Ananthanarayana Ayyar, J.
(1) The petitioner, Gandikota Subramanyam, has filed this petition under S. 491 Cr. P.C. praving to issue a direction in the nature of habeas corpus calling upon respondents 1 and 2 to produce the third respondent. Gandikota Swarajya -Lakshmi, before this court and to hand her over to the petitioner and pass such other orders as the Hon'ble Court may deem fit and proper.
(2) There are three respondents in this petition. The third respondent is the wife of thepetitioner. The first respondent is her mother and the second respondent is her father.
(3) One Kolachana Sitamahalakshmi, who has filed an affidavit in this case on behalf of the petitioner, has a son Kolanchana Srikrishnamurthy and a daughter, Pvdimarri Santha (R.1). The latter is married to Pvdimarri Mohana Krishna Murthy (R.2). The daughter of respondents 1 and 2 is Gandikota Swarajyalakshmi (R. 3) . Kolanchana Sitamahalakshmi's sister's son was living in Cherukuganuma in West Godavari District with his wife and children one of whom is the petitioer, Gandikota Subramanyam. on 21-10-1964 respondents 1 and 2 performed the mariage of their daughter (R. 3) to the petitioner at Palakonda in Srikakulam District. The ceremony of consummation of marriage was performed on 14-11-1964 at Palakonda in the house of respondents 1 and 2. The petitioner continred to live from then with the third respondent in the house of respondents 1 and 2 till he left that village for his native place on 22-11-1964. On that day the petitioner wanted to take the third respondent also with him to his house. But, all the same, he went away alone. The third respondent did not accompany him from her parents' house.
(4) On 9-12-1964, the petitioner went to the house of respondents 1 and 2 at Palakonda and took the third respondent from there with him to the house of his parents at Cherukuganuma with the consent of respondents 1 and 2. The third respondent's maternal grand-monther. Kolanchana Sitamahalakshmi, was residing in the village of Mudunuruupadu which was five miles from Cherukuganuma. On 12-1-1965. Sitha Lakshmi who is also the sister of the paternal grand-mother of the petitioner took the third respondent from the house of the petitioner to her parents at Palakonda. From then, the third respondent has ben living with her parents in their house at that place. The petitioner has been trying to take his wife (R. 3) to his house but he has not been successful. He, therefore, filed this petition for babeas corpus in this Court on 8-7-1965.
(5) The contentions of the petitioner in his affidavit are as follows. On 22-1-1965 he went to Palakonda to fetch his wife but the first respondent prevented him from taking her to his place, saving that she(R. 1) at his native village at the time of his sister's marriage which would take place on 11-2-1965. The petitioner wrote many letters to the first and second respondents demanding them to send his wife. The second respondent, i.e.,father of the third respondent, had written to him stating that he had to objection to send his daughter but in fact, he (R. 2) did not send her (R. 3) . The petitioner once again went to Palakinda on 27-4-1965 to get the custody of his wife but found no change of attitude in the first respondent. The petitioner understands that, against his will and wishes, the respondents 1 and 2 wanted to join her (R. 3) in some job. The petitioner further stated thus:-
' The custody of my wife in the hauds of the first respondent would be to the detriment of the interest of her daughter. On account of misconduct or inaptitude of the respondents, the moral welfare of my wife is being endangered.'
(6) The third respondent filed a counter in which she mentioned to the following effect. In the night of nuptials at Palakinda, the petitioner ill-treated her cruelly by dragging her by the hair. Even when she (R. 3) was in the petitioner's house, his people used to abase her and he was beating her on some pretext or other. For her keeping with her the amount of Rs. 100 . which her grand-mother Sitha Mahalakshmi gave for the journey expenses of the members of her husband's family to go to her father's house for the Sankranthi of 1965 the petitioner beat her violently called her names, took the money from her and asked her to sign on blank papers to enable him to obtain a divorce. She apprehends great suffering, insults and even death if she goes back to him. She is, therefore not willing to go back to her husband's house. She further stated as follows:-
'It is not true to say that my parents ever induced or are now inducing me not to go to my husband's house. On the other hand, they triedto persuade me on a number of occasions to go back to my husband.'
