Case BriefsHigh Courts

Madhya Pradesh High Court, Gwalior Bench: S.A. Dharmadhikari, J., while addressing an issue with regard to the custody of a child held that the welfare of child is of paramount importance.

The instant petition was filed to seek habeas corpus direction respondents 1 to 5 to produce the corpus Yatharth before the Court who is alleged to be in illegal detention of respondents 6 to 8.

Brief Facts

Matrimonial dispute between the petitioner and respondent 6 was going on. Respondent 6 used to harass and beat the petitioner and demanded a dowry of Rs 5 lakhs from the petitioner.

Due to some altercation between the husband and wife, respondent 6 had locked the petitioner in a room and took away the minor child Yatharth along with him.

Corpus Yatharth is 15 months old child and has been illegally snatched by the respondent 6/husband and her in-laws from the possession of the petitioner, who is living in her parental house.

When the petitioner requested her husband to hand over the corpus to her, the respondent 6/husband beat the petitioner along with her brother and mother and had tied them with rope. In these circumstances, the petitioner was left with no other option, but to file an FIR.

Analysis and Decision

First Issue: Whether the Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior?

Court referred to the decision of the Supreme Court in Dushyant Somal v. Sushma Somal, (1981) 2 SCC 277 which dealt with the jurisdictional aspect with regard to the issuance of Habeas Corpus writ in respect of illegal custody of a child.

In view of the above decision, High Court is of the opinion that a writ petition for issuance of a writ in nature of Habeas Corpus under Article 226 in the peculiar facts and circumstances of the case is certainly maintainable.

Further, keeping in view the welfare of the child and other factors, the Court opined that the child has to be in the custody of the mother.

Decision

In the present case, the child is aged about 15 months and this Court keeping in view Section 6 of the Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother.

Bench is of the opinion that the welfare of a child is of paramount importance and the mother/petitioner, who has nurtured the child for 9 months in the womb, is certainly entitled to custody of the child keeping in view the statutory provisions governing the field.

Hence, the Court directed the respondent 6 to 8 to handover the custody of the child to the petitioner.

Accordingly, the instant petition stands allowed. [Madhavi Rathore v. State of M.P., 2020 SCC OnLine MP 1992, decided on 05-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., while addressing an application with regard to the custody of minor children observed that, it is trite law that till the minor children become 6 years of age, the custody ordinarily shall have to be with mother unless their welfare is an issue with the Court.

In the instant petition respondent 4 stated that initially for 6 months, he and the applicant lived together and after being assured of the relationship, she got the marriage registered under the Special Marriage Act.

Twins were born to the applicant, further the respondent 4 alleged against her about having the intimacy with her female classmate.

It is also stated by respondent 4 that since the applicant was desirous of living freely, she agreed to the divorce on the stamp paper of Rs 100 and they separated.

He denied the allegations of her having been beaten and driven from her matrimonial home and with regard to the custody of the minors, it was also contended that he had not agreed with the children be retained by the applicant.

Mother of the applicant also chose to file an affidavit in favour of respondent 4.

Applicant alleged against the husband that he has criminal antecedents who deals with prohibited liquor and it is also reported in the newspaper.

Decision

According to the Advocate Chavada on behalf of the applicant, it has been a pure mistake on the part of the applicant not to have made mention of the application preferred under the Guardians and Wards Act provisions.

However, the said argument cannot be a bar to file writ petition of habeas corpus.

“Entire story of divorce deed has been concocted and marriage of the couple had been under Special Marriage Act, for they both being of different religions, divorce could not have taken place on Rs 100 stamp paper.”

Welfare of the Minor Children

Court observed that,

“What is far more important is to see as to whether the age of the twins is such where they can reveal their minds and what would be in their interest to do !

When obviously they are unable to state themselves for not having completed 3 years, their welfare would be of paramount consideration of the court.”

Bench stated that it is the requirement of the statute that once having chosen to be spouses under the Special Marriage Act, it is necessary for the parties to take recourse to the very law to even permanently sever the ties.

Writ of Habeas Corpus

In the instant matter, for the purpose of the writ of habeas corpus, Court has chosen not to permit reliance on the said document noticing the very question of the validity of this document couple with a serious allegation against the mother of the applicant.

The prime concern in the present matter is the children’s custody, it is a trite law that till they become 6 years of age, the custody ordinarily shall have to be with the mother unless their welfare is an issue with the Court.

Court further states that it shall not be led by any of the allegations attempting to assassinate the applicant’s character who dares to shape her life with dignity and self-help after leaving her matrimonial home.

