# MOHD. IKRAM HUSSAIN v. STATE OF U.P. & OTHERS

- **Citation:** [1964] 5 S.C.R. 86
- **Court:** Supreme Court of India
- **Decided:** 1963-10-09
- **Case number:** Criminal Appeals Nos. 227 and 228 of 1960
- **Bench:** M. Hidayatullah, K.C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-ikram-hussain-v-state-of-u-p-others-3051
- **Pages:** 19

## Headnote

Habeas Curpus-Perition for custody of alleged wife-Power
of Court to order inquiry into facls-Contempt of Court-Punish- <:ct'.
ment for-Constitution ·of India, Art. 226-Code of C1·imina/ Procedure, 1898 (Act S of 1898), s. 491.
Proceedings under s. 491 of the Code of Criminal Procedure
and Art. 226 of the Constitution of India were started by one Mahesh
for a writ~ order or direction in the nature of a writ of habeas corpus
to release his alleged wife Kaniz Fatima alias Sheela from unlawful
detention by the appellant, her father and for delivery of the said
Kaniz Fatima to him.
On August 26, 1960, the High Court passed
an order by which the objections of the appellant were ovenuled
and he was directed to bring before the Court Kaniz Fatima
alleged to be held in unlawful confinement. The appellant was
given ten days time to obey the direction. As the direction was (
not complied with and Kaniz Fatima was not produced in Court
•
I
5 S.C.R.
SUPREME COURT REPORTS
87
the High Court passed another order on September 16, 1960
by which the appellant was committed for contempt and sentenced
to simple imprisonment for three months and to pay the costs.
The appellant came to this Court by special leave against the two
orders of the High Court.
Held:
The order of the High Court committing the appellant
for contempt was justified because the High Court rightly reached
the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through
another, was wilfully and deliberately disobeying the direction
of the Court. In so far as the offence of contempt was concerned,
there was manifest disobedience of the order and the High Court
could punish by ordering the appellant to be detained in prison.
(ii) A writ of habeas corpus issues not only for release from
detention by the State but also for release from private detention .
At common law, a writ of habeas corpus is available to the husband
for regaining the custody of his wife if she is wrongfully detained
by anyone without her consent. Hence the order of the High Court
was not without jurisdiction. However, issuing of a writ of habeas
corpus at the instance of a husband is very rare in English law.
In India, such a writ 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. There is also the remedy of
a civil suit for restitution of conjugal rights. Jn both these cases,
all the issues of fact can he 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
a clear case. That is particularly so in cases where the petitioner
is himself ch<1rged with a criminal offence in respect of the very
person for whose custody he demands the writ.
A writ of habeas
corpus at the instance of a man to obtain possession of a woman
alleged to be his wife does not issue as a matter of course. Though
a writ of right, it is not a writ of course, especially when a man
seeks the assistance of the court to regain the custody of a woman.
Before a court accedes to his request, it must satisfy itself at least
prima facie that the person claiming the writ is in fact the husband
and whether a valid marriage between him and the woman could
at all have taken place.
(iii) The writ nisi for the production of Kaniz Fatima should
have been preceded by some more inquiry. It is wrong to think
that in habeas corpus proceedings the Court is prohibited from
ordering an inquiry into a fact.
All procedure is always open
to a Court which is not expressly prohibited and no rule of the
Court has laid down that evidence shall not be received if the court
requires it.
The Queen v. Barnardo, 23 Q.B.D. 305; The Queen v. Barnartlo,
24 Q.B.D. 283 and Thomas John Barnardo v. Mary Ford, [1892)
A.C. 326, referred to.
1963
Mohd. lkram
1

## Text

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86
SUPREME COURT RF.PORTS
[1964] J
,,...-,
1963
could reconsider the matter. Indeed, learned counsel
for the first respondent conceded that fact.
The
.~red Yakooh
appellant would have every opportunity to establish
v.
. that the first respondent has no workshop at ChidamK.S. Radhakmh-baram. Instead of following the straight course,
nan
he is trying to shut out further enquiry to arrive at
the truth.
ln the circumstances l am of the view
Subba Rao .I. that this is not a case which calls for the exercise of
this Court's extraordinary jurisdiction to set aside
the order of the High Court.
1963
Ocroher 9
In the result, the appeal fails and is dismissed
with costs of the first respondent.
ORDER BY COURT
In accordance with the opinion of the majority
the appeal is allowed and the Writ Petition filed by
Respondent No. l is dismissed.
Respondent No. ·1
to pay the costs of the appellant in this Court.
Respondents 2 and 3 to hear their own costs.
MOHD. IKRAM HUSSAIN
v.
STATE OF U.P. & OTHERS
(M. HIDAYATULLAH
AND
K.C. DAS GUPTA JJ.)
