ORDER O.P. Jain, J.
1. Habeas Corpus Writ Petition No. 4056 of 1997 and Habeas Corpus Writ Petition No. 8049 of 1997 are being disposed of by a common order. Sri Kamal Krishna who has appeared for the petitioner in Case No. 4056/97 and Sri Z. K. Hasan who has appeared for the petitioner in Case No. 8049/97 have been heard.
2. The allegations in Case No. 4056/97 are that Smt. Seeta Devi and Mahendra are residents of the same village and they fell in love with each other and decided to marry. Both are stated to be major. It is alleged that they got their marriage registered before the Sub-Registrar on 28-9-1996 and it is further alleged that Smt. Seeta Devi is being confined in the house of opposite party No. 2 who is related to her father Mata Pher, opposite party No. 1.
3. The allegations in Case No. 8049/97 are that Smt. Sahista Anis, petitioner No. 1 was married to Syed Ejaz Hussain, petitioner No. 2, according to Muslim rites on 21 -12-1995. They lived happily for some time. However, the parents and brother of opposite party No. 1, Smt. Sahista Anis, insisted that both of them should live with the respondents. It is further alleged on 14-5-1996, in the absence of petitioner No. 2 respondents Nos. 1, 3 and 6 along with ten to twelve other persons came to the house of the petitioner No. 2 and forcibly took away petitioner No. 1. It is further alleged that a compromise was arrived at and petitioner No. I again started living with petitioner No. 2 from 6th May, 1996. However, again on 18-2-1997 respondent No. 3 along with 4 and 5 other persons came to the house of petitioner No. 2 and again forcibly took away petitioner No. 1 against her wishes. Petitioner No. 2 is not being allowed to talk to petitioner No. 1 and he' over heard petitioner No. 1 saying that she was being forcibly detained by the respondents.
4. The first question which arises for consideration is whether a writ of habeas corpus should be issued as a matter of course at the instance of the husband who alleges that his wife is being detained against her will by her parents.
5. The earliest case on the point is AIR 1956 SC 108 Smt. Vidya Verma v. Dr. Shiv Narain Verma in which it has been held in paragraph 7 that the violation of the right to personal liberty by a private individual is not within the purview of Article 21. Therefore, a person whose right to personal liberty is infringed by a private individual must seek his remedy under the ordinary law and not under Article 32. This was a case filed on behalf of the daughter against her father.
6. The next case on the point is AIR 1964 SC 1625 Mohd. Ikram Hussain v. State of U.P. in which the following observations have been made in paragraph 13 :
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 have 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....
7. From the above two authorities of the Apex Court it is clear that ordinarily the writ of habeas corpus should not be issued against the father at the instance of the husband or person claiming to be the husband.
8. It is argued on behalf of the petitioners that the remedy under Section 97, Cr.P.C. is not available to the present petitioners because the detention of the wife by the parents does not amount to an offence. In support of this contention learned counsel for the petitioners have relied on 1963 (2) Cri LJ 541 (All) Harihar v. State of U.P. In order to appreciate this condition, Section 97, Cr.P.C. is reproduced below :
If any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance there with, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
9. A bare perusal of the section shows that if a major woman is confined against her will, this act will amount to an offence. The ruling cited by the learned counsel is not applicable because in Harihar's case (1963 (2) Cri LJ 541) (supra) this Court was dealing with the case of a minor wife. So far as a major girl, whether married or unmarried, is concerned, if she is detained or confined against her will by the parents or by the husband, the offence under Section 341 or 342, I.P.C. will be made out. Such detention will amount to an offence within the meaning of Section 97, Cr.P.C. and a resort to that section is the remedy available to the aggrieved party.
10. Another case which has been cited by the learned counsel for the petitioners is Tara Chand Seth v. Superintendent District Jail, Rampur 1983 All LJ 16. It was a case in which a person was detained in jail under the provisions of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Act No. 7 of 1980). Therefore this case is based on entirely different facts.