Hence in view of the applicant’s position of her having a rented place and running a tiffin service with an earning of Rs 25,000, the right of the children to be maintained by both parents do not go away, the welfare of the children requires their custody to be handed over to the applicant.

With the custody of children being handed over to the mother immediately, the petition was disposed of. [Chavda Twinkle v. State of Gujarat, 2020 SCC OnLine Guj 1167, decided on 17-07-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of N.V. Anjaria and Ashok Kumar C. Joshi, JJ. addressed a petition wherein Writ of Habeas Corpus was sought in order to produce the daughter of the petitioner.

Matter:

Petitioner’s minor daughter was taken by respondent 4 when she was doing some labour work at a factory. Respondent 4 was also engaged in working at the same factory. Petitioner had lodged an FIR for offenses punishable under Sections 363 and 366 of Penal Code, 1860 as well as Section 18 of Protection of Children from Sexual Offenses Act, 2012., but no satisfactory reply came from the police.

In view of the above, petitioner approached the High Court through the present petition.

Further on issuance of order by this court, respondent-3 /Police was asked to take steps to trace the corpus. Later the proceedings kept adjourning due to the COVID-19 Outbreak and consequential suspension of regular court working.

In the meantime, Police succeed in tracing the minor girl with respondent 4. Girl and Respondent 4 were found to be in Panvel Talk of Ahmednagar District in the State of Maharashtra. On 18-04-2020 corpus was brought back to Gujarat. It was found that respondent 4 had taken the girl to various different places during the period.

As the Corpus was in police custody, request was made by the Additional Public Prosecutor to get the matter listed so that the girl could be produced before the Court. Thus the matter after being listed by Registry came up before the Court.

Permission was granted for the corpus to be produce through video-conferencing as, in the present circumstances it was not possible.

According to the Police Report it was noted that the girl was made to go through medical examination and the report for the same submitted to the Court. Respondent 4 had already been booked pursuant to the FIR and events thereafter.

According to the statement recorded by police, it was stated by the Corpus that she was willing to go her parent’s house.

Bench wanted to make sure of the fact that the girl was saying the above out of her own will and thus she was produced before the Court wherein the same question of her willingness was asked and Corpus stated that she was willing to go. Parents of the Corpus were also asked about their willingness to take their daughter to which their response was in positive.

Court directed the parents of the Corpus to take proper care their minor daughter, in view of the stated corpus was permitted to go with her parents. Police authorities were also directed to ensure safe passage of the corpus and her parents.

To ensure the well being of the Corpus, authorities concerned were erected to depute a Social Welfare Officer from the District and the said officer shall visit the house of corpus and report before ether competent authority after one month.

Petition disposed in the above terms. [Atubhai Nanjibhai Baraiya v. State of Gujarat, 2020 SCC OnLine Guj 506 , decided on 21-04-2020]

Case BriefsSupreme Court

Supreme Court: In a case where pre-mature release of convicts was sought in terms of a Scheme framed by the Government of Tamil Nadu, the bench of SA Nazeer and Deepak Gupta, JJ observed that a writ of  habeas corpus  will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law.

“The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents.  This writ is many times used even in cases of custody of children.  Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law.”

Issue

Whether a writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders/Rules providing for pre­mature release of prisoners?

Background

  • A Scheme was framed in the State of Tamil Nadu for considering the cases of pre­mature release of convicted prisoners on the occasion of the Birth Centenary of M.G. Ramachandran, former Chief Minister of Tamil Nadu.
  • Various Writ petitions for habeas corpus were filed on the ground that the State has not given benefit of the premature release to the petitioners whereas many others have been given the benefit.

Observation

Considering that in all the petitioners in the present case were sentenced to imprisonment for life, the Court held that as such their detention cannot be said to be illegal. It is not for the writ court to decide whether a prisoner is entitled to parole or remission and these matters lie squarely in the domain of the Government.  The Court, however, added that the Court which deprives a person of his liberty in accordance with law also has the responsibility to ensure that such a person though under incarceration is not denied the other fundamental rights which he is entitled to. Therefore, there can be no dispute with the proposition that anybody who is behind bars and is ill­treated or is deprived of his liberties, may approach the Court for a writ of habeas corpus.

“A writ petition by a prisoner is maintainable if his fundamental rights are violated.”

The Court, further, said that the grant of remission or parole is not a right vested with the prisoner.  It is a privilege available to the prisoner on fulfilling certain conditions.  This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.  