Habeas Curpus-Perition for custody of alleged wife-Power
of Court to order inquiry into facls-Contempt of Court-Punish- <:ct'.
ment for-Constitution ·of India, Art. 226-Code of C1·imina/ Procedure, 1898 (Act S of 1898), s. 491.
Proceedings under s. 491 of the Code of Criminal Procedure
and Art. 226 of the Constitution of India were started by one Mahesh
for a writ~ order or direction in the nature of a writ of habeas corpus
to release his alleged wife Kaniz Fatima alias Sheela from unlawful
detention by the appellant, her father and for delivery of the said
Kaniz Fatima to him.
On August 26, 1960, the High Court passed
an order by which the objections of the appellant were ovenuled
and he was directed to bring before the Court Kaniz Fatima
alleged to be held in unlawful confinement. The appellant was
given ten days time to obey the direction. As the direction was (
not complied with and Kaniz Fatima was not produced in Court
•
I
5 S.C.R.
SUPREME COURT REPORTS
87
the High Court passed another order on September 16, 1960
by which the appellant was committed for contempt and sentenced
to simple imprisonment for three months and to pay the costs.
The appellant came to this Court by special leave against the two
orders of the High Court.
Held:
The order of the High Court committing the appellant
for contempt was justified because the High Court rightly reached
the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through
another, was wilfully and deliberately disobeying the direction
of the Court. In so far as the offence of contempt was concerned,
there was manifest disobedience of the order and the High Court
could punish by ordering the appellant to be detained in prison.
(ii) A writ of habeas corpus issues not only for release from
detention by the State but also for release from private detention .
At common law, a writ of habeas corpus is available to the husband
for regaining the custody of his wife if she is wrongfully detained
by anyone without her consent. Hence the order of the High Court
was not without jurisdiction. However, issuing of a writ of habeas
corpus at the instance of a husband is very rare in English law.
In India, such a writ 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. There is also the remedy of
a civil suit for restitution of conjugal rights. Jn both these cases,
all the issues of fact can he 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
a clear case. That is particularly so in cases where the petitioner
is himself ch<1rged with a criminal offence in respect of the very
person for whose custody he demands the writ.
A writ of habeas
corpus at the instance of a man to obtain possession of a woman
alleged to be his wife does not issue as a matter of course. Though
a writ of right, it is not a writ of course, especially when a man
seeks the assistance of the court to regain the custody of a woman.
Before a court accedes to his request, it must satisfy itself at least
prima facie that the person claiming the writ is in fact the husband
and whether a valid marriage between him and the woman could
at all have taken place.
(iii) The writ nisi for the production of Kaniz Fatima should
have been preceded by some more inquiry. It is wrong to think
that in habeas corpus proceedings the Court is prohibited from
ordering an inquiry into a fact.
All procedure is always open
to a Court which is not expressly prohibited and no rule of the
Court has laid down that evidence shall not be received if the court
requires it.
The Queen v. Barnardo, 23 Q.B.D. 305; The Queen v. Barnartlo,
24 Q.B.D. 283 and Thomas John Barnardo v. Mary Ford, [1892)
A.C. 326, referred to.
1963
Mohd. lkram
1-/ussain
v.
State qf U.P.
1963
Mahd. lkram
Hussain
v.
State of U.P.
88
SUPREME COURT REPORTS
[1964]
CRIMINAL
APPELLATE
JURISDICTION: Criminal
Appeals Nos. 227 and 228 of 1960.
Appeals by special leave from the judgments and
orders dated September 16, and August 26, 1960
of the Allahabad High Court in Criminal Misc.
Case No. 1519 of 1960.
N.C. Chatterjee, D.P. Singh and M.l. Khowaja,
for the appellants.
C:P. Lal, for the respondent No. 1.
October 9, 1963. The Judgment of the Court was
delivered by
Hidayatullah J.
HmAYATULLAH J.-This judgment will govern
the disposal of Criminal Appeals Nos. 227 and 228
of 1960.
In both these appeals the appellant is one
Mohammad Ikram Hussain an Advocate of the
Allahabad High Court residing in 49, Zero Road,
Allahabad. The second respondent in these appeals
is one Mahesh Prashad, a resident of 4, Gujrati Mohalla
Allahabad City but who has not appeared in this
Court. The other two respondents are the State
of U.P. on whose behalf a belated appearance was
made by Mr. C.P. Lal, Advocate and the Station
House Officer, Kotwalli, Allahabad who was not
represented at the hearing. The two appeals are
in a sense connected and impugn two orders of the
High Court of Allahabad made respectively on August
26, 1960 and September 16, 1960. They were passed
in a proceeding initiated by Mahesh under s. 491,
Criminal Procedure Code and Art. 226 of the Constitution for a writ, order or direction in the nature
of a writ of haheas corpus to release his alleged wife
Kaniz Fatima alias Sheela from unlawful detention by
the appellant and for delivery of the said Kaniz Fatima
to him. The first order was made by the High Court
overruling the objections of the appellant, directing
him to bring before the Court the said Kaniz Fatima
alJeged to be held in unlawful confinement.