(7) The second respondent filed a counter stating various facts as follows. It is true that the nuptials function was performed on 14-11-1964. It was reported by the petitioner on the next morning that the third respondent resisted all attempts at intercourse while the third respondent complained that the petitioner had beaten her and dragged her by the hair. Even from that time, the relations between the petitioner and thethird respondent were strained. The petitioner seems to have beaten the third respondent and taken from her the money of Rs. 100 which had been given to her by Sithamahalakshmi. After Pongal, on receipt of a letter from the petitioner the second respondent wanted to send back the third respondent but she (R. 3) refused to go saying that she was cruelly treated by her husband's family that her husband was frequently beating her and that therefore, she would never go back while alive. Therager, respondents 1 and 2 made many attempts to send her back; but all those attempts failed. They tried again and again to send her back but she was adamant and theratened to kill herself before reaching her hisband's place. This was the reasonfor the third respondent beng permitted to remain in their house. The second respondent and the first respondent have absolutely no objection if the petitioner can take the third respondent away amicably to his house. The Second respondent further stated thus:-
'We are only anxious that she should not be taken by ofrce as we apprehend she may end her life if she is taken by force.
I have no objection to bring the third respondent to Court. If she is willing to go and live with the petitioner no one will feel happier than myself and my wife.'
(8) The first respondent filed a counter affidavit adopting the counter - affidavit of the second respondent. In particular, she stated as follows:-
'I further submit that myself and my husband (Rm2) will be glad if the petitioner and the third respondent live amicably in the petitioner's place. I have absolutely no objection to her going and living with the petitioner. But I am anxious that she should not be sent there by use of force as I apprehend that she will end her life if she is taken away by force.'
(9) The petitioner filed a reply affidavit as follows: The third respondent is incompetent to give an affidavit as she is a minor and hence it is not entitled to any consideration by this Court. The relations between the petitioner and the third respondent from the time of thir marriage have been very smooth and ideal. The nuptials went on as if ought to have been. The petitioner was offered a sum of Rs. 100 by the second respondent towards clothes for Sandranthi of the year 1965 and not towards the railway expenses as alleged. It is false that he had beaten the third respondent and taken the said amound. The allegation that the third respondent refused to go to him saying that she was being treated cruelly at his place is a self-serving statement and it is uncorroborated by any testimony. The allegation that the third respondent refused to return to him as he had treated her cruelly is untrue and what the third respondent has been made to state about beating etc. is purely a version tutored by respondents 1 and 2. The third respondent has no judgment of her own and has been under the control and influence of her parents all these months.
(10) The petitioner filed five affidavits in support of his case. Three of the deponents are residents of Cherukuganuma who were neighbours of the petitioner. They stated that the third respondent was treated well in the house of the petitioner during her stay there. The fourth deponent is the mother of the first respondent and the fifth deponent is the brother of the first respondent.
(11) The petitioner also filed some documents. The respondent filed several letters written between the parties.
(12) The welfare of the third respondent and also of the petitioner is of paramount importance and it will be best ensured by a preservation of the marriage and ecsuring a union with consent of both parties. There is very likelihood of the marriage being preserved and the parties getting reconciled in course of time, the parties being young and having plenty of time before them. So, we refrain from making a detailed discussion of the various affidavits and documents filed on behalf of both the parties. We do not express any final opinion about the truth of comparative merits of the contents of the affidavits including those of the pdetitioner and the respondents as we want to avoid worsening of feelings between the petitioner and the third respondent and reducing or delaying the chances of quick reconciliation.
(13) In conformity with the offer of the second respondent in his affidavit, he brought the third respondent to Court. We interviewed the third respondent in the presence of the second respondent and the petitioner and the Advocated on both sides in Chambers. We found the third respondent to be vey quiet and modest. She expressed unwillingness to go and live with the petitioner saying that she afraid to go back and live with him. On that occasion, the second respondent stated that he had no objection if the girl is young but, all the same, not an infant. She is capable of thinding for herself and understanding things. In the counter-affidavit of the second respondent, it was stated that the third respondent would be completing the eithteenth year in December, 1965. If that were true she must have attained majority by now. The petitioner, in his reply affidavit, stated that the date of birth of the third respondent was 2-7-1948 and supported that statement by filing a certified copy of the birth extract. This statement of the age is accurate and correct: it is supported by the birth extract and has been accepted by the learned claiming any right over the third respondent as guardian of a minor wife though he may legitimately claim conjugal rights as a husband and take appropriate proceedings for such rights.
