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PETITIONER: MOHD. IKRAM HUSSAIN

       Vs.

RESPONDENT: STATE OF U.P. & OTHERS

DATE OF JUDGMENT: 09/10/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GUPTA, K.C. DAS

CITATION:  1964 AIR 1625            1964 SCR  (5)  86  CITATOR INFO :  RF         1981 SC 723  (14)  RF         1981 SC1026  (4)  R          1982 SC1057  (11,18)  R          1988 SC1796  (16)

ACT:    Habeas   Corpus--Petition   for   custody   of    alleged wife--Power  of Court to order inquiry into  facts--Contempt of   Court--Punishment  for--Constitution  of  India,   Art. 226--Code  of Criminal Procedure, 1898 (Act 5 of  1898),  s. 491.

HEADNOTE:     Proceedings  under  s.  491  of  the  Code  of  Criminal Procedure  and  Art. 226 of the Constitution of  India  were started by one Mahesh for a writ, order or direction in  the nature  of  a writ of habeas corpus to release  his  alleged wife  Kaniz Fatima alias Sheela from unlawful  detention  by the appellant, her father and for delivery of the said Kaniz Fatima to him.  On August 26, 1960, the High Court passed an order  by  which  the  objections  of  the  appellant   were overruled  and  he was directed to bring  before  the  Court Kaniz  Fatima  alleged to be held in  unlawful  confinement. The appellant was given ten days time to obey the direction. As the direction was not complied with and Kaniz Fatima  was not produced in Court 87 the High Court passed  another order on  September  16, 1960 by  which  the  appellant was  committed  for  contempt  and sentenced to simple imprisonment for three months and to pay the costs. The appellant came to this Court by special leave against the orders of the High Court.     Held:   The  order  of the  High  Court  committing  the appellant for contempt was justified because the High  Court rightly  reached  the conclusion that the  appellant  having knowledge of the whereabouts of Kaniz Fatima and having  the custody   of   her  through  another,  was   wailfully   and deliberately  disobeying the direction of the Court.  In  so far  as  the offence of contempt was  concerned,  there  was manifest disobedience of the order and the High Court  could punish by ordering the appellant to be detained in prison.     (ii) A writ of habeas corpus issues not only for release

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from  detention  by  the State but  also  for  release  from private detention. At common law, a writ of habeas corpus is available  to the husband for regaining the custody  of  his wife  if  she is wrongfully detained by anyone  without  her consent.  Hence the order of the High Court was not  without jurisdiction.   However, issuing of a writ of habeas  corpus at the instance of a husband is very rare in English law. In India,  such a writ is probably never used by a  husband  to regain  his wife and the alternative remedy under s. 100  of the  Code  of Criminal Procedure is always used.   There  is also the remedy of a civil suit for restitution of  conjugal rights.  In both these cases, 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 a clear  case.   That is particularly so in  cases  where  the petitioner  is  himself charged with a criminal  offence  in respect of the very person for whose custody he demands  the writ.   A writ of habeas corpus at the instance of a man  to obtain possession of a woman alleged to be his wife does not issue as a matter of course.  Though a writ of right, it  is not  a  writ  of course, especially when  a  man  seeks  the assistance  of the court to regain the custody of  a  woman. Before  a  court  accedes to his request,  it  must  satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage  between him and the woman could at all have taken place.     (iii)  The writ nisi for the production of Kaniz  Fatima should have been preceded by some more inquiry.  It is wrong to  think  that in habeas corpus proceedings  the  Court  is prohibited  from  ordering  an inquiry  into  a  fact.   All procedure  is always open to a Court which is not  expressly prohibited  and  no  rule of the Court has  laid  down  that evidence shall not be received if the court requires it.     The  Queen  v.  Barnardo, 23 Q.B.D. 305;  The  Queen  v. Barnardo,  24 Q.B.D. 283 and Thomas, John Barnardo  v,  Mary Ford, [1892] A.C. 326, referred to. 88