By
that order the High Court gave the appellant 10 days'
time to obey the direction.
As the direction was
not complied with and Kaniz Fatima was not brought
..
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5 S.C.R.
SUPREME COURT REPORTS
8<)
into the Court, the High Court passed the second
order committing the appellant for contempt and
sentencing him to simple imprisonment for 3 months
and to pay the costs.
The High Court was moved
for a certificate but declined it by its Order dated
October 14, 1960. The present appeals have been
filed by special leave granted by this Court.
On July 28, 1960, Mahesh Prashad filed a petition
in the High Court of .\llahabad against the Station
House Officer, Kotwali Allahabad and Jkram Hussain,
the appellant. This petition purported to be under
s. 491, Criminal Proc~dure Code and Art. 226 of the
Constitution. Mahesh Prashad stated therein that
sometime in October 1959 he made the acquaintance of
Kaniz Fatima, the daughter of the appellant and a
marriage between them took place on December
25, 1959 according to Vedic rites after Kaniz Fatima
had embraced Hinduism.
Mahesh stated that they
used to meet clandestinely and Kaniz Fatima became
pregnant.
She left home in early June 1960 and went
to Jive with him at his house No. 4, Gujrati Mahalia,
Allahabad but on June 23, 1960, the Station House
Officer, Kotwali Allahabad searched the house and
arrested Mahesh and took away Kaniz Fatima in spite
of protests on her part as also on his.
Mahesh further
stated that he was 23 years of age and that Kaniz
Fatima's age, according to the record of the Allahabad
municipality was 21 years and according to the medical
examination at Dufferin hospital immediately after
she was taken away from his house, 19 years.
He
further stated that a prosecution was started against
him under ss. 363, 366, 368 and 376, Indian Penal
Code and that, after he was released on bail on July
15, 1960, he searched for his wife but could not find
her and learnt that the appellant was keeping her
confined against her wishes at Jaunpur. He asked
for a writ for the production of Kaniz Fatima in Court
and for her release and swore an affidavit in support
of his petition. In. answer to the notice which was
issued by the High Court on July 29, 1960, the Station
House Officer, and the appellant appeared before
1963
Mohd. lkram
/fuss a in
v.
State of V.P.
Hidayatual/ah J.
1963
t\1ohd. lkra111
Jfussain
v.
Stme of U.P.
Hidayatullah .!.
90
SUPREME COURT REPORTS
[1964]
the High Court and put in their affidavits. Before
we deal with those affidavits in detail we shall set
down the version of the appellant in regard to the
disappearance of Kaniz Fatima.
Kaniz Fatima according to the appellant was a
student at the Hamidia Girls College, Allahabad,
where she had enrolled herself in July 1958.
She
appeared for the High School Examination of 1959
but was unsuccessful. The result was announced
about the 17th June 1960 and on June 20, 1960 Kaniz
Fatima disappeared. The appellant then filed a report
in the police station house to the following effect:
"To
Sir,
The Dy. Superintendent Police,
Allahabad.
My daughter Kaniz Fatima alias Sheela, aged
about 15 years, medium fair complexion, thin
body appeared in the High School Examination
of 1960 from Hamidi a Girls Inter College .. Unfortunately she failed in the examination.
She
became very despondent.
Yesterday, the 20th of June 1960 at about
5 o'clock in the morning she disappeared from
the house and has not returned home till this
time. 1 was not in Allahabad yesterday.
I hope, she will be traced and restored to
me, I shall be obliged.
Yours faithfully,
Sd/- Mohd. Ikram Hussain,
49, Zero Road, Allahabad."
The police caused a searched to be made at the
house of Mahesh on the evening of June 23, 1960 and
found Kaniz Fatima in that house.
Kaniz 'Fatima
then made a statement to the police which is Annexure
'B' to the special leave petition. No. 882 of 1960 in
Criminal Appeal No. 227 of 1960.
In that statement
Kaniz Fatima stated that she had appeared for the High
t:.,
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5 S.C.R.
SUPREME COURT REPORTS
91
School Examination from Hamidia College, Allahabad
and the result was out on June 17, 1960.
As she had
failed in the examination she was very depressed and
as her parents used to make sarcastic remarks she
decided to leave the house and go to her aunt Sardar
Begum in Rani Mandi. Accordingly she left in the
early hours of the morning but lost her way as she
was a Parda girl and had no money even to hire a
rickshaw.
On the way she met two men Mahesh
and Sudama-who offered to show her the way to
Rani Mandi but instead took her to the house in Gujrati
Moha\la from where she was recovered.
She alleged
that they criminally assaulted her and kept her confined
against her will.
