Allahabad High Court: Dr Yogendra Kumar Srivastava, J., expressed that:

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.

The present matter for writ of habeas corpus was filed to produce the corpus of petitioner 1 stated to be under detention.

On investigation, it was revealed that petitioner 1 had left her matrimonial home on her own on account of discord with her husband, petitioner 2 for the reason that he is stated to have entered into another marriage and a child was also stated to have been born out of the wedlock.

Petitioners counsel though disputing the factum of the second marriage did not controvert the fact of petitioner 2 being in an extra marital relationship and also that a child was born out of the said relationship.

Analysis and Decision

The writ of habeas corpus is a prerogative writ and an extraordinary remedy.

Bench observed that writ of habeas corpus is of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

Elaborating more on writ of Habeas Corpus, Court added that it has been held as a festinum remedium and accordingly the power would be exercisable in a clear case.

Hence, High Court held that in view of the other remedies available for the purpose under criminal and civil law, issuance of 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 would be made out.

Therefore, petitioner 1 having left the matrimonial home on her own due to a matrimonial discord, the present petition for a writ of habeas corpus at the behest of husband would not be entertainable.[Soniya v. State of U.P., 2021 SCC OnLine All 174, decided on 10-02-2021]

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