[Home Secretary (Prison) v. H. Nilofer Nisha, 2020 SCC OnLine SC 73, decided on 23.01.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed a petition whereby the petitioners sought their release by invoking the writ of Habeas Corpus on the ground that their judicial custody was authorised beyond a period of 15 days he designated court, which is contrary to the mandate of Section 309(2) CrPC.

The petitioners were accused in a criminal case registered under various provisions of IPC and the MPID Act, 1999. The main ground pressed in to service by Subhash Jha and Harekrishna Mishra, Advocates for the petitioners, was that the proviso to Section 309(2) CrPC provides for remand of the accused of a term not extending 15 days at a time. In the present case, from time to time, the judicial custody of the petitioners was extended beyond 15 days, which according to them was in violation of Article 21 of the Constitution. Per contra, M.M. Deshmukh, APP for the State, opposed the writ petition.

Perusing Section 309(2) along with its first proviso, the High Court noted that the proviso to Section 309(2) CrPC carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under Section 309(2) CrPC for a term exceeding 15 days at a time.

However, applying the settled principles of interpretation of statutes, the Court went on to observe: “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.” It was further stated: “…on plain reading of section 309(2) of CrPC and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of CrPC to put limitation on the power of the trial Court while exercising the powers under section 309(2) of CrPC”

Also, relying on Saurabh Kumar v. Koneila Jail, (2014) 13 SCC 436 and State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the High Court reiterated that writ of Habeas Corpus is not maintainable against the judicial order remanding the accused into the custody and appropriate remedy is to seek bail.

The High Court, therefore, held that the petitioners were entitled to the writ of habeas corpus and their remedy lie elsewhere. Resultantly, the instant petition was dismissed. [Harshad Dinanath Bari v. State of Maharashtra, 2019 SCC OnLine Bom 5701, decided on 18-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravindra Maithani and Alok Singh, JJ. contemplated a Habeas Corpus case where the petitioner Deep Singh sought production of a woman named Fiza, the petitioner alleged that the girl was lawfully married to him but was not being released by Child Welfare Committee.

It was contended by the Welfare Committee that the girl was still a minor and aged 13. The Court observed that the Welfare Committee was directed through a letter by the State to keep the girl in Bal Grah, there were some other documents which proved that the girl was aged 13 years. But in a subsequent letter, it was observed that the girl did not appear to be 13 years old and the girl herself made a statement related to it.  According to the girl, her date of birth had been rightly recorded in the Aadhaar card, but in school record, her date of birth was changed by her parents. Thus due to uncertainty related to age, the Court directed for an ossification test.

The abovementioned test was conducted by the Chief Medical Officer and it was revealed that the girl was around 19 years. It was observed that the State disputed her date of birth. As stated, when the girl was produced before the Child Welfare Committee, it was then observed that she did not appear to be of 13-year of age. She had stated that she was 19-years old and wanted to go with the petitioner with whom she had married. It was further observed by the Court that the girl was lawfully married the wife of the petitioner and both the petitioner and the girl were threatened by the relatives hence they sought protection from Punjab and Haryana High Court, which was granted by the said Court.

The Court further did not make any observation related to the age of the girl; it held that, “It may be a matter of further deliberations subject to the material produced by investigating agency, if any, during the course of investigation or trial of the case, as the case may be.”The Court set her free and there was no reason to confine her.[Deep Singh v. Superintendent of Police, 2019 SCC OnLine Utt 569, decided on 10-07-2019]

Case BriefsForeign Courts

“Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention……. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited.”

Supreme Court of Canada: The Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Brown, JJ. dismissed an appeal filed by Minister of Public Safety and Emergency Preparedness against the judgment of Court of Appeal for Alberta whereby a detained immigrant’s application for habeas corpus was allowed.

Respondent herein entered Canada under a pseudo name and obtained refugee status. Later on, his refugee status was vacated and he was declared inadmissible to Canada due to misrepresentations in his refugee application and his involvement in criminal activity. Thus, a deportation order was issued against him. He was placed in immigration detention in a maximum security unit. Immigration officials reviewed his detention on a monthly basis, each time upholding the decision that he should be detained. Respondent filed a habeas corpus application under Section 10 (c) of the Canadian Charter of Rights and Freedoms on the ground that his detention had become unlawful, because it had become lengthy and indeterminate and the conditions of his detention were inappropriate, breaching his rights under Sections 7 and 9 of the Charter. The Chambers Judge declined to consider respondent’s application on the basis that the scheme set out in the Immigration and Refugee Protection Act, 2001 (IRPA) satisfied the Peiroo exception[1]. The Court of Appeal reversed this decision and allowed the respondent’s application.

