# Jaishree & Anr v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Habeas Corpus Writ Petition No. 1041 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaishree-anr-v-state-of-u-p-ors-51327
- **Pages:** 3

## Headnote

Criminal Law - Habeas Corpus - Hindu
Marriage Act, 1955 - Section 9 - Code of
Criminal Procedure, 1973 - Sections 97 & 98 -
Petitioners sought writ of habeas corpus alleging
illegal detention of petitioner no.1 (wife) by her
maternal uncle, respondent no.4. Court held: (1) Writ
of habeas corpus is an extraordinary remedy, not a
matter of course, requiring a clear prima facie case of
unlawful
detention.
(2)
Petitioner
no.1
left
matrimonial home voluntarily; no material established
illegal detention. (3) Alternative remedies exist under
Section 97 (search for wrongfully confined persons)
and Section 98 (restoration of abducted females) of
CrPC, or Section 9 (restitution of conjugal rights) of
Hindu Marriage Act, 1955. (4) Writ of habeas corpus
not maintainable where facts are disputed or unclear
(Soniya Vs St. of U.P., followed). Petition dismissed;
petitioner no.2 at liberty to pursue other legal
remedies. (Paras 7-14)

Petition Dismissed.

Case Law Cited:

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In the instant case, the confirmatory
order has been passed on 2.11.2023,
whereby the petitioner herein was directed
to be detained for a period of three months
from the initial detention order i.e.,
18.9.2023. Therefore, after the expiry of
three months the petitioner's detention
becomes illegal and he is liable to be
released forthwith. For the reasons stated
above, the writ petition is allowed. It is
declared that the detention of the petitioner
herein subsequent to the expiry of three
months
from
18.9.2023
as
per
the
confirmatory order passed under section
12(1) of the Act, 1980 is illegal and the
subsequent orders extending the detention
of the petitioner herein is also illegal and
not in accordance with law. Therefore, the
order dated 11.12.2023 extending the period
of detention of the petitioner herein is hereby
set-aside.

10. We, therefore, direct the petitioner,
Abbas Ansari (the detenue) to be set at liberty
forthwith unless he is required in any other case.
----------
(2024) 2 ILRA 122
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1041 of 2023

Jaishree & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Monis, Sri Bhanu Kumar Ratnakar

Counsel for the Respondents:
G.A.
Criminal Law - Habeas Corpus - Hindu
Marriage Act, 1955 - Section 9 - Code of
Criminal Procedure, 1973 - Sections 97 & 98 -
Petitioners sought writ of habeas corpus alleging
illegal detention of petitioner no.1 (wife) by her
maternal uncle, respondent no.4. Court held: (1) Writ
of habeas corpus is an extraordinary remedy, not a
matter of course, requiring a clear prima facie case of
unlawful
detention.
(2)
Petitioner
no.1
left
matrimonial home voluntarily; no material established
illegal detention. (3) Alternative remedies exist under
Section 97 (search for wrongfully confined persons)
and Section 98 (restoration of abducted females) of
CrPC, or Section 9 (restitution of conjugal rights) of
Hindu Marriage Act, 1955. (4) Writ of habeas corpus
not maintainable where facts are disputed or unclear
(Soniya Vs St. of U.P., followed). Petition dismissed;
petitioner no.2 at liberty to pursue other legal
remedies. (Paras 7-14)

Petition Dismissed.

Case Law Cited:

1. Soniya Vs St. of U.P. (Para 6, 12)

2. Manjita Devi Vs St. of U.P. (Para 12)

3. Mohd. Ahmad Vs St. of U.P. (Para 12)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Mohd. Monis, learned
counsel for the petitioners and Sri Pankaj
Saxena, learned AGA-I appearing for the Staterespondents.

2. The present petition has been filed for a
writ of habeas corpus alleging that the petitioner
no.1, wife of the petitioner no.2, is under
illegal detention of the respondent no.4,
who is stated to be the maternal uncle of
petitioner no.1.

3. The case as set up in the petition
indicates that, on 24.07.2023, the petitioner
no.1 left the house of petitioner no.2
alongwith some cash and jewellery. It is
2 All. Jaishree & Anr. Vs. State of U.P. & Ors.
123
further averred that consequent to filing of
a complaint at the police station, the
petitioner no.1 agreed to come back to her
matrimonial
home;
however,
on
27.11.2023, she again left the house of
petitioner no.2 alongwith her maternal
uncle i.e. respondent no.4.

4. It is sought to be asserted that
subsequently despite efforts being made by
the petitioner no.2 (husband), the petitioner
no.1 (wife) is not willing to come back to
her matrimonial home.

5. Learned AGA-I submits that from
the pleadings in the writ petition it is
apparent that petitioner no.1 has left her
matrimonial home on her own and there is
no material to suggest that she is under
illegal detention.