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION: Criminal Appeals Nos. 227 and 228 of 1960.     Appeals  by special leave from the judgments and  orders dated  September  16, and AugUst 26, 1960 of  the  Allahabad High Court in Criminal Misc. Case No. 1519 of 1960.     N.C.  Chatterjee, D.P. Singh and M.I. Khowaja,  for  the appellants. C.P. Lal, for the respondent No. 1.     October 9, 1963. The Judgment of the Court was delivered by     HIDAYATULLAH J.--This judgment will govern the  disposal of Criminal Appeals Nos. 227 and 228 of 1960.  In both these appeals  the  appellant  is one Mohammad  Ikram  Hussain  an Advocate  of the Allahabad High Court residing in  49,  Zero Road, Allahabad.  The second respondent in these appeals  is one  Mahesh  Prashad,  a  resident  of  4,  Gujrati  Mohalla Allahabad City but who has not appeared in this Court.   The other two respondents are the State of U.P. on whose  behalf a belated appearance was made by Mr. C.P. Lal, Advocate  and the  Station House Officer, Kotwalli, Allahabad who was  not represented at the hearing.  The two appeals are in a  sense connected  and  impugn  two  orders of  the  High  Court  of

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Allahabad made respectively on August 26, 1960 and September 16,  1960.   They were passed in a proceeding  initiated  by Mahesh under s. 491, Criminal Procedure Code and Art. 226 of the  Constitution  for  a writ, order or  direction  in  the nature  of  a writ of habeas corpus to release  his  alleged wife  Kaniz Fatima alias Sheela from unlawful  detention  by the  appellant and for delivery of the said Kaniz Fatima  to him.  The first order was made by the High Court  overruling the  objections  of the appellant, directing  him  to  bring before the Court the said Kaniz Fatima alleged to be held in unlawful confinement.  By that order the High Court gave the appellant  10  days’  time to obey the  direction.   As  the direction  was  not complied with and Kaniz Fatima  was  not brought 89 into  the  Court,  the High Court passed  the  second  order committing the appellant for contempt and sentencing him  to simple imprisonment for 3 months and to pay the costs.   The High  Court was moved for a certificate but declined  it  by its Order  dated October 14, 1960.  The present appeals have been filed by special leave granted by this Court.     On July 28, 1960, Mahesh Prashad filed a petition in the High  Court of Allahabad against the Station House  Officer, Kotwali  Allahabad and Ikram Hussain, the  appellant.   This petition  purported to be under s. 491,  Criminal  Procedure Code  and  Art.  226 of the  Constitution.   Mahesh  Prashad stated  therein  that sometime in October 1959 he  made  the acquaintance of Kaniz Fatima, the daughter of the  appellant and a marriage between them took place on December 25,  1959 according  to  Vedic rites after Kaniz Fatima  had  embraced Hinduism.    Mahesh   stated   that  they   used   to   meet clandestinely  and Kaniz Fatima became pregnant.   She  left home  in  early June 1960 and went to live with him  at  his house  No.  4, Gujrati Mohalla, Allahabad but  on  June  23, 1960, the Station House Officer, Kotwali Allahabad  searched the house and arrested Mahesh and took away Kaniz Fatima  in spite  of  protests  on her part as  also  on  his.   Mahesh further  stated that he was 23 years of age and  that  Kaniz Fatima’s  age,  according  to the record  of  the  Allahabad municipality  was  21  years and according  to  the  medical examination  at Dufferin hospital immediately after she  was taken away from his house, 19 years.  He further stated  mat a  prosecution was started against him under ss.  363,  366, 368  and  376,  Indian Penal Code and  that,  after  he  was released on bail on July 15, 1960, he searched for his  wife but  could  not find her and learnt that the  appellant  was keeping  her  confined against her wishes  at  Jaunpur.   He asked for a writ for the production of Kaniz Fatima in Court and for her release and swore an affidavit in support of his petition.   In answer to the notice which was issued by  the High Court on July 29, 1960, the Station House Officer,  and the appellant appeared before 90 the High Court and put in their affidavits.  Before we  deal with  those  affidavits  in detail we  shall  set  down  the version  of the appellant in regard to the disappearance  of Kaniz Fatima.     Kaniz Fatima according to the appellant was a student at the Hamidia Girls College, Allahabad, where she had enrolled herself  in  July 1958.  She appeared for  the  High  School Examination  of 1959 but was unsuccessful.  The  result  was announced  about  the 17th June 1960 and on  June  20,  1960 Kaniz Fatima disappeared.  The appellant then filed a report in the police station house to the following effect: "To

