SHAMIMA RIZVI Vs. SYED BADSHAH HUSSAIN RIZVI

JUDGEMENT

(1.) This petition has been filed by Sri Abbas Haidar Annoo for the custody of Smt. Shamima Rizvi, his legally wedded wife, with an allegation that she was in illegal and unlawful detention of her parents and other family members, the respondent Nos. 1 and 3. From the record of this case it appears that petitioner No.2 got married with the alleged detenu in July, 1989 as per the Mohammedan Law and Social Customs. The petitioner and the alleged detenu had two children out of this wedlock, a daughter of five years and a son of three years. The petitioner had taken the ground that the alleged detenu had been detained illegally by opposite parties Nos. 1 and 3 and the said respondents were not permitting her to come and stay alongwith the petitioner and perform her conjugal duties being a legally weded wife.

(2.) This Court, vide its order dated 30.8.1995 directed the Senior Superintendent of Police, Allahabad to ensure the presence of the alleged detenu Smt. Shamima Rizvi before his Court on 25th September, 1995. In compliance of the said order the alleged detenu was produced before this Court and her statement was recorded on oath in the open Court. In her statement, she stated that during her stay alongwith her husband, the petitioner, she was beaten and given ill-treatment not only by the petitioner, her husband, but also by her two sister-in-laws, namely, Haidan and Sardari and also by her brother-in-law. She further stated that she was forced by the petitioner to leave his house alongwith her two children and, he always insisted to bring a sum of Rs. 15,000/- from her father. It is further reveled by her in her statement that her further had already paid twice a sum of Rs. 5,000/- just to satisfy the greed of the petitioner. The alleged detenu refused to go alongwith the petitioner. So far as the Habeas Corpus Petition is concerned, nothing survives in the said petition as the alleged detenu is major and living with her parents on her own free Will. There is no restraint or any kind of surveillance on her by any person in the family of her parents.

(3.) In view of the above, nothing survives in this Habeas Corpus Petition. However, it is desirable to mention here that in the case for Mohammad Ikran Hussain v. State of U.P., the Supreme Court has laid down the law regarding the maintainability of the Habes Corpus Petition particularly when the husband seeks the custody of wife. In the said case it was held that if some element of offence is involved, the party may resort to the provision of the Code of Criminal Procedure by moving the Court of the Magistrate, but if no element of offence is involved, the remedy available to the husband is to file a case for restitution of conjugal rights. A writ petition under Article 226 of the Constitution of India cannot be entertained merely because it is convenient to a party or other remedies provided under the Statutes are more burdensome. The instant petition is furious and has been filed by the petitioner to compel the alleged detenu to surrender to his whimsical attitude. There is no substance in the averment made in the petition that the alleged detenu had been kept under surveillance by the family members of her parents or she had been in illegal and unlawful detention of the members of the said family. It is settled law that the writ prologative cannot be misused by a party as legal-thumb-scrue against the other party for serving some collateral purpose. Abdul Razzaq Shahid v. Mst. Azizunnisa Begam.