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The Allahabad High Court recently in a plea for issuance of a writ of habeas corpus at the behest of a husband to regain his wife observed that it may not be available as a matter of course and the power in this regard may be exercised only when a clear case is made out.

The Single Bench of Dr. Y.K. Srivastava while dismissing the petition observed that,

“In the facts of the present case, the petitioner no.2(wife) having left her matrimonial home on her own on account of a matrimonial discord, the present petition seeking a writ of habeas corpus at the behest of the petitioner no.1 (husband) would not be entertainable.”

According to the facts of the present case the petitioner no.2, wife of the petitioner no.1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (petitioner no.1) and an application for restitution of conjugal rights was filed by the petitioner no.1 which was registered (Mohd.  Ahmad vs. Arshi) and the same was stated to be pending before the court of the Principal Judge, Family Court, Saharanpur.

The Counsel for the petitioners sought to contend that subsequently sometime in the month of November, 2020 an information was received by him suggesting that petitioner no.2 was being detained at her parental home and   in   regard   to   the   same   certain   applications   are   also stated to have been moved by him before the respondent authorities.

To this Learned AGA submitted that, “once it  has   been   admitted   that   the   petitioner   no.2 (wife) left her matrimonial home sometime in the month of June,   2019   on   account   of   serious   differences   with   her husband   (petitioner   no.1),   it   is   not   a   case   of   illegal detention   and   a   writ   of   habeas   corpus   would   not   be entertainable. This would be more so for the reason that an application seeking restitution of conjugal rights is stated to have   been   filed   by   the   petitioner   no.1   and   the   same   is pending.”

The Bench noted that, there was no material on record to suggest that the wife ( petitioner no 2) was forcibly taken away, rather the facts indicated that the wife had left her matrimonial home on her own accord on account of some serious differences with her husband (petitioner no.1). The application seeking restitution of conjugal rights, filed by the husband, contained a clear narration of facts in this regard.

“The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown,” bench further noted.

The Bench cited the Mohammad Ikram Hussain v State of U.P. and others and observed that,

“The writ of habeas corpus has been held as a festinum remedium and accordingly the power would be exercisable in a clear case. The remedy of writ of habeas corpus at the instance   of   a   person   seeking   to   obtain   possession of someone whom he claims to be his wife would therefore not be available as a matter of course.”

Lastly the Bench observed that,

“In view of the other remedies available for the purpose under criminal and civil law, issuance of a writ of habeas corpus at the behest of a husband to regain his wife may not be available as a matter of course and the power in this regard may be exercised only when a clear case is made out.”

[Case Title - Mohd. Ahmad And Another Vs. State Of U.P. And 4 Others ]