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The Dy. Superintendent Police, Allahabad. Sir,       My  daughter Kaniz Fatima alias Sheela, aged about  15 years,  medium  fair complexion, thin body appeared  in  the High  School Examination   of 1960 from Hamidia Girls  Inter College.   Unfortunately she failed in the examination.  She became very despondent. Yesterday,  the 20th of June 1960 at about 5 o’clock in  the morning she disappeared from the house and has not  returned home tilt this time.  I was not in Allahabad yesterday.       I hope, she will be traced and restored to me, I shall be obliged. Yours faithfully, Sd/-Mohd. Ikram Hussain, 49, Zero Road, Allahabad."     The police caused a searched to be made at the house  of Mahesh  on  the  evening of June 23, 1960  and  found  Kaniz Fatima in that house.  Kaniz Fatima then made a statement to the  police  which  is Annexure ’B’  to  the  special  leave petition No. 882 of 1960 in Criminal Appeal No. 227 of 1960. In that statement Kaniz Fatima stated that she had  appeared for the High 91 School  Examination from Hamidia College, Allahabad and  the result  was out on June 17, 1960.  As she had failed in  the examination  she was very depressed and as her parents  used to make sarcastic remarks she decided to leave the house and go to her aunt Sardar Begum in Rani Mandi.  Accordingly  she left  in the early hours of the morning but lost her way  as she  was  a  Parda  girl and had no money  even  to  hire  a rickshaw.  On the way she met two men Mahesh and Sudama--who offered  to show her the way to Rani Mandi but instead  took her  to  the  house in Gujrati Mohalla from  where  she  was recovered.   She alleged that they criminally assaulted  her and kept her confined against her will.  She gave her age as about 15 years or 16 years but stated that she did not  know the  age entered in the college register.  On the  next  day another statement of Kaniz Fatima was recorded by the police and  it is Annexure ’E’ to the petition above mentioned.  By this  statement  she  expressed a desire to  live  with  her father, the appellant, and the police handed her over to the appellant  taking  from him a ’Sapurdaginama’  (Annexure  H) containing  an  undertaking that he would produce  the  said Kaniz Fatima whenever required by the police or the Court in connection with the case against Mahesh Prashad and. others. It  is thus that the appellant got back his  daughter  Kaniz Fatima  while Mahesh Prashad was arrested and  charged  with abduction and rape but was released on bail on or about July 15,  1960.  On July 28, 1960, he filed this petition  for  a writ of habeas corpus.     We need not concern ourselves with the affidavit of  the Station Officer, Kotwali, Allahabad.  His position was quite clear.   He  had handed over the girl to  her  father  after taking a statement from her. The appellant made a return  on affidavit  supporting  it by an affidavit of one  Ram  Nath. The appellant’s return stated the facts already narrated  by us  in regard to the disappearance of Kaniz Fatima  and  her recovery from No. 4, Gujrati Mohalla, Allahabad,  He  stated further   that  Kaniz  Fatima  was  not  with  him,   having disappeared for a second time in the circumstances 92 now  to  be  narrated.  The  appellant   stated  that  Kaniz Fatima  was very dejected over what had happened to her  and was  sent to his brother-in-law, Syed lqtedar  Hussain,  51,