She gave her age as about 15 years
or 16 years but stated that she did not know the age
entered in the college register.
On the next day
another statement of Kaniz Fatima was recorded bv
the police and it is Annexure 'E' to the petition abovementioned. By this statement she expressed a desire to
live with her father, the appellant, and the police handed her over to the appellant taking from him a 'Sapurdaginama' (Annexure H) containing an undertaking
that he would produce the said Kaniz Fatima whenever
required by the police or the Court in connection
with the case against Mahesh Prashad and others.
It is thus that the appellant got back his daughter
Kaniz Fatima while Mahesh Prashad was arrested
and charged with abduction and rape but was released
on bail on or about July 15, 1960.
On July 28, 1960,
he filed this petition for a writ of habeas corpus .
We need not concern ourselves with the affidavit
of the Station Officer, Kotwali, Allahabad. His
position was quite clear.
He had handed over the
girl to her father after taking a statement from her.
The appellant made a return on affidavit supporting
it by an affidavit of one Ram Nath. The appellant's
return stated the facts already narrated by us in regard
to the disappearance of Kaniz Fatima and her recovery
from No. 4, Gujrati Mohalla, Allahabad. He stated
further that Kaniz Fatima was not with him, having
disappeared for a second time in the circumstances
1963
Mnltd. Jkram
Jf11ssai11
v.
State of U.l'.
Hidayatu/lah J.
1963
Mohd. lkram
Hussain
v.
State of U.P.
Hidayatu//ah J.
92
SUPREME COURT REPORTS
(1964]
now to be narrated. The appellant stated that
Kaniz Fatima was very dejected over what had happened to her and was sent to his brother-in-law, Syed
Jqtedar Hussain, 51, Sabzi Mandi, Allahabad and
his wife Mst. Shabbiri Begum, the sister of Kaniz
Fatima's mother. This was on July 8, 1960.
The
appellant and his wife used to go to see Kaniz Fatima
at that house which was Jess than half a mile from their
house.
On July 20, 1960, fqtedar Hussain and Shabbiri Begum informed him that Kaniz Fatima had disappeared.
He felt very dejected and his son Imdad
Hussain and Jqtedar Hussain searched for the girl
at the houses of all their relatives in Allahabad and
also at Faizabad. The appellant stated that he did
not report to the police because ot the scandal and
humiliation.
He expressed his inability to bring the
girl.
He stated that the allegations a bout the conversion of Kaniz Fatima, her marriage and pregnancy
were entirely false.
He contended that no marriage
could take place because Mahesh was already married
with a wife Jiving.
The affidavit of Ram Nath was
earlier filed in support of the last allegation. The
appellant now filed an affidavit by Iqtedar Hussain
in support of his affidavit about the second disappearance of Kaniz Fatima.
Mahesh Prashad thereupon filed an affidavit
in rejoinder by which he reiterated that he was married
to Mst. Ram Rati but alleged that he had divorced
her according to the custom of the caste and that
Ram Rati had remarried and was living with her
husband. He alleged that his marriage with Kaniz
Fatima had taken place in the presence of respectable
persons of the locality and that the story of the
disappearance of Kaniz Fatima was false and she was
illegally and improperly being detained against her
wish by the appellant.
On this
IT aterial the High Court passed the
first order on August 26, 1960.
From that order it
appears that the High Court did not enter into any
question of fact except the age of Kaniz Fatima. The
High Court held that if Kaniz Fatima was a minor no
•.
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I
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5 S.C.R.
SUPREME COURT REPORTS
93
habeas corpus application would lie because the father
1963
would be the guardian but if Kaniz Fatima was major
then the application was competent and Kaniz Fatima
Mohd. lkram
was the best person to judge for herself where she
Hussain
would live.
The learned Judges were of the opinion
v.
that the issue whether Mahesh and Kaniz Fatima
State of U.P.
were married was not at all relevant. The age of
. --
Kaniz Fatima was taken by the learned Judges to be Hulayatu!lah J.
19 years in view of the result of the medical examination and holding that she was major the learned Judges
addressed themselves to what they described as the
main question: Whether the appellant had Kaniz
Fatima in his control? In this connection the learned
Judges referred to the undertaking given by the appellant to the police to produce Kaniz Fatima whenever
required and observed that it was his duty to keep a
watch
on
her
movements.
Finding that there
was no date mentioned in the affidavit regarding her
second disappearance they ordered a fresh affidavit
to be filed.
That affidavit was filed on the 11th August
1960 and was supported by the affidavit of Iqtedar
Hussain of the same date.
We have referred to the
contents of these documents. The learned Judges
pointed out that the appellant's conduct was somewhat strange because he had neither reported the
second disappearance of Kaniz Fatima to the police
nor informed the Magistrate in whose Court the
criminal case was pending about it.