The Court, by a majority of 6:1, noted that there are only two exceptions to the availability of habeas corpus: (i) challenging the legality of a criminal conviction where a statute provides for a right of appeal; (ii) it is not available in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review as broad as that available by way of habeas corpus.

It was opined that IRPA was a complete, comprehensive and expert scheme for immigration matters generally, but the statutory scheme set out in the IRPA did not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which the respondent had challenged the legality of his detention, i.e., the length, uncertain duration and conditions of his detention.

It was held that the IRPA scheme fell short in at least three important ways: (i) the onus in detention review was less advantageous to detainees than in habeas corpus proceedings; (ii) the scope of immigration detention review before the Federal Courts was narrower than that of a superior court’s consideration of a habeas corpus application and; (iii) habeas corpus provided a more timely remedy than that afforded by judicial review. Therefore, the appeal was dismissed.[ Minister of Public Safety and Emergency Preparedness and Attorney General of Canada v. Tusif Ur Rehman Chhina, 2019 SCC OnLine Can SC 12, decided on 10-05-2019]


[1] Where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme. (Peiroo v. Canada (Minister of Employment & Immigration, (1989), 69 O.R. (2d) 253.

Case BriefsHigh Courts

“Viewing Hindi or English as the only language does not seem to be the Constitutional mandate and it is with this end in view that our Constitution framers chiselled and shaped Article 348 of the Constitution of India.”

Patna High Court: The Three-Judge Bench of Amreshwar Pratap Sahi, CJ., Ashutosh Kumar and Rajeev Ranjan Prasad, JJ., was hearing a reference that came to this Bench from a writ petition (seeking issuance of writ of habeas corpus challenging a detention order) drafted in Hindi.

The instant reference came to this Court when a Division Bench of this Court in the present case, was in disagreement with another Division Bench judgment in Binay Kumar Singh v. Bihar State Electricity Board, 2010 SCC OnLine Pat 2286 wherein it was held that there is no prohibition under Article 226 and 227 of the Constitution of India, for institution of an application in Hindi.

The issue under reference was whether a writ petition under Article 226 and 227 of the Constitution of India could be filed in Hindi language and Devanagari script.

The issue raised before the Bench related to interpretation of the language employed in Notification No. 3/Hi 3-5043/68-185-Ra dated 09-05-1972 which “authorises the alternative use of Hindi language in the High Court in following proceedings:- (1) For arguments in civil and criminal cases before Patna High Court. (2) For submitting application with affidavits: However English shall continue to be used for applications submitted under Article 226 & 227 of the Constitution of India as an exception. Annexure attached to the applications shall not be required in English. Similarly, application connected with the tax reference shall continue to be submitted in English as well. In Special cases the Patna High Court may make an order to translate Hindi papers into English….”

The Court delivered three separate judgments. But Kumar and Prasad, JJ. in a ‘post-script’ endorsed the opinion of Sahi, CJ.

Amreshwar Pratap Sahi, CJ.

While spoken language in the Court includes native vernacular expressions but written language in the High Court was governed by the Rule 1 of Part-II under Chapter III of the Rules of the High Court at Patna which states that “Every application to the High Court shall be by a petition written in the English language.”

Article 343 of the Constitution states that Hindi shall be the official language of the Union; but Article 348 states that all the proceedings in the Supreme Court and every High Court shall be in English language, subject to Article 348(2) which categorically authorizes use of Hindi language or any other language for any official purposes in proceedings in the High Court.

He remarked that “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” He further expressed that “use of language is to be a matter of practice and to be inculcated from childhood to adolescence and beyond. This includes the use of language at home, in school and in the official curriculum.”

He opined that the general acceptability of the English language obligates its usage in order to maintain a uniformity of expression of ideas. He also pointed out that the use of Court language, particularly in higher judiciary, is of significance as it involves interpretation of laws that have come into existence with a global participation between different countries throughout the world.

It was opined that the introduction of a language to be used in Courts is to be directly in tune with the opportunities given to the students of law to educate; and the curriculum prescribed by the Bar Council of India clearly defines the medium of instruction in all law courses as English. The practicality of the issue at hand needs to be judged from the point of view of adaptability of Hindi by following it even in courses imparted by law colleges.