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Sabzi Mandi, Allahabad and his wife Mst. Shabbiri Begum, the sister of Kaniz Fatima’s mother.  This was on July 8,  1960. The appellant and his wife used to go to see Kaniz Fatima at that house which was less than half a mile from their house. On  July  20,  1960,  Iqtedar  Hussain  and  Shabbiri  Begum informed  him  that Kaniz Fatima had disappeared.   He  felt very dejected and his son Imdad Hussain and Iqtedar  Hussain searched  for the girl at the houses of all their  relatives in  Allahabad  and also at Faizabad.  The  appellant  stated that he did not report to the police because of the  scandal and  humiliation.  He expressed his inability to  bring  the girl.  He stated that the allegations about the con. version of  Kaniz Fatima, her marriage and pregnancy  were  entirely false.   He  contended  that no marriage  could  take  place because Mahesh was already married with a wife living.   The affidavit  of Ram Nath was earlier filed in support  of  the last  allegation.  The appellant now filed an  affidavit  by Iqtedar Hussain in support of his affidavit about the second disappearance of Kaniz Fatima.     Mahesh Prashad thereupon filed an affidavit in rejoinder by which he reiterated that he was married to Mst. Ram  Rati but alleged that he had divorced her according to the custom of the caste and that Ram Rati had remarried and was  living with  her husband.  He alleged that his marriage with  Kaniz Fatima  had  taken  place in  the  presence  of  respectable persons   of  the  locality  and  that  the  story  of   the disappearance  of  Kaniz  Fatima  was  false  and  she   was illegally and improperly being detained against her wish  by the appellant.     On  this material the High Court passed the first  order on  August  26, 1960.  From that order it appears  that  the High  Court did not enter into any question of  fact  except the age of Kaniz Fatima.  The High Court held that if  Kaniz Fatima was a minor no       93 habeas corpus application would lie because the father would be  the  guardian  but if Kaniz Fatima was  major  then  the application  was  competent and Kaniz Fatima  was  the  best person  to  judge  for herself where she  would  live.   The learned  Judges were of the opinion that the  issue  whether Mahesh  and  Kaniz  Fatima  were  married  was  not  at  all relevant.  The age of Kaniz Fatima was taken by the  learned Judges  to be 19 years in view of the result of the  medical examination  and  holding  that she was  major  the  learned Judges  addressed themselves to what they described  as  the main  question:  Whether the appellant had Kaniz  Fatima  in his  control  ?   In  this  connection  the  learned  Judges referred  to the undertaking given by the appellant  to  the police  to  produce  Kaniz  Fatima  whenever  required   and observed  that  it  was his duty to keep a  watch   on   her movements.   Finding that there was no date mentioned in the affidavit regarding her second disappearance they ordered  a fresh  affidavit to be filed.  That affidavit was  filed  on the 11 th August 1960 and was supported by the affidavit  of Iqtedar  Hussain of the same date.  We have referred to  the contents of these documents.  The learned Judges pointed out that the appellant’s conduct was somewhat strange because he had  neither  reported  the second  disappearance  of  Kaniz Fatima  to the police nor informed the Magistrate  in  whose Court the criminal case was pending about it.  They were  of opinion that it was also very unlikely that Kaniz Fatima who had  brought such troubles on her head by running away  from home  would leave the house for the second time without  the connivance or aid of someone, and they concluded that person could  be  none  other  than her  father.   They  took  into

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consideration  that  the appellant had denied  the  fact  of marriage and conversion to Hinduism on the basis of personal knowledge  when this could only be on  information  received from  Kaniz Fatima and had further sworn an affidavit  about the  state  of mind of Kaniz Fatima immediately  before  her second disappearance which he could not have known unless he was present personally.  Holding, therefore, that 94 Kaniz  Fatima  was  not  minor and  the  petition  could  be proceeded  with,  they made an order for the  production  of Kaniz Fatima in Court.     The  appellant did not produce the girl in obedience  to the  direction  of the High Court and the second  order  was passed  committing  him for contempt and sentencing  him  as stated  already.   In these appeals both  these  orders  are challenged.   Against the first order it is  contended  that the  High Court was in error in ordering the  production  of Kaniz Fatima, acting on the affidavits of Mahesh which  were patently  false.  Against the second order, it is  contended that  it was impossible for the appellant to carry  out  the Court’s order because Kaniz Fatima was not with him and  her whereabouts were not known to him and that the committal for contempt  and  the  punishment  imposed  were   unjustified. Lastly, it was urged that the sentence was too heavy.     From  what we have stated above it will appear that  the action  of the Court is questioned on two connected  but  in essence entirely separate matters.  The disobedience of  the order  of the Court entailing punishment for contempt  is  a very  different matter from the action taken in  the  habeas corpus  petition.   The  order of  commitment  for  contempt presents   no  difficulty.   Even  if  the   direction   was inexpedient,  an  order  had been made  for  bringing  Kaniz Fatima  before  the  Court and it had to  be  complied  with unless the appellant could plead and prove his inability  to comply  with it.  The question whether the Court  ought,  on the  materials  present before it, to have called  upon  the appellant to bring Kaniz Fatima in Court is something  which does  not  enter into the obedience of the  order  made.   A direction  given  by the High Court in a  proceeding  for  a writ.  of habeas corpus for the production of the body of  a person has to be carried out and if disobeyed the  contemner is  punishable  by  attachment and  imprisonment.   A  valid excuse  will, however, be that it is impossible to obey  the order. 95     We  have  heard Mr. N.C. Chatterjee in  support  of  the contention  that the appellant did not know the  whereabouts of Kaniz Fatima and was unable to comply with the orders  of the  High  Court.  We are not satisfied that  the  appellant could  not have brought Kaniz Fatima before the Court.   His conduct  belies  his assertion that he did  not  know  where Kaniz  Fatima was.  When Kaniz Fatima disappeared  for’  the first time the appellant lost no time in making a report  to the police and the efficiency of the police was demonstrated by the discovery of Kaniz Fatima within two days.  If  Kaniz Fatima  disappeared a second time the appellant,  unless  he knew where she had gone, should logically have enlisted  the support of the police immediately.  There would, of  course, be  no point in reporting to the police if  the  whereabouts were  to be kept secret because the police might have  found Kaniz Fatima thus proving the report to be false.  If  Kaniz Fatima  disappeared  in mysterious circumstances  it  should have  occurred  to  the appellant that  perhaps  Mahesh  and Sudama  whom she had charged with abduction and  rape  might have  had a hand in her second disappearance and  then  what