They were of
opinion that it was also very unlikely that Kaniz
Fatima who had brought such troubles on her head
by running away from home would leave the house
for the second time without the connivance or aid
of someone, and they concluded that that person could
be none other than her father.
They took into consideration that the appellant had denied the fact of
marriage and conversion to Hinduism on the basis
of personal knowledie when this could only be on
information received from Kaniz Fatima and had
further sworn an affidavit about the state of mind of
Kaniz Fatima immediately before her second disappearance which he could not have known unless
he was present personally. Holding, therefore, that
1963
Mohd. lkra111
Hussain
v.
State o/ U.P.
lfidayll/111/11'1 J.
94
SUPREME COURT REPORTS
. [1964]
Kaniz Fatima was not minor and the petition could
be proceeded with, they made an order for the production of Kaniz Fatima in Court.
The appellant did not produce the girl in obedience to the direction of the High Court and the second
order was passed committing him for contempt and
sentencing him as stated already.
In these appeals
both these orders are challenged.
Against the first
order it is contended that the High Court was in error
in ordering the production of Kaniz Fatima, acting
on the affidavits of Mahesh which were patently
false.
Against the second order, it is contended that
it was impossible for the appellant to carry out the
Court's order because Kaniz Fatima was not with him
and her whereabouts were not known to him and that
the committal for contempt and the punishment imposed were unjustified.
Lastly, it was urged that the
sentence was too heavy.
From what we have stated above it will appear
that the action of the Court is questioned on two connected but in essence entirely separate matters. The
disobedience of the order of the Court entailing punishment for contempt is a very different matter from the
action taken in the habPas corpus petition. The
order of commitment for contempt presents no difficulty.
Even if the direction was inexpedient, an order
had been made for bringing Kaniz Fatima before the
Court and it had to be complied with unless the appellant could plead and prove his inability to comply
with it. The question whether the Court ought,
on the materials present before it, to have called upon
the appellant to bring Kaniz Fatima in Court is something which does not enter into the obedience of the
order made.
A direction given by the High Court
in a proceeding for a writ of habeas corpus for the
production of the body of a person has lo be carried
out and if disobeyed the contemncr is punishable
by attachment and imprisonment.
A valid excuse
will, however, be that it is impossible to obey the
order.
... .
I
...
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5S.C.R.
SUPREME COURT REPORTS
95
We have heard Mr. N.C. Chatterjee in support
1963
of the contention that the appellant did not know
the whereabouts of Kaniz Fatima and was unable Mohd. Ikram
to comply with the orders of the High Court.
We
Hussain
are not satisfied that the appellant could not have
v.
brought Kaniz Fatima before the Court. His conduct
State of U.P.
belies his assertion that he did not know where Kaniz
Fatima was.
When Kaniz Fatima disappeared for I-Iidaya111/la!z J.
the first time the appellant lost no time in making a
report to the police and the efficiency of the police
was demonstrated by the discovery of Kaniz Fatima
within two days. If Kaniz Fatima disappeared a
second time the appellant, unless he knew where she
had gone, should logically have enlisted the support
of the police immediately. There would, of course,
be no point in reporting to the police if the wherca bouts were to be kept secret because the police might
have found Kaniz Fatima thus proving the report to
be false. If Kaniz Fatima disappeared in mysterious
circumstances it should have occurred to the appellant
that perhaps Mahesh and Sudama whom she had
charged with abduction and rape might have had
a hand in her second disappearance and then what
better move was open to the appellant than to go to
the police? It is not his case that he got disgusted
and Jet Kaniz Fatima go her own way.
He started a
search for her on his own and his son and brother
visited the houses of relatives in Allahabad and his
son went to Faizabad to make enquiries there.
ft
is clear that, on his own showing, he was anxious to
find Kaniz Fatima and spared no efforts to find her
but he did not enlist the support of the police. This
as stated already was very surprising because on the
first occasion the police had found Kaniz Fatima
almost al once and restored her to him. The conclusion is inescapable that he a voided the police
this time.
Again the High Court is right in thinking
that Kaniz Fatima who had a harrowing experience
would not venture out a second time.
Kaniz Fatima
had stated that she nad got lost when she left the
house on the first occasion and that she did not know
her way in the town as she had always travelled in
96
SUPREME COURT REPORTS
[1964]
1963
a closed rickshaw.
1t would be very unlikely that
she would venture out a second time. lt is not suggestMolid. I/mun ed that she left the house to do away witl1 herself
Hussain
or to go away on her own. These possibilities have
v.
not been canvassed before us.
Of the two alternatives
State of U.P. which might have suggested themselves namely that
. --
she had left the house to go to some relative or was
Hidayatu/lah 1. taken away by Mahesh and Sudama, neither came in
the
way of making a report to the police.
But
if the appellant knew where Kaniz Fatima had gone
and was not anxious that her whereabouts should
be discovered the report to the police would not be
made.