He observed that pleadings before a Writ Court in written language have to be understood in the authoritative language for an additional reason because the High Court under Article 215 of the Constitution is a Court of record. The wide nature of powers exercised by the High Court engulfs within itself the entire canvas of the population which may not include those which are yet to acquire any proficiency in the Hindi language. It was for this reason that the maintenance of records in the English language, was incorporated in the High Court Rules.

The Notification was issued in the exercise of powers under Article 348(2) of the Constitution, and thus it did not suffer from any infirmity. It was opined that the Apex Court in Dr Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 had categorically held that even though the High Court Rules are framed in exercise of power under Article 225 of the Constitution of India yet they do not occupy a higher pedestal that the Constitutional mandate under Article 348 (2) and the Notification issued thereunder.

Sahi, CJ. held that Hindi has not been provided as an alternative language in respect of writ petitions under Article 226 and 227 of the Constitution of India and tax references. According to the plain meaning of the words used in the Notification, such pleadings presented for official use have to be necessarily in English and the same is fortified by the Rules of the High Court. However, he opined that there was no express prohibition regarding use of Hindi to the exclusion of English. It is open to a litigant to present his pleadings in Hindi but the authoritative text of it has to be in English to the extent as provided for in the Notification.

He observed that the question was not that of conflict of supremacy of any language but its viability and purpose as a use of Court language in certain classes of petitions. From that point of view, the Constitutional mandate has been always treated Hindi as an official language. For Court proceedings Hindi is practically a parallel language and is also spoken in the Patna High Court. There is no statutory or Constitutional bar for advancing oral submissions in Hindi. Thus, Hindi is not an alternative language but a language available as an elective option at the privilege of the user in Court proceedings subject to the limitation as contained in the Notification. Reliance in this regards was placed on Swaran Singh Bagga v. N.N. Singh, 1995 SCC OnLine Pat 274 where it was observed that there is no bar for any person to file an application in Hindi nor there is any bar for any person to advance argument in Hindi.

Sahi, CJ. remarked that that English language was being primarily used for training legal brains not only because of its historical past but also because of the global impact of the language of English in today’s context when laws from all over the world are being referred to in courses of study including International Law, Commercial Law and the like the translation of this massive global information into Hindi Devnagari script may not be possible in the near future nor such effective translation was available so as to train legal minds in Hindi. The voluminous material of legislations, documents, curriculum, sources of law, etc. in English could be translated overnight with exactitude for the use in educational institutions or even in Courts of law, as all of it formed a substantial basis of both legal education and continuing legal education. Thus, the use of material in English for advancing the cause of justice cannot be substituted overnight.

Sahi, CJ. approved the reasoning of Swaran Singh Bagga as correct and held that “so long as the notification dated 09-05-1972 was not modified, rescinded or substituted in any form, a petition under Article 226 and 227 of the Constitution of India or a tax reference can be filed in Hindi but it would have to be accompanied by an English version as well, which shall be the authentic version of the petition.

Ashutosh Kumar, J. held that a writ petition under Articles 226/227 of the Constitution of India can be filed in Hindi language also.

He opined that on reading the notification as a whole, the necessity of permitting use of Hindi as an alternative language, in terms of Article 348(2) and in obedience to the directives in Articles 350 and 351 of the Constitution was reflected.  He parted with the observation that “in the present day scenario, with the growth of education and the impact of globalization, it can hardly be said that English is not intelligible to the masses.”

Rajeev Ranjan Prasad, J. held that an application under Article 226 and 227 of the Constitution of India may be filed in Patna High Court only in English language, directing the State Government to look into the Special Directives as contained in Article 351 of the Constitution of India and come out with appropriate notification.

His opinion was based on perusal of the Constituent Assembly Debates which reflected division of opinion with respect to national language. He observed that English common law was the basis of Indian legal system and, to that end, the English language had been a useful medium of thought and expression. If the High Court adopts a local language, then it would be difficult for High Courts to cite judgments of other High Courts. Difficulty would also arise in the functioning of Supreme Court if the High Courts were to adopt different languages.