(14) The third respondent is an educated girl. Her grand-mother says in he affidavit that the third respondent has studied upto XI th Class in a High School. She also looks intelligent. One outstanding feature in this case is that there is no allegation against the moral character or conduct of either the petitioner or the third respondent. Apparently,each of them is of good charcter and moral conduct. The petitioner places high value on the benefit of being the husband of the third respondent. The third respondent also have evinced a desire thaat her marriage to the petitioner should subsist and not break. For in her affidavit, she has said with great unhappiness about being asked by the petitioner to sign on blank papers ot enable him to obtain a divorce. Obviously, she is against divorce and wants to preserve the marriage. It appears to us that there is every chance of this young couple who have got long life before them, to get reconciled and that this chance should not be put to unduerisk.
(15) At our instance, the Advocate on both sides took adjournments and made efforts to see that the third respondent lives with the petitioner. It was represented that the petitioner had joined duty in a job at Madras and had great hopes that the third respondent would go and live with the petitioner in Madras. Reconciliation has not been affected but is not beyond hope and is still possible in a reasonable time
(16) The learned Advocate for the petitioner has contended that respondents 1 and 2 were keeping the third respondent with them against her will. We are convinced from the affidavits and from the conduct of respondents 2 and 3 before us during our interview in Chambers that the only impediment in the way of the third respondent going to live with the petitioner is the unwillingness of herself and not any inducement by respondents 1 and 2 and that parents of the girl would be glad if she (R. 30 would willingly go and live with the petitioner. So far as respondents 1 and 2 are concerned, the position of the third respondent in the house of respondents 1 and 2 is that of a refugee who has sought asylum and not of a prisoner who is kept under constraint.
(17) The question is whether we woould issue a writ of habeas corpus for sending the third respondent by force against her will to live with the petitioner.
(18) The case of the third respondent is that the petitioner was cruel to her in the night of nuptials. It is supported to some extent by the affidavit of the second respondent who says that the girl complained of the cruelty to him on the morning next after occurrence. This is a matter which could be known to the third respondent directly and to the second respondent indirectly from the third respondent soom after the occurrence, at Palakonda, but could not be known to the neighbours of the petitioner who were living in Cherukuganuma and the mother and the brother of the 1st respondent. The petitioner denies the cruel treatment. But, his affidavit discloses an unmistakable tendency on the part of this young man to attach an exaggerated importance to his rights as a husband under the law and to his authority as a husband under the law and to his authority as a husband over his wife and to belittle the rights and feelings of a young girl who is a new wife.
(19) In his affidavit, the petitioner stated as follows:-
'Her charcter, behaviour and attitude is to be moulded by me either by kisses on by kicks, and hence under no circumstances can the respondent deprive me of the custody and possession of my wife.'
This assertion of a right to kick the wife, even though accompanied by a declaration that it was for the purpose of moulding the charcter, behaviour and attitude of the wife, is not a proper attitude or a happy expression or a noble sentiment. Nor is it calculated to inspire confidence in the mind of a scared young girl and induce her to go to live with him. It lends support ot the version of the third respondent about her having been cruelly ill-treated in the night of nuptials when he had a supreme opportunity of making a good impression on her and of making her happy and tenaciously attached to him. In his reply affidavit, the petitioner says 'the nuptials went on as it ought to have been! If the nuptials had gone as it ought to and does in normal cases, the permanency of the marriage and the eternal attachment of the couple towards each other would have been sealed and assured. But , it is obvious that in this particular case, something went wrong with the result that the third respondent has been averse to going and living with the petitioner. It is true that, all the same, the third respondent did go and live with him in his house during the period 9-12-1964. Even the petitioner's grand-mother, who has given an affidavit on his behalf has stated as follows:-
'Mr Subramanyam (Petitioner) used to treat his wife with immense love and affection. I found that the girl was not as free as ought to be in such healthy atmosphere. It might be due to her young age and new environment.' The grand-mother Sitamahalakshmi got an impression about the petitioner's treatment of the third respondent from whata she saw and was visible to her. But, she could not know how the petitioner treated the third respondent when he was alone with her (R. 3). It was obvious, even according to the grand-mother of the petitioner, that the third respondent was not happy when living with the petitioner in the latter's house. It is a good sign that the third respondent has once chosen to forget unpleasantness of experience of the nuptial night and went to live with the petitioner from 9-12-1964 upto 12-1-1965. She does not want the marriage to break or a divorce to ensue. So, there is every chance that, after some time she will forget all unpleasantness and go back to live with the petitioner again. We consider that it is not desirable that the feelings of his educated girl, who is capable of thinking for herself and understanding facts, should be utterly diregarded and that she should be taken by force to her husband from her parents's house.
