“Writ of habeas corpus is a festinum remedium”; All HC rejected issuance of writ at the behest of a husband to regain his wife as no prima facie case of unlawful detention is made out

Allahabad High Court: Yogendra Kumar Srivastava, J., dismissed the petition and rejected the issuance of writ of habeas corpus by a husband seeking production of his wife.

The facts of the case are such that petitioner 2, wife of petitioner 1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (Petitioner 1) and an application for restitution of conjugal rights was filed by the Petitioner 1 which stands pending before the court of the Principal Judge, Family Court, Saharanpur.

Counsel for petitioners Mr Avinash Pandey submitted that sometime in the month of November, 2020 information was received by him suggesting that petitioner 2 was being detained at her parental home

Counsel for State submitted that petitioner 2 (wife) left her matrimonial home sometime in the month of June, 2019 on account of serious differences with her husband (petitioner 1), it is not a case of illegal and a writ of habeas corpus would not be entertainable.

The Court relied on Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling (1973) 2 SCC 674 wherein it was observed that 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.

The Court further observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

The Court held “the petitioner no. 2 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.”[Mohd Ahmad v. State of UP, 2021 SCC OnLine All 542, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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