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better  move  was open to the appellant than to  go  to  the police?   It is not his ease that he got disgusted  and  let Kaniz Fatima go her own way.  He started a search for her on his  own  and  his son and brother visited  the  houses   of relatives in Allahabad and his son went to Faizabad to  make enquiries  there.  It is clear that, on his own showing,  he was  anxious to find Kaniz Fatima and spared no  efforts  to find  her but he did not enlist the support of  the  police. This  as stated already was very surprising because  on  the first  occasion the police had found Kaniz Fatima almost  at once and restored her to him.  The conclusion is inescapable that he avoided the police this time.  Again the High  Court is  right in thinking that Kaniz Fatima who had a  harrowing experience  would  not  venture out a  second  time.   Kaniz Fatima  had stated that she had got lost when she  left  the house  on the first occasion and that she did not  know  her way in the town as she had always travelled in 96 a closed rickshaw.  It would be very unlikely that she would venture  out  a second time.  It is not suggested  that  she left the house to do away with herself or to go away on  her own.  These possibilities have not been canvassed before us. Of   the  two  alternatives  which  might   have   suggested themselves namely that she had left the house to go to  some relative  or  was taken away by Mahesh and  Sudama,  neither came in the  way of  making a report to the police.  But  if the  appellant knew where Kaniz Fatima had gone and was  not anxious that her whereabouts should be discovered the report to  the  police  would not be made.   The  excuse  that  the appellant  was saving himself from scandal  and  humiliation cannot appeal to anyone because there was enough of  scandal and humiliation already and little could be added to it. The High  Court’s conclusion that the appellant  was  harbouring Kaniz Fatima and keeping her hidden was impeccable.     In these circumstances, we are of opinion that when  the Court  did make an order for the production of Kaniz  Fatima even  if another court would have taken some other steps  it had  to  be  carried out unless it was  impossible  for  the appellant  to  comply  with it.  In  our  opinion  the  High Court’s  commitment for contempt was justified  because  the High Court rightly reached the conclusion that the appellant having the knowledge of the whereabouts of Kaniz Fatima  and having the custody of her through another, was wailfully and deliberately  disobeying the direction of the Court.  In  so far  as  the offence of contempt is concerned  there  was  a manifest disobedience of the order and the High Court  could punish  it  brevi  manu  by ordering  the  appellant  to  be detained  in prison. The High Court’s powers for  punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record.  The learned  Judges were perhaps in error in describing it as contempt in  facie curiae.   That  is contempt of a different sort.   This  was contempt by disobedience of an order of the High Court which is sometimes a civil contempt 97 punishable under the Code of Civil Procedure and sometimes a criminal  contempt  punishable by  imprisonment.   The  only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act  which limits the term for which a person can be imprisoned to  six months simple imprisonment.  The High Court was justified in punishing  this contempt.  In view of the grossness  of  the contempt  it  cannot be said that the  punishment  of  three months  simple  imprisonment was  excessive.   We  therefore decline  to interfere with the order of September 16,  1960.