The excuse that the appellant was saving
himself from scandal and humiliation cannot appeal
to anyone because there was enough of scandal and
humiliation already and little could be added to it.
The High Court's conclusion that the appellant was
harbouring Kaniz Fatima and keeping her hidden
was impeccable.
Jn these circumstances, we are of opinion that
when the Court did make an order for the production
of Kani;: Fatima even if another court would have
taken some other steps it had to be carried out unless
it was impossible for the appellant to comply with
it. In our opinion the High Court's commitment
for contempt was justified because the High Court
rightly reached the conclusion that the appellant
having the knowledge of the whereabouts of Kaniz
Fatima and having the custody of her through another,
was wilfully and deliberately disobeying the direction
of the Court.
Jn so far as the offence of contempt
is concerned there was a manifest disobedience of the
order and the High Court could punish it hre1·i manu
by ordering the appellant to be detained in prison.
The High Court's powers for punishment of contempt
have been preserved by the Constitution and they are
also inherent in a Court of Record.
The learned
Judges were perhaps in error in describing it as contempt in fade curiae.
That is contempt of a different
sort. This was contempt by disobedience of an order
of the High Court which is sometimes a civil contempt
f
• •
'
cJ
- ,;.:. .
•
~)
5 s.c.R.
SUPREME COURT REPORTS
91
punishable under the Code of Civil Procedure and
1963
sometimes a criminal contempt punish,able by imprisonment. The only curbs on the powers of the
Mohd. Ikram
High Court to punish for contempt of itself are conHussain
tained in the Contempt of Courts Act which limits
v.
the term for which a person can be imprisoned to
State of U.P
six months simple imprisonment. The High Court
was justified in punishing this contempt. In view Hidayatu/lah l.
of the grossness of the contempt it cannot be said
that the punishment of three months simple imprisonment was excessive.
We therefore decline to interfere
with the order of September 16, 1960. Criminal
Appeal No. 227 of 1960 against that order is dismissed.
The first order by which Kaniz Fatima was ordered
to be brought into Court was questioned on the ground
of want of jurisdiction and for irregularity in the
exercise of that jurisdiction. The High Court acted
with jurisdiction. The writ of habeas· corpus issues
not only for release from detention by the State but
also for release from private detention. At Common
Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was
wrongfully detained by anyone from him without
her consent. What amounts to wrongful detention
of the wife is, of course, a question for the Court
to decide in each case and different circumstances
may exist either entitling or disentitling a husband
to this remedy. There was also no material irregularity
vitiating the order for inexpediency is not the same
thing as irregularity and all that has been pointed out
is that the High Court acted without sufficient enquiry
and deliberation. We shall say something about this
because this criticism is perhaps justified.
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 a civil suit for
restitution of conjugal rights. Husbands take reI SCl/64-7
98
SUPREME COURT REPORTS
[1964]
1963
course to the latter when the detention does not amount
to an offence and to the former if it does. In both
Mohd. Ikram these remedies all the issues of fact can be tried and
Hussain
the writ of habeas corpus is probably not demanded
v.
in similar cases if issues of fact have first to be establishState of U.P. ed. This is because the writ of habeas corpus is festi-
. --
num remedium and the power can only be exercised
Hzdayatullah J. 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.
Jn the present case the police had before them
a report by the appellant that Kaniz Fatima had not
returned home and on search the police found her
in a house where she normally would not be found
unless she went there herself or was carried there
against her will. The police arrested Mahesh .in the
·house and examined Kaniz Fatima and her statement
was as follows:
" ............................. .I had sat for the High
School Examination from the Hamidia College,
Allahabad this year i.e. 1960. The result was
out on the 17th of June 1960.
I failed in the
examination, I felt much depressed, as it was
at my instance that my parents had sent me to
study in the school. On my having failed, my
parents often passed sarcastic remarks at me.
I felt much grieved and made up my mind to
leave the house and move away for some time
to the house of my aunt (mother's sister) named
Sardar Begum, who was married to Shri Ziarat
Hussain and was living at Rani Mandi. Therefore, I left my house for Rani Mandi in the very
early hours as I had been to Rani Mandi on
the screened rickshaw from my house several
times, therefore, I thought that I would find out
my way. As I had left the house without the
knowledge of my parents, hence I had no money
with me even to hire a rickshaw to go to Rani
Mandi. I was proceeding for Rani Mandi when
I lost the way and when I could not find the way cJ
•
5 S.C.R.
SUPREME COURT REPORTS
99
..L""-
•
to Rani Mandi even after covering a long distance,
1963
these two men Mahesh and Sudama met me in
the way. I inquired from them about the way.
Mohd. Ikrum
Thereupon Mahesh told me that they would lead
Hussain
me to Rani Mandi. Having pretended to take me
v. .
to Rani Mandi Mahesh fraudulently took me: to
State of U.P.
that house in Gujrati Mohalla from where I have
. -
been recovered.