Concluding their opinions, Prasad and Kumar, JJ. in a ‘post-script’ endorsed the opinion of the Sahi, CJ. and held that “We, after having revisited our respective opinions, have come to the conclusion that the interpretation of the notification of 1972 given by Hon’ble the Chief Justice serves the twin purposes of pandering to the aspirations of preserving and promoting Hindi language and at the same time maintaining the exclusivity of the court language to English, for the benefit of the accessibility to an ever burgeoning case materials, case laws and research works in the area of law, which is mostly in English language and which is necessary in the background of the diverse, multicultural and multi linguistic country that we are in.”[Krishna Yadav v. State of Bihar, 2019 SCC OnLine Pat 594, Order dated 30-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of Atul Sreedharan, J. hearing a habeas corpus writ filed by the mother of a girl who had married against her parent’s wishes, found that the allegations and statements of mother were completely false and directed that the corpus-daughter was free to live with her husband without interference from anyone.

The instant petition was filed praying for corpus of petitioner’s daughter – Ms Suraiya Khan – who was alleged to be abducted by one Mr Noor Hasan (respondent 5 herein). The petitioner further stated that her daughter was mentally retarded and of unsound mind.

Police recovered the corpus and produced her before this Court, on which date she stated that she had entered into nikah with respondent 5 Abrarul Hasan Mansoori alias Noor Hasan. She further stated that she was living with him as his wife and had no problems. The corpus raised suspicions that her parents and family members could create problems for her and her husband and thus sought police protection for both of them.

The Court noted that no medical report of the missing corpus, filed by the petitioner, even remotely reflected her to be mentally retarded or of unsound mind. After speaking to the corpus and noting her statements as mentioned above, this Court held that the allegations as to her mental health were completely false. It was observed that the corpus appeared to be of sound mind and health and she had answered the questions put forth to her by this Court very clearly.

In view of the above, the petition was disposed of holding that the corpus Suraiya and her husband Noor Hasan were free to lead their own lives wherever they wanted to, and it was directed that they shall not be disturbed by petitioner or anyone from their family in this regard.[Jaitun Nisha v. State of Madhya Pradesh, 2019 SCC OnLine MP 675, Order dated 08-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had filed the Criminal writ petition before a Bench of Inderjit Singh, J. under Article 226 of the Constitution of India seeking relief in the nature of habeas corpus for the release of detenue along with a truck which was alleged to be illegally detained by respondents.

Facts of the case were that by an order of this Court, Warrant Officer was appointed. The officer was directed to visit the place where the detenue was alleged to be detained illegally and if he finds the custody to be illegal the detenue was to be released. In consequence of the order, a report was submitted by the Warrant Officer stating that the detenue was not found in the police custody when the raid was done. But the truck was taken by the police as the registration certificate was fake and FIR under Sections 420, 467, 468, 471 and 120-B of the Penal Code was registered at Police Station Sanaur.

High Court in view of the above-submitted report, found no reason to interfere in this matter. [Gurmit Kaur v. State of Punjab, 2019 SCC OnLine P&H 76, decided on 30-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and T.V. Anil Kumar, JJ. dismissed a petition seeking a writ of habeas corpus for production of petitioner’s friend – one Sumayya – ruling that there was no basis for allegations of illegal detention.

It was alleged that as per Sumayya’s facebook posts, she had been confined at a hospital by her mother and was being given unnecessary medications. When the petition came for admission, the Court directed the police to conduct a discreet enquiry into allegations of the petitioner, obtain a detailed medical report from the hospital regarding the mental status of Sumayya and also the details of treatment administered to her. Accordingly, a medical report, medical certificate and statements recorded from Sumayya were submitted to the Court.

It was diagnosed that Sumayya had a manic episode in the context of bipolar affective disorder and she was unlikely to receive treatment outside a hospital as she believed that her hospitalization was masterminded by her mother and hospital authorities were siding with her mother to “make her mentally ill”. At the time of the admission, Sumayya lacked the capacity to take an intelligent decision and faced a risk of untreated illness. However, after hospitalization, she had stabilized and regained her capacity for mental healthcare decisions. She was taking medication and had agreed to continue the same and also get psychological help.

She also stated that she has not been confined in the hospital by anyone and that she had only instructed the petitioner to file the instant petition as she intended to lead an independent life.

After interaction with Sumayya in Chambers, the Court opined that she was mentally stable and comfortable with her mother as well as with the atmosphere of the hospital where she was staying.

In view of the above, the petition was dismissed.[Manoj Joseph v. State of Kerala, 2018 SCC OnLine Ker 5265, decided on 11-12-2018]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018] 

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a habeas corpus petition filed by the partner of a lesbian held that persons of the same gender are entitled to be in a live-in relationship.