(20) In his affidavit, the petitioner has stated as follows:-
'In order to determine whether the detention is legal or illegal should depend not upon the consent of the minor but on that of the lawful guardian.'
Whatever rights the husband may have against his wife by law he is bound to regard the feelings of his wife, even if she be a minor technically, with some conideration and respect. It is not as if a person is incapable of thinking and feeling until her nineteenth birthday and that,immediately on the attaining of her majority,wisdom suddenly dawns on her and feelings and powers of thinking suddenly come to her.
(21) In Subbaswami Goundan v. Kamakshi Ammal, AIRA 1929 ,Mad 834, the leaned Judges of the Madras High Court observed regarding custody of a girl of thirteen years as follows(at p 835):
'We questioned the wife in chambers and the conclusion we have come to with regard to her, and it is a very definite clear conclusion, is thata she has beeen tutored by the respondents. That appears to us to be beyond all question. When asked whehter she was willing to return to the petitioner she definitely and with a great show of resolution said that nothing could ever induce her to return and that she woould rather die than return to him. We are satisfied that in so saying she was not expressing her own opinion at all but that she was told to say this by her mother and respondent No 2 (step-brother of the girl).
If however this declaration of the wife that she was not willing to return to her husband were true, then we would have to consider what the duty of the Court is. Whilst it is quite unnecessary in our view of the circumstances to consider that position, we must state that we consider that in tha case of a girl of only 13 years of age her consent or otherwise is quite immaterial . What we would have to consider would be the welfare of the minor wife and in doing so the fact that she prefers to reside elsewhere than with her husband although had she been old enough to form a good opinion this would have been a very much or any weight at all.' The above observations themselves indicate that the statement of the third respondent in this case before us when we questioned herin the Chambers is entitled to great weight and consideration in view of her age, intelligence and education and that her position is materially different from that of the minor wife of 13 years who was concerned in that case.
(22) In Venkataramaniah Chettv v. Papamah. AIR 1948 Mad 103 th above decision in AIR 1929 Mad 834 was folowed and it was held on the facts concerned therin the wife being aged only 13 years, that the order had to be passed directing surrender of th girl to the husband. It was alleged in that case that the mother of the girl had taken her from the husband's house and had broken a promise to send back the wife and was contemplating to leave for Rangoom. The leaned Judge observed at the same time that as the girl was admittedly a minor 'this court should have, as tha paramount consideration , her interest amd welfare'.
(23) In Rama Iyer v. Nataraja Iyer, AIR 1948 Mad 294 the child was of the age of thirteen years and it was held thaat he could not be said to be able to form an intelligent preference particularly in a matter relating to his custody agaiinst the wishes of his natural parents.
(24) In Bhola Nath v. District Magistrate, it was observed by the Punjab High Court as folows (at p. 238):
'Ordinarily no doubt the basis of the issuance of a writ of habeas corpus is an illegal detention but in the case of a writ issued in respect of the wife or the child, the law is not so much concerned about the illegality of the detention as the welfare of the person detained.'
In that case, two minor girls were abducted from the house of her parents by certain person. They were recovered by the police and sent to Rescue Home. The father of the girls prayed for a writ of habeas corpus for their being produced in Court and being set liberty. The Punjab High Court held on facts as follows:-(at p 238)
' The power of this Court in granting writs is not unqualified, but is to be used in the exercise of a sound discretion.