In addition to Mahesll, his Hidayatullah J.
companion Sudama was also there.
Being
pushed in, I was thrust in the house from where
I have been recovered. Since then, I have been
kept in concealment in that house against my will
up to this day. They have committed the bad act
with me by force. My age is about 15 or 16 years.
I don't know my age in the college register."
Later Kaniz Fatima stated in writing that she
wanted to return to the appellant. Kaniz Fatima had
described her age as 15 or 16 years and in view of
her allegation that she was compelled to sexual intercourse and brought to the house by a trick, offences
under ss. 363, 366 or 368, Indian Penal Code, depending
on her age, and s. 376, Indian Penal Code were alleged
against Mahesh. If Kaniz Fatima was below 18 years
of age there would be an offence under s. 368, Indian
Penal Code at the very least unless she was married
to Mahesh because Mahesh admitted that he had
sexual intercourse with her. In these circumstances,
with a prosecution pending against Mahesh the learned
Judges might well have satisfied themselves first about
the factum of marriage and the age of the girl with
more circumspection. A writ of habeas corpus at
the instance of a man to obtain possession of a woman
alleged to be his wife does not issue as a matter
of course. Though a writ of right, it is not a writ
of course especially when a man seeks the assistance
of the Court to regain the custody of a woman. Before
a Court accedes to this request it must satisfy itself
at least prima facie that the person claiming the writ
is in fact the husband and further whether valid
marriage between him and the woman could at
all have taken place.
100
SUPREME COURT REPORTS
[1964]
1963
In the present case Kaniz Fatima was stated to
be under the age of 18. There were two certified
Mohd. Ikram copies from school registers which showed that on
Hussain
June 20, 1960 she was under 17 years of age. There
v.
were also the affidavit of the father stating the date
State of U.P. of her birth and the statement of Kaniz Fatima to
-
the police with regard to her own age. These amountHidayatullah J. ed to evidence under the Indian Evidence Act and the
entries in the school registers were made ante /item
motam. As against this the learned Judges apparently
held that Kaniz Fatima was over 18 years of age. They
relied upon what was said to have been mentioned
in a report of the Doctor who examined Kaniz Fatima,
though that report was not before them. Reference
to it was made in the affidavits of Mahesh and the
Sub-Inspector which were both hearsay and not
admissible under the Evidence Act in proof of the
contents of a document. The primary documentary
evidence ought to have been summoned. The High
Court thus reached the conclusion about the majority
without any evidence before it in support of it and
in the face of direct evidence against it.
With regard to the marriage, the learned Judges
referred to the denial by the appellant on personal
knowledge that conversion to Hinduism or marriage
had taken place but they did not look into the affidavits
of Mahesh himself on the subject. These affidavits
create some doubt. Mahesh stated that he first met
Kaniz Fatima on the 25th October, 1959 and that they
fell in love with each other and decided to marry
but "there were hurdles in their way" and marriage
with the "consent of their respective parents became
impossible". Ram Nath's affidavit (part of which
even Mahesh accepted) showed that Mahesh's father
was dead and his mother had remarried. There
would have been very little difficulty with regard
to his parents, if there were any. The question of
the consent of the parents of Kaniz Fatima never
arose. The marriage surprisingly enough was said
to have taken place two months after the first meeting
and the date mentioned was Dec. 25, 1959. The
,.
'
_,
I
1
'
5 S.C.R.
SUPREME COURT REPORTS
101
affidavit of the appellant was that 25th December, 1959
1963
was a holiday and Kaniz Fatima was with him and
that no conversion or marriage had taken place
Mohd. Ikram
that day. The appellant's affidavit on personal knowHussain
ledge that no marriage had taken place was therefore
v.
a proper affidavit. It could not be stated that
State 01 U.P.
he could not swear to such a fact on personal know-
.
ledge. The affidavits of Mahesh filed from time to Hidayatullah J.
time showed contradictions which apparently went
unnoticed. In his first affidavit filed with the petition
he stated that Kaniz Fatima and he had decided to
get married "secretly" and that the marriage was done
without the knowledge of the parents of either party
to the marriage and that he and Kaniz Fatima met
after marriage "only clandestinely". In another affidavit he stated that the marriage took place "at the
residence of the applicant amidst the respectable
persons of the Mohalla and the community" which
could hardly be called a 'secret' marriage.
