Court No. - 50
Case :- HABEAS CORPUS WRIT PETITION No. - 3123 of 2018 Petitioner :- Priyanka Rai And Another Respondent :- Ved Prakash Rai And 4 Others Counsel for Petitioner :- Sunil Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
Heard Sri Sunil Kumar Singh, learned counsel for the petitioner, learned AGA for the State and perused the record.
The petition for habeas corpus has been filed by Sri Avesh Rai on behalf of corpus, Smt. Priyanka Rai with the allegations that the corpus is legally wedded wife of petitioner no.2 and is living in her maika and that the opposite party no.2 is intending to make another marriage of the corpus with some one else.
Learned counsel for the petitioner submits that as per averments made by the petitioner, the marriage of corpus and petitioner no.2 was solemnized with Hindu rites on 20.11.2017 and the corpus is not returning to her matrimonial house since 4.12.2017, with an intention to usurp the ornaments, which were taken by her; that the petitioner no.2 has filed matrimonial petition no.1050 of 2017 before the Family Court, Azamgarh for decree of restitution of conjugal rights, which is pending before the Family Court and since respondent is intending her marriage with some other person, in the circumstances, the writ of habeas corpus is required to be issued.
Per contra, learned AGA contended that since there is matrimonial dispute between the husband and wife and the petition under section 9 of Hindu Marriage Act filed by petitioner is pending before the Family Court against the corpus living at her maternal house, she may not be considered to be in unlawful custody of her father or brother and the writ for habeas corpus is not maintainable.
As far as the contention of petitioner no.2 that opposite party no.2 may make marriage of corpus with some one else, which according to him is scheduled to be solemnized on 11.5.2018, the petitioner no.2 has every right to move application before the Family Court (which is competent to give interim relief) in the pending petition under section 9 of Hindu Marriage Act and seek temporary injunction, restraining the defendant therein from making marriage of the corpus with some one else. In the circumstances, the habeas corpus petition is not maintainable and is liable to be dismissed.
The present writ petition is dismissed, accordingly with liberty to seek appropriate remedy before competent court. If the petitioner moves any application before the Family Court, the Family Court is required to pass appropriate order in accordance with law as early as possible.
Order Date :- 27.4.2018 Tamang