# Smt. Netrawati Yadav & Anr v. State of U.P. & Ors. 796 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 9 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-25
- **Case number:** Habeas Corpus Writ Petition No. 529 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-netrawati-yadav-anr-v-state-of-u-p-ors-796-indian-law-reports-allahabad-47399
- **Pages:** 3

## Headnote

A.G.A., Sri Sarvjeet Sing

(A) Habeas Corpus - Petitioner no.2 wants
to defame the image of petitioner no.1 in
the society - only with the said intention -
present petition filed before this Court -
so that he may be able to succeed in his
plan to anyhow get the custody of
petitioner no.1 - whereas no marriage
took place as stated by petitioner no.1
before this Court - Held - action of petitioner
no.2 is illegal and against the norms of society
in which we are living. (Para - 8 )

Habeas corpus petition dismissed. (E-7)

## Text

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
796 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Mahendra Singh

Counsel for the Respondents:
A.G.A., Sri Sarvjeet Sing

(A) Habeas Corpus - Petitioner no.2 wants
to defame the image of petitioner no.1 in
the society - only with the said intention -
present petition filed before this Court -
so that he may be able to succeed in his
plan to anyhow get the custody of
petitioner no.1 - whereas no marriage
took place as stated by petitioner no.1
before this Court - Held - action of petitioner
no.2 is illegal and against the norms of society
in which we are living. (Para - 8 )

Habeas corpus petition dismissed. (E-7)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Mahendra Singh, learned
counsel for the petitioners, learned AGA
for the State and Sri Sarvajeet Singh,
learned counsel for respondent no.4.

2. This habeas corpus writ petition
has been filed with the following prayer:

"Issue a writ, order or direction in
the nature of habeas corpus directing the
respondent no.4 to produce the petitioner no.1
before this Hon'ble Court and set her free from
illegal detention of respondent no.4."

3. Learned counsel for respondent
no.4 submits that in compliance of the
order dated 4.8.2021 passed by this Court,
petitioner no.1 Netrawati Yadav is present
before this Court along with his father Sri
Tejpal respondent no.4, resident of village
Saidola, P.S. Faijganj Behta District
Budaun. Both of them have been identified
by Sri Sarvajeet Singh, Advocate.

4. Petitioner no.1 Netrawati Yadav
has been brought before this Court by lady
constable 691-Neeraj (PNO 112530626),
P.S. Faijganj Behta, District Budaun.

5. On being asked from petitioner
no.1 as to whether she has solemnized
marriage with petitioner no.2, she has
refused the same and states that she has not
solemnized marriage with him. She further
states that the present writ petition has been
filed only with the intention to defame her
image in the society. She has already
married with one Banti, who has also come
with her and is present in the campus of
High Court. She has further stated that
petitioner no.2 Dharmendra was regularly
teasing her in her village because his sister
is married in the village of Netrawati
Yadav and he used to come there only with
the intention to defame her. The father of
Netrawati Yadav namely Sri Tejpal has
also stated that he solemnized the marriage
of his daughter with Banti as per Hindu
rites and rituals.

6. On the other hand, learned counsel
for the petitioners submits that the marriage
of petitioner no.1 Netrawati Yadav took
place with petitioner no.2 Dharmendra in
Arya Samaj Vivah Trust, Delhi on
12.7.2021. When this Court asked from
petitioner no.1 Netrawati Yadav regarding
the marriage certificate, she has stated that
this marriage certificate is forged and no
marriage took place.

7. Learned AGA also supports the
contention of learned counsel for respondent
no.4 and submits that prima facie the
marriage certificate appears to be forged.

8. Considering the arguments advanced
by learned counsel for the parties and after
perusal of the record, this Court finds that
petitioner no.2 wants to defame the image of
petitioner no.1 in the society and only with
the said intention the present petition has
9 All Kali Prasad @ Pandit Singh Vs. Union of India & Ors.
797
been filed before this Court so that he may be
able to succeed in his plan to anyhow get the
custody of petitioner no.1, whereas no
marriage took place as stated by petitioner
no.1 Netrawati Yadav before this Court. The
action of petitioner no.2 is illegal and against
the norms of society in which we are living.
As per the statement of petitioner no.1 and
her father Sri Tejpal, she is married with one
Banti who also accompanied her in the High
Court campus.

9. Accordingly, the writ petition is
dismissed with cost of Rs.50,000/- (rupees
fifty thousand) which shall be paid by
petitioner no.2 Dharmendra to petitioner no.1
Netrawati Yadav by way of bank draft within
one month from today. In case the cost is not
paid by petitioner no.2 to petitioner no.1, the
same shall be recovered as arrears of land
revenue.

10. The copy of the order be sent by the
office to the concerned CJM for necessary
compliance
----------
(2021)09ILR A797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Habeas Corpus Writ Petition No. 806 of 2020

Kali Prasad @ Pandit Singh ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar Singh, Sri Anil Kumar Yadav,
Sri Daya Shankar Mishra, Sri Chandrakesh
Mishra
Counsel for the Respondents:
A.S.G.I., Ajay Singh, G.A.

(A) Habeas Corpus - National Security Act,
1980 - Section 3(2),3(3) - Order of
detention - "forthwith" - used in Section 3
does not mean instantaneous but without
undue delay and within a reasonable time
which is to be ascertained from the facts
of the case - preventive detention is also
described as "jurisdiction of suspicion" -
Court must be satisfied that the Officers
dealing with the representation were not
indifferent to the urgency of the situation
of the detenu being in jail. (Para - 18,20)

Petitioner was detained for the grounds/reasons
mentioned in the impugned order - passed by
the District Magistrate - Petitioner was informed
about the grounds of detention and his right to
make representation - Petitioner submitted an
objection before the concerned respondents.
(Para - 3 )

HELD:-Both
the
said
respondents
well
explained the time taken in deciding the
representation.
The
time
taken
by
the
respondent no. 1 and the respondent no.2 in
deciding
the
representation
of
the
petitioner/detenu on facts of the present case
can not be said to suffer from undue delay or
inordinate delay.(Para - 19,23 )

Habeas corpus petition dismissed. (E-7)

List of Cases cited:-

1. Rajammal Vs St. of T.N. & anr , AIR 1999 SC
684

2. Hetchin Haokip Vs St. of Manipur, (2018) 9
SCC 562 (Paragraph Nos. 9 to 15)

3.
Keshav
Tilak
Nilkantah
Joglekar
Vs
Commissioner of Police, AIR 1957 SC 28,

4. Vidya dev Verma Vs D.M., Agartala, AIR
1969 SC 323

5. Salim Vs St. of W.B., (1975) 1 SCC 653

6. Kubic Darusz Vs U.O.I., (1990) 1 SCC 568,