The writ of habeas corpus is, no doubt, a writ of right but not a writ of course. It is a constitutional right of a person to demand the writ, but it does nto necessarily imply that the warit must issue in all cases. The issuance of a writ of habeas corpus is within th jkudicial discretion of this Court. This Court may grant a writ 'whenever it thinks fit'. The provisions of S.491make it abundatly clear thaat the power is discretionary.
The paramount consideration in all such cases nust be the welfare of the minor'.
Finally the learned Judes concluded as follows:-(at p. 239)
'Ordinarily, the Courts are reluctant to supersede or interfere with the rights of a parent over his minor children, but in the extraordinary and unusual circumstances in this case the petitioner cannot be trusted for the safely and the well-being of his daughters.
......This petition ought not to succeed and it is, therefore dismissed'.
(25) In his affidavit, the petitioner has relied on his right under the law as guardian of his minor wife to a great extent. He has stated as follows:-
'That, under Hindu Law,upon the marriage of his minor daughter, the father cease to be her legal guardian and her husband becomes her legal guaardian and under S. 6 of the Hindu Minority anad Guardianship Act 32 of 1956, in the case of minor married girl, husband is the guardian........As the respondents, who are not legal guardians of the 3rd respondent refused to make over my wife to me there is illegal detention of the minor within the meaning of Section 491.Cr. P.C.'.
(26) The learned counsel for the petitioner relies on the decision of the Supreme Court in Gohar Begum v. Suggi, : 1960CriLJ164 . In that decision, the relevant facts were as follows: One Gohar Begum had several illegitimate children including a daughter by name Anjum by an exclusive paramour called Trivedi. Gohar Begum had allowed her maternal aunt, Kantiz Begum to take Anjum with her to Pakistan. Afer Kaniz Begum returned to India from Pakistan with Anzum, Goher Begum asked Kaniz Begum to restore the child to her (Gohar Begum) but Kaniz Begum refused. So, Gohar Begum filed a petition for Habeas Corpus. At the date of application, Anjum was less than six years old. She was just over seven years when their Lordships of the supreme Court made a direction to Kaniz Begum and others to make over the custody of Anjum to her mother. Their Lordships quoted with approval the following passage from R. v. Greenhill, (1836) 111 E.R. 922 at p 927, 'when an infant is brought before the Court by Habeas Corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody'. Their Lordships observed as follows: (at o 96)
'The Englich principles applicable to the issue of a Writ of Habeas Corpus, therefore, apply here . In fact, the Courts in our country have always exercised the power to direct under S. 491 in a fit case that the custody of an infant be delivered to be applicant'.
On the facts of that particular case, their Lordships found that it was a fit case for directing the custody of a little girl of seven years to her own mother in preference to being kept by the girl's mother's mother's sister.
(27) On the facts of the present case, we have to decide as to whether this is a fit case for ordering delivery of custody of the third respondent ot the petitioner. We have also got to see whether the third respondent is of an age to exercise a choice and whether the direction prayed for by the petitioner if granted will expose the third respondent to dangers or seductions. In the case, wew interviewed the thierd respondent the petitioner and their Advocates. We find that she is an intellignt and educated gtirl waho is capable of thinking for herself and that she is not exposed to any dangers or secductions or to any underiable company. She will be attaining majority on 2-7-1966 and as time goes on there is every chance of her forgetting any unpleasantness that might have once happened and going willingly back to her husband. If she were delivered to the petitioner now against her will be can take her away by force and keep her with him by force as a guardian upto 2-7-1966. From that date, he cannot exercise the right of custody as a custody as a guardian over the third respondent towards him would have become more embittered and the chances of reconciliation and happy married life with mutual affection would become more remote. If the petitioner captures the body of his wife through a writ or process of court without winning her mind, it will be ultimately detrimental to the interests of himself and of his wife. On the other hand, if he avoids hasty action but adopts a tactful and patient approach and wins her mind through affection and goodwill, he can attract her to himself and enure for himself and his wife permanent happiness in wedlock. We consider that, in the interest of the petitioner as well as the third respondent ,it is not desirable to pass an order of habeas corpus directing physical delivery of the third respondent to the petitioner.
(28) We, therefore, dismiss this petition.
(29) Petition dismissed.