1. This is a motion for Habeas Corpus for release of Beenakumari, stated to be the petitioner's wife, from the alleged unlawful detention by her parents, respondents Nos. 1 and 2. According to the petitioner he married Beenakumari on 14-4-1975 and Ext. A-1 agreement was executed and registered by them the same day. Ext. A-2 dated 18-4-1975 is an application filed by the 1st respondent before the Chief Judicial Magistrate, Trivandrum for initiating proceedings under Sections 97 and 98 of the Criminal Procedure Code. 1973 on the ground that the petitioner and his associates kidnapped Beenakumari, and Ext A-3 dated 21-4-1975 is Beenakumari's sworn statement before the Chief Judicial Magistrate, Trivandrum. Before the Chief Judicial Magistrate she stated that it was her desire to go with her parents for the time being and the Chief Judicial Magistrate passed Ext. A-4 order on the same day upholding her freedom to go with any person of her choice. Obviously she went with her parents. She is stated to have sent the original of Ext. A-5 letter two days thereafter, on 23-4-1975, (one of the Counsel appearing for the petitioner has filed an affidavit identifying the original - how far this is proper is another question) to the petitioner complaining that her life was as if in prison, that her life was in danger and that she was subjected to all sorts of sufferings : Ext. A-3 statement was sought to be explained therein as one given to save the life of the Petitioner.
2. Pursuant to the summons and notice the respondents are present before us along with their daughter Beenakumari. The respondents have filed a counter-affidavit denying the allegations in the petition and the averments in the affidavit in support of it to the effect that Beenakumari was being kept in unlawful custody by them. It is also averred in the counter-affidavit that Beenakumari was occasionally going out and meeting her friends and relatives. Counsel's competency to swear that Ext. A-5 was written by Beenakumari is challenged by the respondents. It is also pointed out in the counter-affidavit that Ext. A-1 was cancelled by Beenakumari by document No. 45 of 1975 of the Ezhukon Sub-Registry Office. The learned Counsel obtained that document from Beenakumari and placed it before us. We have gone through that and therein it is stated that Ext. A-1 had been got executed under undue influence and fraud and against her will.
3. Ext. A-1 was on 14-4-1975. Thereafter it appears that there were some proceedings before the Chief Judicial Magistrate's Court, Trivandrum which ultimately ended by Beenakumari giving Ext. A-3 statement to the effect that she wished to go along with her parents. Ext. A-3 was on 21-4-1975. Ext. A-5 letter alleged to be that of Beenakumari is of 23-4-1975. Document No. 45 of 1975 of Ezhukon Sub-Registry Office is dated 7-5-1975. Though Ext. A-5 letter is dated 23-4-1975 and though the petitioner admittedly received that letter on 24-4-1975, he came to this Court only on 7-5-1975 on which date document No. 45 of 1975 aforesaid was executed by Beenakumari. The learned Counsel for the petitioner placed before us for perusal another letter dated 26-4-1975 alleged to have been sent by Beenakumari to the petitioner's sister. But we are not inclined to go into the contents of that document, particularly in view of the fact that it is not a letter addressed to the petitioner.
4. The sequence of events being as stated above and since the factum of unlawful detention is being disputed by the respondents we asked the counsel for the petitioner before questioning Beenakumari as to whether on these materials we would be justified in issuing a writ of Habeas Corpus holding that respondents Nos. 1 and 2 are keeping their daughter under illegal custody and wrongful confinement as alleged in the petition and in the affidavit in support thereof. We particularly drew the learned Counsel's attention to the fact that such an act on the part of respondents, if established, would amount to an offence under Section 342 of the Indian Penal Code, 1860, and asked for elucidation of the points as to whether we would be right in holding that respondents have committed acts which would be an offence under Section 342 without resolving the question of fact as to whether Beenakumari was being kept under illegal custody and wrongful confinement. This we did because in our view unless the question of fact is resolved and we come to the conclusion that a citizen of this land is being deprived of his or her liberty of moving about by being kept under illegal custody and wrongful confinement, a writ of Habeas Corpus would not and could not issue. We also invited the learned Counsel's attention to the fact that all the averments in the petition and in the affidavit have been disputed by the respondents in their counter-affidavit, and asked him whether the documents produced by the petitioner should not be proved in the manner prescribed by the provisions of the Evidence Act and the Rules of evidence before we would be justified in holding that Respondents have committed acts amounting to an offence under Section 342 of the Indian Penal Code. The only answer on behalf of the petitioner by his learned Counsel was that we should assume that Ext. A-5 letter alleged to have sent by Beenakumari was sent by her, that it is her letter and that all that is stated in that letter are true and correct. We are unable to do so. Till the factum of wrongful confinement and illegal custody are established in methods known to law. we cannot assume and hold the respondents responsible for acts, which in law would constitute an offence; and the issuance of a writ of Habeas Corpus would necessarily pre-suppose the factum of wrongful confinement. Therefore, it is our view that in cases of the nature before us, it would be more appropriate to invoke the provisions of the Code of Criminal Procedure and the jurisdiction of the District Magistrates, Sub-Divisional Magistrate, or Magistrates of the First Class as contemplated by Section 97 of the Code of Criminal Procedure before whose court the question of fact can be resolved after due enquiry. This does not mean that we have no jurisdiction to issue a writ of Habeas Corpus in cases of this nature after an enquiry into the factum of unlawful detention, but, we feel that it would not be expedient on the part of this Court to embark upon such an enquiry when the petitioner can have such an enquiry before other forums. We also like to point out that cases where the factum of detention is admitted but is sought to be justified as lawful are altogether a different class of cases, where this Court is not required to embark upon an enquiry as to the factual foundation of the petition. We may in this connection quote with advantage the following passage from the judgment of the Supreme Court in Mohd. Ikram Hussain v. State of U.P. AIR 1964 SC 1625 at p. 1630 : (1964) 2 Cri LJ 590 at p. 596.
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 Section 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 recourse 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 that 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.
5. In the above view we were not inclined to question Beenakumari, for any statement given by her not upon oath and without affording an opportunity to the respondents to cross-examine her would not have any evidentiary value and could not be relied on to establish the averments in the petition. However, since the counsel for the petitioner from the very beginning requested us to question her, we asked her as to whether she was and is being kept under illegal custody and wrongful detention by her parents or by any one else, and she answered in the negative. As the real party interested in the proceedings a statement of this nature may, perhaps, tantamount to a submission that the proceedings need not be continued.
We dismiss this petition. In the circumstances of the case we direct the parties to suffer their costs.