The present petition seeking a writ of habeas corpus was filed by the petitioner alleging that her lesbian partner, Ms Aruna, had been illegally confined by her parents against her free will. The detenue had informed the petitioner that her parents had admitted her in a mental hospital. When the petitioner went to meet her in the said hospital, she was ready and willing to come along with her but the hospital authorities insisted for production of a court order to release the detenue.

The question before the court was whether the detenue could be permitted to go along with the petitioner to lead a live-in relationship because both of them belonged to the same gender and could not solemnize a valid marriage between them.

At the outset, the Bench relied on the judgment of Apex Court in Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197 and observed that the court cannot assume the role of parens patriae and curtail the liberty of a person who has attained the age of majority.

Shafin Jahan v. Asokan, 2018 SCC OnLine SC 343 was relied on to note that in habeas corpus petitions the role of Court is to find out the independent choice of detenue and in exercising its jurisdiction, caution must be exercised to not transgress into the area of determining the suitability of partners to a marital life.

The Bench observed that the Apex Court in the case of Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492 had clearly held that even if parties are not competent to enter into wedlock, they have the right to live together even outside the wedlock.

Lastly, the Bench noted down observations in the case of Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350stating that discrimination on the basis of one’s sexual orientation is violative of the fundamental right to freedom of expression and constitutional morality cannot be martyred at the altar of social morality.

On the strength of principles enumerated in the aforesaid pronouncements of Supreme Court, the Bench held that live-in relationship between petitioner and the detenue would not offend any provision of the law and directed the detenue to be set at liberty to go along with the petitioner, as desired by her. [Sreeja S. v. Commissioner of Police, 2018 SCC OnLine Ker 3578, decided on 24-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the decision of Bombay High Court whereby it had allowed a writ of habeas corpus directing the appellants to produce detenu under lawful custody.

One Mukesh Pandian, a private detective, was arrested by the police on information that he was obtaining and selling call record details of different people. In the course of investigation, Rizwan Alam Siddique (detenu) was also arrested on suspicion of obtaining call records of the wife of bollywood actor Nawazuddin Siddique. The said Rizwan was not cooperating in the investigation and in fact was found destroying evidence, pursuant to which he was arrested and produced before jurisdictional Magistrate who sent him to police custody. The respondent, wife of the detenu, rushed to the High Court and filed a habeas corpus writ  petition for production of her husband before the Court and setting him at liberty. The High Court, vide the order impugned, allowed the petition and set the detenu at liberty. The High Court also made scathing observations against the police officials concerned. Against the said order, the appellants filed the instant appeal.

The Supreme Court perused the record and considered submissions made by the parties. The Court relied on its earlier decisions in Saurabh Kumar v. Jailor, (2014) 13 SCC 436 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and observed that the question — ‘whether a writ of habeas corpus can be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation?’ — was no more res integra. In Court’s opinion, no writ of habeas corpus could have been issued in such circumstances. When the writ was allowed, the detenu was under lawful custody pursuant to the orders of the Magistrate. The petition was filed without challenging the order of the Magistrate. It was not a case of continued illegal detention. Furthermore, since the petition was not maintainable in the first place, the High Court should have been loath in entering into the merits of arrest and recording scathing observations against the police officials. Therefore, the order impugned was set aside. The detenu had already been released after the order, so the Investigating Officer was directed to proceed strictly in accordance with law. The appeal was disposed of in the terms above. [State of Maharashtra v. Tasneem Rizwan Siddique,2018 SCC OnLine SC 1348, dated 05-09-2018]

Case BriefsSupreme Court

Supreme Court: Giving major relief to Champion Sangma, the Chairman and Commandar-in-Chief of Garo National Liberation Army (GNLA), the bench of Dr. AK Sikri and Ashok Bhushan, JJ ordered immediate release of Sangma and said that the manner in which the State of Meghalaya proceeded in the matter

“is clearly impermissible, violative of the rule of law and offends the petitioner’s right under Article 21 of the Constitution as he has been detained in custody by adopting totally faulty and illegal process.”

Background of the case:

  • Several criminal cases have been registered against Sangma and in most of these cases, he is either acquitted or discharged.
  • In all the other pending cases, he has been granted bail expect in one case instituted under Section 364A read with Section 34 of the Penal Code, 1860 in the year 2011. Sangma was declared an absconder in 2012. As on January 2018, the position was that the petitioner had been granted bail in the pending cases against him and, therefore, in normal course, he should have been released from custody.
  • On 24.01.2018, orders were passed by the Additional District Magistrate (Judicial) allowing the prayer of the prosecution to arrest Sangma.

