It was the case of the husband that his wife left his house and despite efforts being made by him, she is not willing to come back to her matrimonial home.

On the other hand, the counsel for the state submitted that it was apparent that the wife had left her matrimonial home on her own and there is no material to suggest that she is under illegal detention.

Against this backdrop, noting that the writ of habeas corpus is a prerogative writ and the same may be granted only on reasonable ground or probable cause being shown.

“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 noted.

The Court further observed that the power to direct search for persons wrongfully confined is provided under Section 97 of the Code of Criminal Procedure, 1973 whereas Section 98 provides the procedure to compel restoration of abducted females.

Regarding a husband's prayer to seek a wife's custody the Court said that when a wife, without reasonable cause, refuses to return to her matrimonial home, the husband can seek the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.

In view of this, noting that the wife had left her matrimonial home, of her own volition, and there is no material to establish the factum of illegal detention, the Court rejected the petition seeking a writ of habeas corpus at the behest of the husband.

Case title - Jaishree and Another vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 39 [HABEAS CORPUS WRIT PETITION No. - 1041 of 2023]

Case citation: 2024 LiveLaw (AB) 39

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