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Criminal  Appeal  No.  227 of 1960  against  that  order  is dismissed.     The first order by which Kaniz Fatima was ordered to  be brought into Court was questioned on the ground of  want  of jurisdiction  and for irregularity in the exercise  of  that jurisdiction.  The High Court acted with jurisdiction.   The writ  of  habeas  corpus issues not only  for  release  from detention  by  the State but also for release  from  private detention.   At  Common  Law a writ  of  habeas  corpus  was available  to the husband for regaining the custody  of  his wife  if  she  was wrongfully detained by  anyone  from  him without her consent.  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  order  for inexpediency  is not the same thing as irregularity and  all that  has  been  pointed out is that the  High  Court  acted without  sufficient enquiry and deliberation.  We shall  say something  about  this  because this  criticism  is  perhaps justified.     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 s. 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 re- 1 SCI/64--7 98 course  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.  It is  of course   singularly   inappropriate  in  cases   where   the petitioner  is  himself charged with a criminal  offence  in respect of the very person for whose custody he demands  the writ.     In the present case the police had before them a  report by the appellant that Kaniz Fatima had not returned home and on search the police found her in a house where she normally would  not  be found unless she went there  herself  or  was carried there against her will.  The police arrested  Mahesh in the house and examined Kaniz Fatima and her statement was as follows:                     "  ..............................  I had               sat  for the High School Examination from  the               Hamidia  College,  Allahabad  this  year  i.e.               1960.  The result was out on the 17th of  June               1960.    I failed in the examination,  I  felt               much depressed, as it was at my instance  that               my parents had sent me to study in the school.               On  my having failed, my parents often  passed               sarcastic  remarks at me. I felt much  grieved               and  made  up my mind to leave the  house  and               move  away  for some time to the house  of  my               aunt (mother’s sister) named Sardar Begum, who               was  married  to Shri Ziarat Hussain  and  was               living  at Rani Mandi.  Therefore, I  left  my               house  for Rani Mandi in the very early  hours               as  I had been to Rani Mandi on  the  screened               rickshaw   from   my  house   several   times,

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             therefore, I thought that I would find out  my               way.   As  I had left the  house  without  the               knowledge of my parents, hence I had no  money               with me even to hire a rickshaw to go to  Rani               Mandi.  I was proceeding for Rani Mandi when I               lost the way and when I could not find the way               99               to  Rani  Mandi  even after  covering  a  long               distance, these two men Mahesh and Sudama  met               me in the way.  1 inquired from them about the               way. Thereupon Mahesh told me that they  would               lead  me  to Rani Mandi. Having  pretended  to               take me to Rani Mandi Mahesh fraudulently took               me to that house in Gujrati Mohalla from where               I  have  been  recovered.    In  addition   to               Mahesh, his companion  Sudama was also  there.               Being  pushed  in, I was thrust in  the  house               from where I have been recovered.  Since then,               I have been kept in concealment in that  house               against  my  will up to this  day.  They  have               committed  the bad act with me by  force.   My               age  is about 15 or 16 years. 1 don’t know  my               age in the college register." Later  Kaniz  Fatima stated in writing that  she  wanted  to return to the appellant.  Kaniz Fatima had described her age as 15 or 16 years and in view of her allegation that she was compelled to sexual intercourse and brought to the house  by a  trick,  offences under ss. 363,366 or 368,  Indian  Penal Code,  depending on her age, and s. 376, Indian  Penal  Code were  alleged against Mahesh.  If Kaniz Fatima was below  18 years of age there would be an offence under s. 368,  Indian Penal  Code  at  the very least unless she  was  married  to Mahesh   because   Mahesh  admitted  that  he   had   sexual intercourse  with  her.   In  these  circumstances,  with  a prosecution pending against Mahesh the learned Judges  might well  have  satisfied themselves first about the  factum  of marriage  and the age of the girl with more  circumspection. A  writ of habeas corpus at the instance of a man to  obtain possession of a woman alleged to be his wife does not  issue as a matter of course.  Though a writ of right, it is not  a writ of course especially when a man seeks the assistance of the  Court to regain the custody of a woman. Before a  Court accedes  to  this request it must satisfy  itself  at  least prirna  facie that the person claiming the writ is  in  fact the  husband and further whether valid marriage between  him and the woman could at all have taken place. 100     In the present case Kaniz Fatima was stated to be  under the age of 18.  There were two certified copies from  school registers  which showed that on June 20, 1960 she was  under 17  years  of  age.  There were also the  affidavit  of  the father  stating the date of her birth and the  statement  of Kaniz  Fatima  to  the police with regard to  her  own  age. These amounted to evidence under the Indian Evidence Act and the  entries  in the school registers were made  ante  litem motam.   As against this the learned Judges apparently  held that Kaniz Fatima was over 18 years of age. They relied upon what  was  said to have been  mentioned in a report  of  the Doctor who examined Kaniz Fatima, though that report was not before them.  Reference to it was made in the affidavits  of Mahesh  and the Sub-Inspector  which were both  hearsay  and not  admissible  under  the Evidence Act  in  proof  of  the contents  of a document.  The primary  documentary  evidence ought  to have been summoned.  The High Court  thus  reached the  conclusion  about  the majority  without  any  evidence

