1. A writ of habeas corpus issues not only for release from detention 'by the State' but also for release from 'private detention'. Where common law prevails, a writ of habeas corpus is generally availed of by husband for getting back the custody of his wife, if she is wrongfully detained by anyone without her consent. What amounts to wrongful confinement or detention of the wife is a question which invariably varies from case to case and it is for the Court to decide in each case considering the circumstances either entitling or disentitling the husband to the custody. Demand of the writ at the instance of a husband is very rare in English Law. In India as well the writ of habeas corpus to regain custody of wife is rarely availed as ordinarily a husband regains his wife's custody Under Section 97 of the Criminal Procedure Code, 1973, if the taking away amounts to an offence. If, on the other hand, the taking away does not amount to an offence the doors of the Civil Courts are wide open for granting relief for restitution of conjugal right. In civil and criminal action all issues of fact as well as law can be tried. So in India a writ of habeas corpus is not insisted upon as it is pretty difficult, on the basis of affidavit and other material, to decide the disputed questions of facts. Perhaps these are the reasons why the writ of habeas corpus is 'festinum remedium' and this power can only be exercised only when it is absolutely a clear and urgent case. Where a respondent admits that the wife is in his custody, that she is the legally married wife of the petitioner that the detention of the wife was against her consent and that the petitioner is entitled in law to custody of the wife then and then only, on such clear cases writs of habeas corpus may issue. However, there may be other exceptional cases with which we are not concerned in the present application. Ordinarily in contested matters parties are asked to obtain relief in appropriate civil or criminal court.
2. One thing for sure, that in this writ application by husband for the
custody of his wife the respondents have denied the legality and validity of the marriage. They have also denied that the woman is in their custody or in the custody of any one of them. Therefore, the validity of the marriage has been impugned. But there is marriage certificate, which is deemed to be conclusive proof under Section 13(2) of the Special Marriage Act, 'the Act' for short. However, the respondents have stated inter alia, that the woman was a minor at all relevant time and the provisions of 'the Act'' were not complied with. We are not to resolve these questions but we state this much that it is not that clear and simple case of illegal detention of the legally married wife of the petitioner as the validity and legality of marriage have been questioned bv the respondents.
3. Let us skip over the problems and consider the other facets of the case. The necessary prerequisites for issuance of a writ of habeas corpus is the detention of the girl 'against her will.' In the instant case it has been conceded by the learned counsel for the petitioner that there is no averment made anywhere in the petition that the girl was or is in any detention 'against her will.' It has been recently ruled by the Supreme Court in Madhu Bala v. Narander Kumar, AIR 1932 SC 938 that in the event of detention of a manor woman with her full consent disentitles the court to issue writ of habeas corpus. However, in that case the girl appeared before the Supreme Court and clearly and unequivocally staged that she was not being detained bv her parents 'against her will' and she did not want to g to the first respondent.
4. Be that as it may, today the learned counsel appearing on behalf of the petitioner states that the woman in question was at all relevant times residing with Shri Tulsi Upadhaya, eldest brother of the woman and that she is in Nepal. The said Tulsi Upadhaya is not a party respondent. Learned counsel for the petitioner submits that now they are in possession of the correct address of the person who is holding back the woman, so it would not be difficult for the petitioner to continue with the criminal case, which is now pending against respondents 1, 2 and 3 being Jhalukbari p. S. Case No. 136 (5)/82. In that case the petitioner had approached the District Magistrate to issue process
Under Section 97 of the Criminal Procedure Code for the production of the woman and obtained a process for the recovery of the woman and the police searched the house of the present respondent but could not find her. Naturally so, as the woman Gunawati had already left for Nepal and was residing with Tulsi, her eldest brother. Learned counsel for the petitioner submits that they can now go to the police and/or the learned Magistrate to obtain process Under Section 97 of the Criminal Procedure Code. Accordingly, when the said relief is now readily available to the petitioner, this application is not pressed. However, the learned counsel for the petitioner prays for some directions from this court.
5. For the reason set forth above, we dismiss the writ application, however, we direct the police and/or the learned Magistrate dealing with the aforesaid criminal case, to make every endeavour to find out the girl provided the petitioner furnishes the name of the person who has kept Gunawati in his custody as well as his correct address and if she is in detention against her will.