# Mohd. Ahmad & Anr v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 793
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Habeas Corpus Writ Petition No. 315 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ahmad-anr-v-state-of-u-p-ors-47398
- **Pages:** 3

## Headnote

A.G.A.

(A) Habeas Corpus - writ of habeas corpus -
prerogative writ - an extraordinary remedy -
festinum remedium - habeas corpus would be
dependent on the jurisdictional fact - It is only
where the jurisdictional fact is established
that the applicant becomes entitled to the writ
as of right - issuance of a 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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised only when a clear case is made
out.(Para - 7,8,9,10 )

Petitioner no.2, wife of the petitioner no.1 - left her
matrimonial home - on account of some serious
differences with her husband (petitioner no.1) - an
application for restitution of conjugal rights was filed
by the petitioner no.1 - pending before Principal
Judge, Family Court. (Para - 2)

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.
Proceedings for restitution of conjugal rights being
pending between the parties before the Family Court,
it is open to the petitioner no.1 to pursue the said
remedy. (Para - 12,13 )

Habeas corpus petition dismissed. (E-7)

List of Cases cited:-

## Text

9 All Mohd. Ahmad & Anr. Vs. State of U.P. & Ors.
793
(1) GLH (SC), 442, the order of
investment is not passed because applicants
/claimants are neither illiterate or restic
villagers.

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansaguti P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in
2007(2) GLH 291, total amount of interest,
accrued
on
the
principal
amount
of
compensation is to be apportioned on financial
year to financial year basis and if the interest
payable to claimant for any financial year
exceeds Rs.50,000/-, insurance company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income Tax
Act, 1961 and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow the
claimant to withdraw the amount without
producing the certificate from the concerned
Income- Tax Authority. The aforesaid view has
been reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal From
Order No.23 of 2001 (Smt. Sudesna and others
Vs. Hari Singh and another) while disbursing
the amount.

16. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount already
deposited be deducted from the amount to
be deposited.

17.
Record
and
proceedings
be
remitted to tribunal.

18. Fresh Award be drawn accordingly
in the above petition by the tribunal as per
the
modification
made
herein.
The
Tribunals in the State shall follow the
direction
of
this
Court
as
herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and apply the judgment of A.V.
Padma (supra). The same is to be applied
looking to the facts of each case.

19. This Court is thankful to both the
counsels to see that the matter is disposed
of.
----------
(2021)09ILR A793
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

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

Habeas Corpus Writ Petition No. 315 of 2021

Mohd. Ahmad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Avinash Pandey

Counsel for the Respondents:
A.G.A.

(A) Habeas Corpus - writ of habeas corpus -
prerogative writ - an extraordinary remedy -
festinum remedium - habeas corpus would be
dependent on the jurisdictional fact - It is only
where the jurisdictional fact is established
that the applicant becomes entitled to the writ
as of right - issuance of a 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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised only when a clear case is made
out.(Para - 7,8,9,10 )

Petitioner no.2, wife of the petitioner no.1 - left her
matrimonial home - on account of some serious
differences with her husband (petitioner no.1) - an
application for restitution of conjugal rights was filed
by the petitioner no.1 - pending before Principal
Judge, Family Court. (Para - 2)

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.
Proceedings for restitution of conjugal rights being
pending between the parties before the Family Court,
it is open to the petitioner no.1 to pursue the said
remedy. (Para - 12,13 )

Habeas corpus petition dismissed. (E-7)

List of Cases cited:-

1. Mohammad Ikram Hussain Vs St. of U.P. & ors.
,1964 AIR 1625

2. Kanu Sanyal Vs D.M. Darjeeling, (1973) 2 SCC 674

3. Soniya & anr. Vs St. of U.P. & ors. , 2021 (145)
ALR 773

4. Manjita Devi & anr. Vs St. of U.P. & ors. , 2021 (2)
AWC 1055

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

1. Heard Sri Avinash Pandey, learned
counsel for the petitioners and Ms. Rachna
Tiwari,
learned
Additional
Government
Advocate appearing for the State-respondents.

2. The undisputed facts as reflected from
the pleadings on record are that the petitioner
no.2, wife of the petitioner no.1, left her
matrimonial home sometime in the month of
June, 2019 on account of some serious
differences with her husband (petitioner no.1)
and an application for restitution of conjugal
rights was filed by the petitioner no.1 which
was registered as Case No. 772 of 2019 (Mohd.
Ahmad vs. Arshi) and the same is stated to be
pending before the court of the Principal Judge,
Family Court, Saharanpur.

3. Counsel for the petitioners has sought
to contend that subsequent thereto sometime in
the month of November, 2020 an information
was received by him suggesting that petitioner
no.2 was being detained at her parental home
and in regard to the same certain applications
are also stated to have been moved by him
before the respondent authorities.

4. Learned Additional Government
Advocate submits that once it has been
admitted that the petitioner no.2 (wife) left her
matrimonial home sometime in the month of
June, 2019 on account of serious differences
with her husband (petitioner no.1), it is not a
case of illegal detention and a writ of habeas
corpus would not be entertainable. This would
be moreso for the reason that an application
seeking restitution of conjugal rights is stated to
have been filed by the petitioner no.1 and the
same is pending.

5. Learned counsel for the petitioners has
not disputed the factual position with regard to
the petitioner no.2 having left her matrimonial
home in the month of June, 2019 and also that
she has not returned back thereafter.

6. There is no material on record to
suggest that the petitioner no.2 was forcibly
taken away; rather the facts indicate that the
petitioner no.2 left her matrimonial home on her
own accord on account of some serious
differences with her husband (petitioner no.1).
The application seeking restitution of conjugal
rights, filed by the petitioner no.1-husband,
contains a clear narration of facts in this regard.

7. The writ of habeas corpus is a
prerogative writ and an extraordinary remedy. It
9 All Smt. Netrawati Yadav & Anr. Vs. State of U.P. & Ors.
795
is writ 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.
and others1 and Kanu Sanyal v District
Magistrate Darjeeling2.

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. The observations made in the
decision in Mohammad Ikram Hussain
(supra) in this regard are as follows:-

"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 S. 100 of
the Code of Criminal Procedure is always used.
Then there is the remedy of 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. It
is of course singularly inappropriate in cases
where the petitioner is himself charged with a
criminal offence in respect of the very person for
whose custody he demands the writ."

9. 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.

10. In view of the other remedies available
for the purpose under criminal and civil law,
issuance of a 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 is made
out.

11. The aforementioned legal position has
been stated in recent decision of this Court in
Soniya and Another vs. State of U.P. and
Others3 and subsequently reiterated in Manjita
Devi and another vs. State of U.P. and
Others4.

12. In the facts of the present case, 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.

13. Proceedings for restitution of conjugal
rights being pending between the parties before
the Family Court, it is open to the petitioner no.1
to pursue the said remedy.

14. Subject to the aforesaid observation
the petition stands dismissed.
----------
(2021)09ILR A795
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 529 of 2021

Smt. Netrawati Yadav & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents