# Smt. Madhubala Mishra & Anr. Petitiners v. Shyam Dhar Dubey @ Dada & Ors

- **Citation:** (2020) 8 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-27
- **Case number:** Habeas Corpus Writ Petition No. 410 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhubala-mishra-anr-petitiners-v-shyam-dhar-dubey-dada-ors-46049
- **Pages:** 3

## Headnote

A. Constitution of India, 1950-Article
226-Habeaus Corpus writ-In compliance
with the rule nisi issued to ascertain
whether detenue is staying with her
daughter of her free will or she is
illegally confined, a lady judicial officer
went over to the residence of the
detenue to record her statement-she
finds there is no illegal confinement of
dentenue, she is living there of her free
will-therefore, no good ground to make
the rule nisi absolute. The rule is
discharged.( Para 1 , 5)

B. Principle-Rule Nisi-it is well settled
as a result of several decisions that the
writ of habeas corpus is not granted as
of course as would an original writ for
initiating an action. it is issued only on
probable cause being shown by an
affidavit either of the person detained
or of some other person on his behalf.
The applicant for the writ must show
prima facie that there is sufficient
ground for his discharge the writ would
not issue and his application would be
summarily rejected. if no legal ground
was
made
to
appear
justifying
detention, the person detained would be
immediately discharged. On the other
hand,
the
application
would
be
dismissed if the detention was shown to
be justified. (Para 1 to 5)

The Petition is dismissed. (E-6)

## Text

8 All. Smt. Madhubala Mishra & Anr. Vs. Shyam Dhar Dubey @ Dada & Ors.
397

18. In light of this, it is submitted
by Sri K.S. Amist that interest also
requires to be re-calculated as being
consistent in the old matter.

19. In view of decision of the Apex
Court in Civil Appeal No.242/243 of
2020 (National Insurance Company
Ltd. vs Birender and others) decided
on 13 January, 2020 which is the latest in
point of time, rate of interest should have
been 9 per cent from the date of filing of
claim petition before Tribunal till the
Judgment and 6 per cent thereafter till the
amount is deposited. The Insurance
Company shall recalculate the amount
and deposit the same before the Tribunal
as expeditiously as possible not later than
December,
2020.
Record
and
proceedings be sent back.

20. As more than twenty years have
elpased, by now, the minor children
would have become major. The amount
be disbursed in equal proportion to all
and no amount be kept in fixed deposit as
per the latest Judgment of Apex Court in
A.V. Padma and others Vs. R.
Venugopal and others, 2012 (3) SCC
378.

21. Both the appeals are partly
allowed.
----------
(2020)08ILR A397
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 410 of 2020

Smt. Madhubala Mishra & Anr. Petitiners
Versus
Shyam Dhar Dubey @ Dada & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Vivek Tiwari, Sri K.S. Tiwari

Counsel for the Respondents:
A.G.A.

A. Constitution of India, 1950-Article
226-Habeaus Corpus writ-In compliance
with the rule nisi issued to ascertain
whether detenue is staying with her
daughter of her free will or she is
illegally confined, a lady judicial officer
went over to the residence of the
detenue to record her statement-she
finds there is no illegal confinement of
dentenue, she is living there of her free
will-therefore, no good ground to make
the rule nisi absolute. The rule is
discharged.( Para 1 , 5)

B. Principle-Rule Nisi-it is well settled
as a result of several decisions that the
writ of habeas corpus is not granted as
of course as would an original writ for
initiating an action. it is issued only on
probable cause being shown by an
affidavit either of the person detained
or of some other person on his behalf.
The applicant for the writ must show
prima facie that there is sufficient
ground for his discharge the writ would
not issue and his application would be
summarily rejected. if no legal ground
was
made
to
appear
justifying
detention, the person detained would be
immediately discharged. On the other
hand,
the
application
would
be
dismissed if the detention was shown to
be justified. (Para 1 to 5)

The Petition is dismissed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. In compliance with the rule nisi
issued by this Court vide order dated
398 INDIAN LAW REPORTS ALLAHABAD SERIES
24.08.2020, the learned Chief Judicial
Magistrate, Jaunpur nominated a lady
Judicial Officer to go over to the
residence
of
the
detenue,
Smt.
Prabhawati Devi, who stays with her
other daughter Manju Devi Dubey and to
record her statement. This rule nisi was
issued
to
ascertain
whether
Smt.
Prabhawati is staying with respondent no.
2, Manju Devi Dubey of her free will or
she is illegally confined.

2. This modified rule was issued
looking
to
the
extraordinary
circumstances prevalent due to Covid-19
pandemic. Normally, this Court, under
the prevalent circumstances, would have
required Smt. Prabhawati Devi to be
produced before the learned Chief
Judicial
Magistrate
or
some
other
Judicial Officer, who would be asked to
record her statement acting on this
Court's Commission. The Commission
here was, however, modified to ask a
lady Judicial Officer nominated by the
learned Chief Judicial Magistrate to go
over to the residence of Smt. Prabhawati
Devi, considering her extreme old age
which would imperil her life if she were
forced to be produce in court.

3. In compliance with the Court's
order,
the
learned
Chief
Judicial
Magistrate, Jaunpur nominated Smt.
Sneha, Judicial Magistrate-II, Jaunpur to
execute the Commission issued by this
Court.
The
learned
Chief
Judicial
Magistrate has sent a copy of the
statement of Smt. Prabhawati Devi
through electronic mode recorded by the
learned
Judicial
Magistrate
on
26.08.2020 at the former's residence.

4. It must be remarked that the
Judicial Officer has gone about the
exercise very carefully and has done a
remarkable effort. She has gone over to
the residence of Smt. Prabhawati, who
stays with her other daughter, Manju
Devi Dubey and ascertained her identity
very
carefully.
Thereafter
she
has
recorded the fact that Smt. Prabhawati
Devi is very old and hard of hearing. The
learned Judicial Magistrate has also
ascertained whether her mental faculties
are good enough to understand what she
is being asked. Once satisfied, the
learned
Judicial
Magistrate
has
proceeded to record Smt. Prabhawati's
statements which is in the following
words:

"मुझे
मझेरी
उम्र
िहहीों
ममालल म हहै। (ममोंजल दझेवरी ककी
र्तरफ इिमारमा कर कहमा ) यझे
मझेररी
बनबबनटयमा
हहै।
मिमुनबमालमा मझेररी नबझेनटरी हहै,
ममुझझे ज्यमादमा ध्यमाि िहहीों हहै।
महै ममोंजल दझेवरी कझे समाथ कनब
सझे रह रहरी हहह ममुझझे ध्यमाि
िहहीों हहै। महै ममोंजल कझे समाथ
अपिरी मजजी सझे रह रहरी हहह।
मिमु कझे पमास िहहीों जमाउमोंगरी,
अपिझे कमरझे मम जमाउमोंगरी। मिमु
कमा बनबयमाह मिझे गग पमालपमुर म
म म बकयमा थमा। मिमु कझे पमास
नबहहर्त वरर पहलझे गयरी थरी अनब
िहरी जमािमा हहै। ममोंजल मझेररी
सझेवमा
करर्तरी
हहै।
समुिकर
र्तस्दरीक बकयमा।

प्रभमावर्तरी दझेवरी दमारमा नबग लझे
जमािझे
पर
अक्षरससः
अमोंबकर्त
बकयमा गयमा।
Sneha
26/08/2020
8 All. Sunita Maurya Vs. Principal Judge, Family Court Distt. Pratapgarh & Anr.
399
JM-Iind
Jaunpur"

5. The aforesaid statement does not
spare a shadow of doubt that the second
petitioner, Smt. Prabhawati Devi is
staying with her other daughter Smt.
Manju Devi Dubey of her free will and
without any restraint. She is not confined
there, much less illegally confined. There
is, therefore, no good ground to make the
rule nisi absolute. The rule is discharged
and this petition is dismissed.

6. This Court places on record its
appreciation for the excellent work done by
Smt. Sneha, Judicial Officer-II, Jaunpur.

7. Let this order be communicated to
the learned District Judge, Jaunpur by the
Joint Registrar (compliance) within 24 hours.
----------
(2020)08ILR A399
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 937 of 2020

Sunita Maurya ...Petitioner
Versus
Principal Judge Family Court Distt.
Pratapgarh & Anr. ...Respondents

Counsel for the Petitioner:
Sunil Kumar Singh

Counsel for the Respondents:
Bajrang Bahadur Singh

A. Civil Law - Hindu Marriage Act (25 of
1955)- Section 13B - Divorce by mutual
consent
- Cooling off six months'
statutory period u/s 13-B - can be
waived - purpose to avoid further agony
of parties, if marriage irretrievably
broken down - Waiver pre-condition -
only when all efforts for mediation,
conciliation etc. to reunite parties have
failed & there is no likelihood of success

Applicant, without getting her marriage dissolved
by decree of divorce, declared herself as divorcee
in her job application - Only to cover up false
statement made by her subsequently filed divorce
petition by mutual consent alongwith application
for waiver of statutory six months period -
vaguely stated in application that petitioner going
to get a job for which decree of divorce needed &
in case waiting period was not waived, she would
be deprived of the job - Held - in present case
purpose of seeking waiver of six months statutory
period is only to get decree of divorce as early as
possible to get government job - petitioner
cannot be heard to allege her own fraudulent
purpose as the reason for waiving the statutory
waiting period (Para 15)

B. Civil Law - Hindu Marriage Act, 1955-
Section 23 (2) - Family Courts Act, 1984 -
Section 9 - Code of Civil Procedure,1908 -
Rule 32-A, Rule 3 -. Divorce - Settlement -
Duty of Court to first make sincere efforts
for Settlement - to bring the parties to
reconciliation (Para 19)

Petition for mutual divorce presented on
07.12.2019, case registered on 11.12.2019,
parties directed to appear before mediator on
20.01.2020 - alleged mediation taken on
11.12.2019 & 12.12.2019 without any order
from court - No explanation as to how matter
taken up on 11.12.2019 & 12.12.2019 -
possibility of the mediator submitting report on
extraneous consideration - no efforts by
mediator to reunite parties - straightaway
submitted report to facilitate the parties to move
an application for waiver - Held - In the absence
of any effort to reconcile the contesting parties,
the statutory waiting period could not be
condoned (Para 26, 31, 34)

Dismissed. (E-5)

List of cases cited:-