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before  it  in  support  of it and in  the  face  of  direct evidence against it.     With regard to the marriage, the learned Judges referred to  the denial by the appellant on personal  knowledge  that conversion to Hinduism or marriage had taken place but  they did  not look into the affidavits of Mahesh himself  on  the subject.  These affidavits create some doubt.  Mahesh stated that he first met Kaniz Fatima on the 25th October, 1959 and that they fell in love with each other and decided to  marry but "there were hurdles in their way" and marriage with  the "consent  of  their respective parents  became  impossible". Ram  Nath’s affidavit (part of which even  Mahesh  accepted) showed  that  Mahesh’s father was dead and  his  mother  had remarried.   There  would have been very  little  difficulty with regard to his parents, if there were any.  The question of  the consent of the parents of Kaniz Fatima never  arose. The  marriage  surprisingly enough was said  to  have  taken place  two  months  after the first  meeting  and  the  date mentioned was Dec. 25, 1959.  The 101 affidavit of the appellant was that 25th December, 1959  was a  holiday  and  Kaniz  Fatima was  with  him  and  that  no conversion  or  marriage  had taken  place  that  day.   The appellant’s affidavit on personal knowledge that no marriage had  taken  place  was therefore a  proper   affidavit.   It could not be  stated that he could not swear to such a  fact on personal knowledge.  The affidavits of Mahesh filed  from time  to  time showed contradictions which  apparently  went unnoticed.   In his first affidavit filed with the  petition he  stated  that  Kaniz Fatima and he  had  decided  to  get married  "secretly" and that the marriage was  done  without the knowledge of the parents of either party to the marriage and  that  he  and Kaniz Fatima  met  after  marriage  "only clandestinely".   In  another affidavit he stated  that  the marriage  took  place  "at the residence  of  the  applicant amidst  the  respectable  persons of  the  Mohalla  and  the community" which could hardly be called a ’secret’ marriage. In  the  same affidavit he also stated that  since  marriage Kaniz  Fatima and he "were living together and cohabited  in the  aforesaid  premises" and that it was  only  "after  the lapse of four months" that Kaniz Fatima was taken away  from his  house.  His exact words have been reproduced  from  his affidavits.   This  contradiction  was pointed  out  in  the affidavits of the appellant but the learned Judges  declined to go into it because they were of opinion that the question of  marriage  and  other questions  arising  therefrom  were irrelevant.   The learned Judges did not see that  even  the eligibility  of Mahesh to marry Kaniz Fatima was  called  in question  because it was alleged on affidavit that he had  a wife  already  living.   Under ss. 5 and  11  of  the  Hindu Marriage  Act  (XXV  of  1955) a  second  marriage,  with  a previous  married  wife living, is null  and  void.   Mahesh admitted  that he was previously married but he stated  that he  had  divorced his wife according to the  custom  of  the caste  and that his former wife married another  person  and was  living with him.  The learned Judges referred to  these facts  and  merely stated that as he was a Kori  or  Kachhi, divorce was possible but did not try to 102 ascertain  whether  divorce  as  alleged had taken place  or not.     These  were  some of the  circumstances  which  remained undetermined  when the Court ordered the production  of  the girl  in Court.  There is no doubt that the proceeding is  a discretionary  one.  Whether the Court feels satisfied  with

