Supplementary affidavit filed by learned counsel for the petitioner is taken on record.
Heard learned counsel for the petitioner and learned A.G.A. for the State of U.P.
This Habeas Corpus writ petition has been filed with a prayer to issue a writ, order or directions in the nature of Habeas Corpus commanding the opposite parties No. 1, 2, and 3 to get the petitioner/detenue and her child released from the illegal custody/detention of opposite party no. 4, 5 & 6 and she may be set at liberty to live with her husband Vijay Patel.
Learned counsel for the appellant submits that the petitioner Neelam Patel wife of next friend/husband Vijay Patal is willing to come and live with her husband but the opposite parties nos. 4, 5 and 6 are not permitting him to do so, even they are permitting the next friend/husband Vijay Patel to meet them. The petitioner Neelam Patel has also newly born baby child of one month. The next friend has bona-fide apprehension about life and liberty of her wife petitioner and their newly born baby child. In the facts and circumstances of the case, the petitioner has no any other efficacious remedy except to file this petition.
Learned A.G.A. has opposed the maintainability of this petition on the ground that the petitioner is married wife of her next friend/husband Vijay Patel. In the facts and circumstances of the case, he is expected to seek remedy of section 9 of Hindu Marriage Act for returning of his wife. As such, this petition is mis-conceived and not maintainable.
After considering the rival arguments raised by the learned counsel for the parties and material available on record, I am of the view that in the facts and circumstances of the case, this petition is mis-conceived and not sustainable due to availability of alternative remedy for filing the petition under Section 9 of the Hindu Marriage Act or restitution of conjugal rights/ to approach the police and administrative authorities for rescue of his wife and child. In view of the facts and circumstances of the case, this petition is mis-conceived and liable to be dismissed as having no force.
Therefore, this petition is dismissed as not maintainable.
However, looking to the facts and circumstances of the case, it is provided that if within 15 days from today, Sri Vijay Patel husband/next friend of the petitioner wife Neelam Patel appears and submits any application before the concerned Administrative /Police Authorities, then, he/they shall ensure that whether the petitioner Neelam Patel is willing to come with her husband/next friend Vijay Patel and if opposite party nos. 4, 5 and 6 are causing any hindrance in it if so, he/they will take appropriate steps and suitable action in the matter.
Order Date :- 12.6.2014 Monika