Conclusion:

The Court declared the order dated 24.01.2018 as non-est, nullity and without any jurisdiction and hence, the custody of Sangma, who has otherwise been released on bail in all other cases, is clearly illegal.

The important aspects that were taken note of by the Court to reach this conclusion were:

  • Though the prosecution has moved an application before the Court of Additional District Magistrate (Judicial), North Garo Hills, opposing the bail application made by the petitioner in the Court, in fact, no such bail application was ever filed by the petitioner. There was no question of filing any bail application in the first place as the petitioner was never arrested in this case.
  • When the aforesaid application of the prosecution purportedly opposing the bail application of the petitioner was filed, the learned Additional District Magistrate (Judicial) did not have any records of the case except the application which was put up before him and the averments made therein.
  • No notice of this application was ever served upon the petitioner. The application was considered exparte and treating the averments made in the said application as gospel truth, the prayer made in the application was allowed.

The Court also noticed that the State failed to respond to it’s query as to under what provision, in the aforesaid circumstances, the application should be filed when there was no formal arrest of the petitioner, though nobody prevented the respondent to arrest the petitioner in the aforesaid case. It said:

“We have not understood the manner in which the prosecution has acted in this case.”

As a result, the Court ordered the release of Sangma. It, however, made clear that it has not restrained the State from taking any appropriate legal steps in the aforesaid FIR/chargesheet, which are permissible in law. [Champion R. Sangma v. State of Meghalaya, 2018 SCC OnLine SC 262, order dated 20.03.2018]

Case BriefsHigh Courts

High Court of Karnataka: In its recent judgment, a Single Bench of Ashok B. Hinchigeri & K.S. Mudagal, JJ. observed that “habeas corpus cannot be granted when a person has been committed to custody under an order from a competent court.”

The petitioner brought an appeal against his ex-wife for wrongfully detaining their daughter, after a consensual divorce order was passed by the Court of Maricopa and awarded joint legal decision-making regarding the child. The petitioner alleged that the respondent detained the child beyond the vacation schedule and since then he had denied access to the petitioner. The respondent submits to the Court that the Family Court has granted an interim order restraining the petitioner from interfering with the lives of the respondent and her daughter. She further submits that neither is India a signatory to the Hague Convention by which the orders of the American Court could be enforced against her, nor is the writ of the petitioner maintainable as per the Family Court’s order. In her defense, she claims that the petitioner had coerced her into submission to the jurisdiction of the American Court, and Section 13(c), (e) and (f) of the Code of Civil Procedure renders the American Court’s order inconclusive and not binding upon her.

The Court observed that the facts of judgments relied upon by the petitioner were different from those of the case present before it. The bench held that the writ is unavailable when a competent court of law, in pursuance of a subsisting order, has handed over the custody of the child to the mother. It further noted that the writ of habeas corpus cannot be maintained, and the Family Court was the competent court in this matter. [Sriram Sankaran v. State of Karnataka, Writ Petition No. 164 of 2016, decided on 29-05-2017]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Ajai Lamba and Ravindra Nath Mishra-II, JJ held that the  practice of taking witness in custody for recording statement under Section 164 CrPC is not contemplated under the Code of Criminal Procedure or any other law. The respondents were therefore held liable to pay a sum of 1,50,000 so as to compensate the petitioner for illegally confining her for the purpose of investigation.

In the present case, father of the Petitioner filed a Police Complaint under Section 363 and 366 of Penal Code stating that his daughter has been kidnapped by her boyfriend (Chhote Lal), though the same was being denied by the Petitioner (Seema Devi) and confession made by her that she married Chhote Lal willingly. It was alleged that the police took the petitioner Seema Devi and her husband Chhote Lal in custody/detention from their residence whereupon Chhote Lal was released from custody, however, detention of Seema Devi was maintained . Thus, the petitioner filed a writ of habeas corpus through her husband for her release from wrongful and illegal detention/confinement.

Hence, the Court ruled out that right to liberty of the petitioner has been violated by keeping her in confinement for 15 days and directed the Station House Officer and the Investigating officer to pay a sum of 1,50,000 to the petitioner as compensation. The bench directed the authorities not to confine witnesses for the purpose of investigation of a crime and added “confining is when a person is enclosed within bounds; limit or restrict; to prevent from leaving a place. Even if the movement of a person is limited or restricted to his own house, it would tantamount to his/her confinement”. [Smt. Seema Devi v. State of Uttar Pradesh; Habeas Corpus No. – 10006 of 2016; decided on 25.05.2016].