11. Another case cited on behalf of the applicants is Smt. Munni Devi v. State of U.P. 1990 All WC 651. In Munni Devi's case the girl was detained in a Nari Niketan. Similar was the case of Smt. Neelam v. Chhedi Lal 1986 All CJ 86. In both these cases the girl was major and was detained in a Nari Niketan presumably by an order of the Court. Therefore the confinement of the girl in the Nari Niketan did not amount to an offence and Section 97, Cr.P.C. was not applicable. It was under these circumstances that the writ of habeas carpus was issued.
12. It should be noted that for issuing a writ of habeas corpus there should be wrongful confinement. It has been observed by the Apex Court in the case of Mohd. Ikram Hussain v. State of U.P. AIR 1964 SC 1625 "that what amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy". Mohd. Ikram Hussain's case has been cited in Smt. Munni Devi's case at paragraph 4 and it was in view of these observations that the detention in a Nari Niketan was considered a good ground for issuing the writ of habeas, corpus.
13. The learned counsel for the petitioners have cited some more cases which may now be mentioned. The first case is that of Captain Dushyant Somal v. Sushma Somal AIR 1981 SC 1026 in which a child who was entrusted to the custody of the mother by an order of the Court was forcibly taken away by the father. In the case of Vinayak Goyal v. Prem Prakash Goyal 1981 All WC 457 : 1981 All LJ 752 and in the case of Rajeev alias Rajoo v. Smt. Pushpa Devi 1984 All Cri R 80 : 1984 All LJ 358 the person detained was a minor child. In the case of Smt. Beenu Jaiswal v. Deepak Kumar 1996 All Cri C 765 : 1996 All LJ 1716 also this Court was dealing with the custody of the minor. The mother filed an application for habeas corpus for the custody of her son. An objection was raised that habeas corpus petition is not maintainable and the proper remedy is to file a petition under the Guardians and Wards Act. This Court quoted a passage from Halsbury's Laws of England Vol. 11, Para 1469 which is reproduced as under:
A parent, guardian or other person who is legally entitled to the custody of a minor can regain that custody, when wrongfully deprived of it, by means of writ of habeas corpus. For the purpose of the issue of the writ the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restrain or force is being used towards the minor by the person in whose custody and control he is for the time being.
14. Under these circumstances it was held that even if the custody of the minor is not unlawful the habeas corpus petition filed by the mother is fully maintainable. As the custody was not unlawful, Section 97, Cr.P.C. was not available in the case and therefore this Court issued a writ of habeas corpus and held that in the case of minor a writ of habeas corpus may not in general be refused merely because there exists an alternative remedy by which the validity of the detention can be questioned. So far as the minors are concerned, a Division Bench of this Court has held in the case of Vinayak Goyal v. Prem Prakash Goyal 1981 All LJ 752 (supra) that a writ of habeas corpus would be maintainable for the custody of a child despite an alternative remedy of Ciling an application under the Guardians and Wards Act.
15. Learned counsel for the petitioners has cited Smt. Anita Devi v. Jhunni Lal 1990 All LJ 481 : 1990 All CJ 235 and also the case of Smt. Asha Khand v. Jagdamba Prasad 1991 UP CR 482. But in those cases the power of the Court to issue a writ of habeas corpus at the instance of the husband against the parents of a girl or the propriety of issuing the writ was not raised.
16. In view of the above discussion, the legal position which emerges is that a writ of habeas corpus should not be issued as a matter of course at the instance of a husband against the parents or other close relatives of the wife. This extraordinary remedy should be confined to exceptional cases. Ordinarily the husband should peruse the remedy provided by Section 97, Cr.P.C. or the remedy of restitution of conjugal rights. The above two cases are not of exceptional nature. Consequently Habeas Corpus Writ Petition No. 4056/97 and Habeas Corpus Writ Petition No. 8049/97 arc hereby dismissed.