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one  affidavit  or with another is a matter  mainly  of  its opinion  and conviction. The learned Judges must  have  felt impressed  by  the affidavit of Mahesh,  because  there  was nothing  else before them in support of his  version.   They did  not ask him to produce affidavits from the  respectable persons  of  the  "Mohalla and community"  before  whom  the marriage and conversion was said to have taken place or even to  produce  the photograph which he asserted was  taken  of Kaniz Fatima and himself by a photographer,  Inspite of this if  they ordered the production of Kaniz Fatima  they  acted with  jurisdiction.  Even if some other person may  consider the  order  inexpedient,  the order had to  be  carried  out unless  it was impossible for the appellant to  comply  with it.  For his refusal to comply with it he has been  punished and we need express no sympathy with him but we cannot  help expressing  a sense of doubt about the truth of some of  the statements of Mahesh in his affidavits.     In  our  opinion  the writ nisi in  this  case  for  the production of Kaniz Fatima should have been preceded by some more  enquiry.  It is wrong to think that in  habeas  corpus proceedings the court is prohibited from ordering an inquiry into a fact.  All procedure is always open to a Court  which is  not  expressly prohibited and no rule of the  Court  has laid down that evidence shall not be received,  if the Court requires  it.   No  such absolute rule was  brought  to  our notice.   It may be that further evidence would  have  borne ’out  what Mahesh stated and then the order could always  be passed  for  the  production of Kaniz  Fatima;  but  if  the evidence did not bear out what Mahesh alleged then the order which the appellant disobeyed and for which he has to suffer 103 imprisonment  would  never have been  passed.   The  learned Judges failed to notice that Mahesh’s affidavit was that she was  pregnant ’for 6 months and not as they state  that  she ran away early in June 1960 because she became pregnant.  It would  be difficult to hide such an advanced pregnancy  till June 20, 1960 when she, left the house.     It  remains  to mention that Mahesh made  several  other wild assertions which he swore on personal knowledge of whom a few are quoted here as illustrations:                      ".................   They in fact  want               to   marry the deponent’s wife to some  person               belonging to their own community and religious               order, knowing it full well that the  deponent               has legally wedded Smt. Kaniz Fatima and  both               of  them were living together as  husband  and               wife."                      "That the parents of the deponents wife               wish  to  procure abortion of  the  conception               which  she is presently carrying  and  thereby               cause  criminal  mischief  to  the  deponent’s               married life and happiness and marry her again               to  some  other  person  of  their  caste  and               community and religious order."                      "That  the deponent further  apprehends               that  the police of police station Kotwali  in               league with the parents of the deponent’s wife               are   detaining   her  against   her   wishes,               illegally  and forcefully with a view  to  use               her for immoral and  criminal inter-course and               purpose." These  statements  some of which could not be  true  to  his personal knowledge went without comment.     The  aftermath  may now be mentioned.   Mahesh  did  not appear  in  this Court.  The notice issued  by  the  Supreme

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Court  to Mahesh was returned with the endorsement  that  he had left the house without leaving an address behind.  As  a result  of  these proceedings, we were informed  the  police dropped  the criminal case.  The petition for habeas  corpus was not renewed or pressed again in the High Court.   Mahesh apparently  ceased  to take any interest in this  case,  his wife 104 and his child for whose safety he was so solicitous.  Mahesh saved himself from penal consequences if his act in any  way had amounted to a crime, and the appellant in trying to save his  daughter  from  him overreached  himself  and  suffered penalty under the law.     The  High Court relied upon certain cases and  Mr.  N.C. Chatterjee attempted to distinguish them. The cases referred to  by  Mr. Chatterjee were The Queen  v.  Barnardo(1),  The Queen  v.  Barnardo(2),  and Thomas John  Barnardo  v.  Mary Ford(3).   We do not consider it necessary to refer to  them because  the principles on which a person is  released  from private detention and custody are well settled and also well known.   The High Court can always order the  production  of the  body  of  a person illegally detained  and  can  punish disobedience  of  its order by  attachment  and  commitment. There  is neither doubt nor complexity in this  proposition, once it is held that the disobedience was wailful.     We pass no order in the other appeal but we hope that if Mahesh  renews the petition, the High Court will put him  to strict  proof  of  his allegations regarding  the  age,  the conversion of Kaniz Fatima and his marriage with her and his lack of interest in her welfare for over three years  before ordering a second  time that  Kaniz  Fatima be brought  into Court. Cr. App. No. 227 of 1960. Dismissed. Cr. App. No. 228 of 1960.  No orders passed (1) 23 Q.B.D., p.305.             (2) 24 Q.B.D., p.283.                  (3) [1892] A.C., 326. 105