MOHAMMAD HANIF Vs. JAHIRUDDIN

JUDGEMENT

(1.) THIS petition under section 491 of the Code of Criminal Procedure is made by Mohammad Hanif. It is alleged in the petition that Mst. Jummi, daughter of the third respondent Peer Bux, was married to the petitioner on June 18, 1955. At that time, Jummi was only 7 years old. Since then she has been residing with her parents. On May 20, 1962, Zaheeruddin respondent No. 1, "with the ulterior motive of depriving the petitioner of his right to reside with his wife and to have consort with her, has, without any justification, enticed away the petitioner's wife from village Pondi and has kept her in his custody without any justification or legal right". It is further alleged that respondents Nos. 2, 3 and 4 conspired with respondent No. 1 and it was with their help that the girl has been enticed away. It is further alleged that respondents Nos. 3 and 4 (respondent No. 4, Jamaluddin, is the son of Peer Bux), with ulterior motive of making a gain of about Rs. 1,200 as the remuneration for helping the respondents Nos. 1 and 2 in enticing away the petitioner's minor wife, have failed to discharge their duty of looking after her, so that now they have no claim or right to continue as her guardian. It is then alleged that the life of Jummi, who is only of 14 years, is in danger. It is prayed that Jummi be set at liberty. In our view, this petition is entirely misconceived. Admittedly Jummi has been residing all these years with her parents. The petitioner says that this has been with his consent. It is nowhere alleged in the petition that Jummi does not want to stay with Zaheeruddin. It is the husband who thinks and contends that Zaheeruddin has no right to keep Jummi with him. Proceedings for the issuance of habeas corpus are intended only for the release of a person who is illegally detained. Here, Jummi has not come before us. The petition does not state that Jummi (who is now of 14 years and, although a minor, is in a position to express her choice) does not want to stay with Zaheeruddin. She is not alleged to have, in any way, communicated to the petitioner her desire to leave Zaheeruddin. It is obvious enough that the petitioner is seeking restitution of conjugal rights but has come up here with a petition under section 491, Criminal Procedure Code. We need not go into the merits of the case. It does not appear in the petition that at any time during these seven years he has seen the face of his wife, nor is it averred that he at any time went to fetch his wife or approached her parents to send her to him. If the parents have sent the girl with Zaheeruddin -in whatever manner it may be, we are not concerned with it in these proceedings -it is open to the petitioner to take recourse to proper remedy against Zaheeruddin and others. If his wife has been enticed away or if any other offence relating to marriage has been committed or is being committed, it is for the petitioner to take appropriate proceedings. If he thinks that he is now the guardian entitled to the custody of his wife, he has another remedy open to him. No directions under section 491, Criminal Procedure Code, can be issued unless "the wife is found to be in unlawful detention. In King v. Greenhill, (1836) 111 E R 922 :, ILR 16 Bom. 307, Coleridge, J., observed:

(2.) A habeas corpus proceeds on the fact, of an illegal restraint. Ascertainment of the fact whether the person who is sought to be brought is or is not illegally detained is the very object of issuing habeas corpus. Section 491, Criminal Procedure Code, is aimed at providing a remedy for a person who is deprived of his liberty, but it cannot be resorted to in cases where there is a dispute merely as to who should be the guardian of a minor. The grant or refusal of a habeas corpus is the matter in the discretion of the Court. Where a minor is involved, the paramount consideration is always the welfare of the minor. Since, in the peculiar circumstances of this case, there is nothing to suggest that Jummi's stay with Zahiruddin is not in her interest, no action can be taken at the instance of the petitioner, who is virtually seeking restitution of conjugal rights against the parents of the girl and against Zahiruddin. Before we leave this case, we desire to add that during the course of the hearing, learned counsel for the petitioner disclosed that an application was made under section 100 of the Code of Criminal Procedure but there the petitioner did not succeed. This was a material fact and it should not have been suppressed in the petition.