the Allahabad High Court last week observed that the use of the writ of habeas corpus at the request of a husband, seeking to take possession of his wife is not available naturally.
Dealing with the husband’s plea asking for the production of his wife, the judiciary of Judge Dr Yogendra Kumar Srivastava observed as follows:
“In view of the other remedies available for this purpose in criminal and civil law, issuance of a writ of habeas corpus at the request of a husband to win back his wife may not be available naturally and power in this regard can only be exercised when a clear case is established. “
Case in brief
Petitioner No.2 (wife) left her marital home during the month of June 2019 due to serious disputes with her husband (Petitioner No.1).
Subsequently, a request (currently pending) for restitution of marital rights was filed by the husband.
Further, claiming that during the month of November 2020, he received information suggesting that his wife was being held at the parental home and therefore he filed the instant habeas corpus plea requesting the production of the woman.
Observations of the Court
In this context, the Court noted that there was no evidence in the file to suggest that Applicant No.2 was forcibly taken away and that it was evident that his wife left her marital home on her own initiative in because of serious disagreements with her husband. .
Further, referring to the decisions of the Apex Court in the case of Mohammad Ikram Hussain v. UP State and others and Kanu Sanyal v. the magistrate of the district of Darjeeling, the Court observed that the writ of habeas corpus is a writ of prerogative and an extraordinary remedy and that it is a writ of law and not of a writ of course and that it may be granted only on the basis of reasonable cause or probable cause.
“The habeas corpus remedy at the request of a person seeking to obtain possession of a person whom he claims to be his wife would therefore not be systematically available.“, added the Court.
Finally, noting that in the facts of the case, applicant no.2 having left her marital home on her own because of a marital discord, the Court observed that the present application for habeas corpus on the order of the husband would not be entertaining.
Case title – Mohd. Ahmad and another respondent v. State Of UP and 4 others
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