Tn the
same affidavit he also stated that since marriage
Kaniz Fatima and he "were living together and cohabited in the aforesaid premises" and that it was only
"after the lapse of four months" that Kaniz Fatima
was taken away from his house. His exact words
have been reproduced from his affidavits. This contradiction was pointed out in the affidavits of the
appellant but the learned Judges declined to go into
it because they were of opinion that the question
of marriage and other questions arising therefrom
were irrelevant. The learned Judges did not see
that even the eligibility of Mahesh to marry Kaniz
Fatima was called in question because it was alleged
on affidavit that he had a wife already living. Under
ss. 5 and 11 of the Hindu Marriage Act (XXV of 1955)
a second marriage, with a previous married wife
living, is null and void. Mahesh admitted that he
was previously married but he stated that he had
divorced his wife according to the custom of the
caste and that his former wife married another person
and was living with him. The learned Judges referred
to these facts and merely stated that as he was a Kori
or Kachhi, divorce was possible but did not try to
1963
Mohd. Jkram
Hussain
v.
State of U.P.
Hidayatu/lah J.
102
SUPREME COURT REPORTS
[1964]
ascertain whether divorce as alleged had taken
place or not.
These were some· of the circumstances which
remained undetermined when the Court ordered the
production of the girl in Court. There is no doubt
that the proceeding is a discretionary one. Whether
the Court feels satisfied with one affidavit or with
another is a matter mainly of its opinion and conviction.
The learned Judges must have felt impressed by the
affidavit of Mahesh, because there was nothing else
before them in support of his version. They did not
ask him to produce affidavits from the respectable
persons of the "Mohalla and community" before whom
the marriage and conversion was said to have taken
place or even to produce the photograph which he
asserted was taken of Kaniz Fatima and himself
by a photographer. lnspite of this if they ordered
the production of Kaniz Fatima they acted with jurisdiction. Even if some other person may consider
the order inexpedient, the order had to be carried
out unless it was impossible for the appellant to comply
with it, For his refusal to comply with it he has been
punished and we need express no sympathy with him
but we cannot help expressing a sense of doubt. about
the truth of some of the statements of Mahesh in
his affidavits.
In our opinion the writ nisi in this case for the
production of Kaniz Fatima should have been preceded
by some more enquiry. It is wrong to think that
in habeas corpus proceedings the court is prohibited
from ordering an inquiry into a fact. All procedure
is always open to a Court which is not expressly
prohibited and no rule of the Court has laid down
that evidence shall not be received, if the Court
requires it. No such absolute rule was brought to
our notice. It may be that further evidence would
have borne out what Mahesh stated and then the
order could always be passed for the production
of Kaniz Fatima; but if the evidence did not bear
out what Mahesh alleged then the order which the
appellant disobeyed and for which he has to suffer
--
+
)I
5 S.C.R.
SUPREME COURT REPORTS
103
1963
imprisonment would never have been passed. The
learned Judges failed to notice that Mahesh's affidavit
was that she was pregnant for 6 months and not as
Mohd. lkram
they state that she ran away early in June 1960 because
Hussain
she became pregnant. It would be difficult to hide
v.
such an advanced pregnancy till June 20, 1960 when
State ofU.P.
she left the house.
Hidayatu//ah J.
It remains to mention that Mahesh made several
other wild assertions which he swore on personal
knowledge of whom a few are quoted here as illustrations:
" ...•. , ............ They in fact want to marry
the deponent's wife to some person belonging to
their own community and religious order, knowing
it full well that the deponent has legally wedded
Smt. Kaniz Fatima and both of them were living
together as husband and wife."
"That the parents of the deponents wife wish to
procure abortion of the conception which she is
presently carrying and thereby cause criminal
mischief to the deponent's married life and happiness and marry her again to some other person of
their caste and community and religious order.",~
"That the deponent further apprehends that the
police of police station Kotwali in league with the
parents of the deponent's wife are detaining her
against her wishes, illegally and forcefully with
a view to use her for immoral and criminal
inter-course and purpose."
These statements some of which could not be true
to his personal knowledge went without comment.
The aftermath may now be mentioned. Mahesh
did not appear in this Court. The notice issued by
the Supreme Court to Mahesh was returned with the
endorsement that he had left the house without leaving an address behind. As a result of these proceedings, we were informed the police dropped the criminal
case. The petition for habeas corpus was not renewed
or pressed again in the High Court.
Mahesh apparently ceased to take any interest in this case, his wife
1963
Mohd. Ikram
Hussain
v.
State of U.P.
104
SUPREME COURT REPORTS
[1964]
and his child for whose safety he was so solicitious.
Mahesh saved himself from penal consequences if
his act in any way had amounted to a crime, and the
appellant in trying to save his daughter from him
overreached himself and suffered penalty under the
law.
Hidayatullah J.
The High Court relied upon certain cases and
Mr. N.C. Chatterjee attempted to distinguish them.
The cases referred to by Mr. Chatterjee were The
Queen v. Barnardol 1 ), The Queen v. Barnardo( 2 ), and
Thomas John Barnardo v. Mary Fordl"). We do not
consider it necessary to refer to them because the
principles on which a person is released from private
detention and custody are well settled and also well
known. The High Court can always order the production of the body of a person illegally detained and
can punish disobedience of its order by attachment
and commitment.