Shiv Dayal, J.
1. This petition for habeas corpus was made by Ramsewak, father of Smt. Shantibai, alleging that the girl, a minor, was married to Nirpatram in 1962; that Nirpatram treated her with cruelty and wrongfully confined her by putting a lock on the door of the house for about 20 days; that she was even denied food during that period; that he had caused several injuries on her person with sharp weapons and canes; that her condition was very serious because of Inhuman treatment; and that he received information about all this through an anonymous letter, the facts of which he personally ascertained. Then he approached the City Superintendent of Police, Jabalpur. Under his orders, the girl was recovered at village Lohar in a precarious condition with marks of injuries on different parts of her body. The girl was brought to Jabalpur on 10th September 1964 and after medical examination, her custody was entrusted by the police to her Jeth (brother-in-law) Gangaram. This petition was filed on the 19th September. Rule nisi being issued, Gangaram and Nirpatram appeared before us on 23rd September 1964. Smt. Shantibai was also produced. Her statement was recorded. Nirpatram's statement was also recorded. Thereafter, as a result of an endeavour for reconciliation, the parties made an agreed application. In accordance with it, the custody of the girl was entrusted to Ramsewak, her father, for a fortnight. The 7th October was fixed for further hearing.
2. When the parties appeared on the 7th October, Smt. Sbantibai expressed a desire to go back to her parents instead of her husband. It appeared to us that during those 15 days her mind was changed.
3. Smt. Shantibai is admittedly, a minor. Although her exact age is not clear, she is of about 16 years. For the purpose of the present proceeding it was not necessary to find out her exact age. There is also no doubt, and in fact it was conceded, that at least for about a month immediately before the petition, her husband, Nirpatrara, used to beat her. We noticed marks of injuries on her nock, head and forehead. In her statement of the 23rd September she said that she did not want to go back to her husband, nor, in that state of her health, she wanted to return to the custody of her Jeth. She expressed a desire to go with her father. She said that her Jeth and Jethani (Gangaram and his wife) are good persons and treat her well. Nirpatram asked her in cross-examination whether she wanted to go away from him for good, and whether she would not care to return to him, if he undertook in writing that he would not beat her in future. To this, the girl did not reply, she had only tears in her eyes.
4. Nirpatram, in bis statement of that date, said that the girl's father was at the back of the whole trouble. He added that at the instance of her mother, the girl started developing associations with a woman of doubtful character. He asked Suit. Shantibai not to visit that woman, but she disobeyed him. Therefore he beat her. He had, however, no objection to the girl going to her father for some time. In open Court he apologised to his wife with folded hand and promised never to repeat his folly.
5. These facts lead to the following conclusions : (1) The girl is a minor; Nirpatram is her legal guardian. (2) Very recently, Nirpatrara treated her with cruelty causing several injuries on her person. (3) Nirpatram does not appear to be a mats of bad character; nor was any such allegation made against him by the girl. Of late, he took to smoking Charas and, in all probability, it was under the influence of that Intoxicant that he entertained some suspicion in his mind for which he beat his 'wife. (4) We gathered an impression that the spouses loved each other very much. The quarrel between, the husband and the wife was not of a serious nature, although, from the marks of injuries, we found that the ill-treatment meted out by the husband was disproportionate to the lurking suspicion, (5) This is a fit case where reasonable opportunity should be given to the couple for reconciliation. (6) At the same time, it is not quite safe to entrust the Immediate custody of the girl to her husband. (7) We see no good reason for entrusting her custody to her father. To us he appeared unscrupulous. He would widen the gulf between the husband and the wife. Even earlier, he had spoiled his relations with his son-in-law. (8) Her Jeth, Gangaram is admittedly a good man. We put to him many questions. His answers and demeanour have convinced us that he is truthful and upright; sober and well-meaning.
6. The peculiarity of this ease is that the husband is accused of unlawful detention of his own wife. If the Court is satisfied that a wife is wrongfully confined by her husband, a writ will issue. In such proceedings, the Court is not concerned with the respective rights of the husband and the wife as such under the Hindu Marriage Act, 1956, or under the Hindu Adoptions and Maintenance Act. All that the Court is concerned with is to see whether she was kept in wrongful confinement or wrongful detention. One thing is certain that no law authorises a husband to compel his wife to live at any place against her will. It is clear law that the wife is at liberty to live wherever she wants to. The husband can pursue his legal rights in a Court of law, for instance, under the Hindu Marriage Act. Where a wife refuses to live with her husband, he is not entitled to imprison her or keep her in confinement, either for an illegal purpose, or even in order to enforce his rights as her husband.