6. Accordingly, it is submitted that in
the aforesaid circumstances, the petition
seeking a writ of habeas corpus would not
be maintainable. Reliance in this regard is
placed upon the judgment of this Court in
Soniya and another Vs. State of UP and
others1.

7. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is a writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause being
shown.

8. The writ of habeas corpus has been
held
as
a
festinum
remedium
and
accordingly
the
power
would
be
exercisable in a clear case. 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.

9. The power to direct search for
persons wrongfully confined is provided
under Section 97 of the Code of Criminal
Procedure, 1973 whereas Section 98
provides
the
procedure
to
compel
restoration of abducted females. In a
situation where the husband seeks to assert
that the wife, without reasonable cause, is
refusing to return to her matrimonial home,
it would be open for him to seek the
remedy of restitution of conjugal rights
under Section 9 of the Hindu Marriage Act,
1955. The recourse to the latter remedy
may be sought where the detention does not
amount to an offence and to the former if it
does. While invoking either of these
remedies, all the issues relating to facts can
be agitated and examined, whereas a writ
of habeas corpus may not be issued where
facts are disputed or are not clearly
established.

10. The exercise of the extraordinary
jurisdiction for issuance of writ of habeas
corpus would be dependent on the
jurisdictional fact where the petitioner
establishes a prima facie case that the
detention is unlawful, which apparently is
not demonstrated from the facts which are
on record in the present case.

11. In view of the other remedies
available for the purpose, under criminal
and civil law, exigence of a writ of habeas
corpus at the behest of a husband to regain
his wife would be rare and may not be
available as a matter of course and the
power in this regard may be exercised only
when a clear case is made out.

12. The aforementioned legal position
has been stated in a recent decision of this
Court in Soniya and another Vs. State of
UP
and
others1
and
subsequently
124 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated in Manjita Devi and another
Vs. State of UP and others2 and Mohd.
Ahmad and another Vs. State of UP and
others3.

13. In the facts of the present case, the
petitioner no.1 having left her matrimonial
home, on her own volition, and there being
no material to establish the factum of illegal
detention, the petition seeking writ of
habeas corpus at the behest of the petitioner
no.2 (husband), would not be entertainable.

14. It would be open to the petitioner
no.2 to avail the appropriate legal remedies,
under the civil and criminal law, as he may
be advised.

15.

Subject
to
the
aforesaid
observations, the petition stands dismissed.
----------
(2024) 2 ILRA 124
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1046 of 2023

Sunil Chachuda ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Sujan
Singh,
Sri
Anjani
Kumar
Raghuvanshi

Counsel for the Respondents:
G.A., A.S.G.I., Sri Om Prakash Mishra

Civil Law - National Security Act, 1980 -
Sections 3(2), 3(3), 3(4), 10, 11, 12(1) &
13 - Petitioner challenged detention order dated
30.01.2023 under Section 3(2), confirmed on
13.03.2023 for three months, and extended on
27.10.2023 for 12 months. Court held: (1)
Confirmatory order under Section 12(1) is final;
St. Government cannot review or extend it
(Pesala Nookaraju Vs Govt. of Andhra Pradesh,
2023 SCC OnLine SC 1003; Ameena Begum Vs
St. of Telangana, (2023) 9 SCC 587). (2) If
confirmatory order specifies a period, detention
is valid only for that period; if unspecified,
detention may extend up to 12 months per
Section
13.
(3)
Confirmatory
order
of
13.03.2023 specified three months; extension
order of 27.10.2023 was illegal. (4) Detention
beyond three months from 30.01.2023 was
unlawful. Extension orders quashed; petitioner
to be released forthwith unless required in
another case. (Paras 10-13)

Writ Petition Allowed.

Case Law Cited:

1. Pesala Nookaraju Vs Govt. of Andhra
Pradesh, 2023 SCC OnLine SC 1003 (Paras 5,
10, 11, 12)

2. Ameena Begum Vs St. of Telangana, (2023) 9
SCC 587 (Paras 5, 11, 12)

3. Cherukuri Mani Vs St. of A.P., (2015) 13 SCC
722 (Paras 6, 9, 10, 11)

4. Abdul Razak Vs St. of Karn., ILR 2017 Kar
4608 (FB) (Para 10)

(Delivered by Hon'ble Anish
Kumar Gupta, J.)

1. Counter affidavit filed on behalf of
respondent no.3 is taken on record.

2. Heard Sri Sujan Singh, learned
counsel for the petitioner, Sri Amit Sinha,
learned A.G.A. for the State and Sri Om
Prakash Mishra, learned counsel for the
respondent no.6- Union of India.

3. The instant application has been
filed seeking quashing of the impugned