The celebrated decision in The Queen v. Jackson (1891) 1 QB 671 was weighty in its significance. There, the husband justified the imprisonment of his wife by saying that ha was 'using no more force or restraint than was necessary to take her or prevent her returning to her relations; that she had perfect liberty in the full run of the house, short of leaving it; and...that he could lawfully use such restraint in order to have an opportunity of regaining the affection of his wife, which had become alienated from him.' This contention of the husband was emphatically rejected by the Court of Appeal and it was observed by Lord. Halsbury, L. C. (at page 680):
The husband's contention is that, whereas the Court never had the power to seize and hand over the wife to the husband, but only the power to imprison her as for a contempt for disobedience of the decree for restitution of conjugal rights, and even that power has been now taken away, the husband may himself of his own motion, if she withdraws from the conjugal consortium, seize and imprison her person until she consents to restore conjugal rights. I am of opinion that no such right exists or even did exist. Moreover, assuming that sufficient authority existed for such a proposition, it is subject in any case to the qualification which I observe is always imported that, where the wife has a complaint of or reason to apprehend ill-usage of any sort, the Court will never interfere to compel her to return to her husband.
So also In Place v. Searle 1932-2 KB 497 at p. 501, it was observed:
I am not concerned today with any question of ethics. Every good woman must wish to fulfil, if possible, her duties as a wife. But it seems clear that in law a married woman is free to depart when she wishes from her husband's house, He cannot prevent her from doing so and the law disclaims the power to do so.
Whatever rights the husband may have, he cannot enforce them by physical confinement; he cannot seize his wife when she attempts to leave the consortium and lock her up. A wife is, therefore, entitled to a writ of habeas corpus against the husband if she is wrongfully restrained by him against her will or he attempts to enforce his conjugal rights by keeping her in confinement or forcibly detaining her in his custody.
7. When the wife is brought, before the Court, and it finds that she has been wrongfully confined or detained, the only order it will pass is to set her at liberty; she is then free to so wherever she likes. But this is true of a person who has attained the age of majority. The position of the husband with regard to his adult wife is not that of a guardian with regard to an infant. But in the case of a minor wife, the law is somewhat different.
8. It seems to us clear law that (1) in a proceeding for habeas corpus, the basis of the issuance of a writ is illegal or improper 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 concerned-that is the paramount consideration. (2) 'Welfare', in the context, means that every circumstance must be taken into consideration and the Court must do what, under the circumstances, ought to be done in the true interests of the minor. (3) The underlying principle is to ensure the protection and well being of the person brought before the Court under the writ. (4) In issuing a writ of habeas corpus the Court has power in the case of a minor to direct its custody to be placed with a certain person.
9. In Queen v. Gyngell 1893-2 Q B 232, on an application by habeas corpus by the mother, who was the legal guardian of a female infant, aged about fifteen, for the custody of such infant, it was held by the Court of Appeal, affirming the judgment of the Queen's Bench Division, that the Court, although the mother had not been guilty of any misconduct to disentitle her to the custody of the child, would, if satisfied that it was essential for the welfare of the child, refuse to give the mother such custody. It is stated in 11 Halsbury (Simonds) 24 (Art. 41):
Where, as frequently occurs, in the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be Inquired into on the return of a writ of habeas corpus, and the custody awarded to the proper person.
In Goharbegum v. Suggi Begum : 1960CriLJ164 , their Lordships of the Supreme Court have said that the English principles applicable to the Issue of a writ of habeas corpus apply in our country and that, if the Courts did not have this power, the remedy under Section 491 of the Code of Criminal Procedure, would, in the case of infants, often be-come infructuous. See also the directions in Venkataramaniah v. Pappamah AIR 1948 Mad 103.
10. It is an argument that the girl should be allowed to BO with her father, the petitioner, because she is big enough to exercise a choice. Ordinarily, the choice of a girl of 16 or 17 years should be given effect to; but at least two things persuade us to hold that it will not be in her interest to go with her father. Firstly, her husband loves her intensely and he is repentant for his folly. The .girl also likes him very much although at the present moment she is disgusted by his ill-treatment, and her father has adversely influenced her mind against her husband. Secondly, of all the persons present before us, Ganga Ram (respondent 2) appeared to us to be the one to whom her custody could be safely entrusted and that will have a two-fold advantage. On the one hand, she will be protected against repetition of any ill-treatment from her husband; on the other hand, there will be every opportunity for reconciliation between her and her husband. In these circumstances, to allow the girl to go with her father would be to end, for all times, the chance for reconciliation. In The King v. Greenhill (1836) 111 ER 922 at p. 927, Lord Denman, C. J., said:
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.
In our opinion, the present case falls within the exception.
11. We, therefore, order as follows:
The custody of Smt. Shantibai is made over to Gangaram son of Sukhlal, her Jeth (brother-in-law) for one year from today subject to the following directions:
(1) Gangaram shall not make over the custody of Smt. Shantibai to Nirpatram, her husband, nor to any one else without obtaining a prior order from this Court, except to such person, if any, as may be appointed her guardian by a competent Court.
(2) Gangaram shall allow Nirpatam to visit Smt. Shantibai whenever she consents to such visit or visits of her husband,
(3) Gangaram shall be responsible that Nirpatram does not cause any bodily harm to Smt. Shantibai Gangaram has offered to maintain her at his own expense.
(4) Gangaram shall execute a bond that he shall comply with the above directions.
(5) Gangaram shall apply to this Court for further directions at least a week before the expiry of one year from today.
12. We ought to mention that on 7th October 1964, after hearing the parties and after giving the matter our anxious consideration, we announced our decision and intimated to the parties that our reasons would follow. The present order gives the reasons for our decision.