PETITIONER:
MOHD. IKRAM HUSSAIN
Vs.
RESPONDENT:
STATE OF U.P. & OTHERS
DATE OF JUDGMENT:
09/10/1963
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GUPTA, K.C. DAS
CITATION:
1964 AIR 1625 1964 SCR (5) 86
CITATOR INFO :
RF 1981 SC 723 (14)
RF 1981 SC1026 (4)
R 1982 SC1057 (11,18)
R 1988 SC1796 (16)
ACT:
Habeas Corpus--Petition for custody of alleged
wife--Power of Court to order inquiry into facts--Contempt
of Court--Punishment for--Constitution of India, Art.
226--Code of Criminal Procedure, 1898 (Act 5 of 1898), s.
491.
HEADNOTE:
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
overruled 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
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 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 wailfully 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. In both these cases, 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 a
clear case. That is particularly so 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. 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 primafacie 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.
Barnardo, 24 Q.B.D. 283 and Thomas, John Barnardo v, Mary
Ford, [1892] A.C. 326, referred to.
88
JUDGMENT:
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.I. 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.–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 habeas 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 alleged 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
89
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 Allahabad against the Station House Officer,
Kotwali Allahabad and Ikram Hussain, the appellant. This
petition purported to be under s. 491, Criminal Procedure
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 live with him at his
house No. 4, Gujrati Mohalla, 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 mat
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
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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
The Dy. Superintendent Police,
Allahabad.
Sir,
My daughter Kaniz Fatima alias Sheela, aged about 15
years, medium fair complexion, thin body appeared in the
High School Examination of 1960 from Hamidia 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 tilt this time. I 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
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 Mohalla 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 by the police
and it is Annexure ‘E’ to the petition above mentioned. 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
92
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 lqtedar 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 less than half a mile from their house.
On July 20, 1960, Iqtedar Hussain and Shabbiri Begum
informed him that Kaniz Fatima had disappeared. He felt
very dejected and his son Imdad Hussain and Iqtedar 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 of the scandal
and humiliation. He expressed his inability to bring the
girl. He stated that the allegations about the con. version
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 living. 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 material 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
93
habeas corpus application would lie because the father would
be the guardian but if Kaniz Fatima was major then the
application was competent and Kaniz Fatima was the best
person to judge for herself where she would live. The
learned Judges were of the opinion that the issue whether
Mahesh and Kaniz Fatima were married was not at all
relevant. The age of Kaniz Fatima was taken by the learned
Judges to be 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 11 th 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 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
knowledge 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
94
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 habeas
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 to be carried out and if disobeyed the contemner
is punishable by attachment and imprisonment. A valid
excuse will, however, be that it is impossible to obey the
order.
95
We have heard Mr. N.C. Chatterjee in support of the
contention that the appellant did not know the whereabouts
of Kaniz Fatima and was unable to comply with the orders of
the High Court. We are not satisfied that the appellant
could not have brought Kaniz Fatima before the Court. His
conduct belies his assertion that he did not know where
Kaniz Fatima was. When Kaniz Fatima disappeared for’ 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 whereabouts
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 ease that he got disgusted and let
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. It 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 at
once and restored her to him. The conclusion is inescapable
that he avoided 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 had 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
a closed rickshaw. It would be very unlikely that she would
venture out a second time. It is not suggested that she
left the house to do away with herself or to go away on her
own. These possibilities have not been canvassed before us.
Of the two alternatives which might have suggested
themselves namely that she had left the house to go to some
relative or was 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.
In these circumstances, we are of opinion that when the
Court did make an order for the production of Kaniz 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 wailfully and
deliberately disobeying the direction of the Court. In so
far as the offence of contempt is concerned there was a
manifest disobedience of the order and the High Court could
punish it brevi 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 facie
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
97
punishable under the Code of Civil Procedure and sometimes a
criminal contempt punishable by imprisonment. The only
curbs on the powers of the High Court to punish for contempt
of itself are contained in the Contempt of Courts Act which
limits the term for which a person can be imprisoned to six
months simple imprisonment. The High Court was justified in
punishing this contempt. In view 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 re-
1 SCI/64–7
98
course 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.
In 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
99
to Rani Mandi even after covering a long
distance, these two men Mahesh and Sudama met
me in the way. 1 inquired from them about the
way. Thereupon Mahesh told me that they would
lead me to Rani Mandi. Having pretended to
take me to Rani Mandi Mahesh fraudulently took
me to that house in Gujrati Mohalla from where
I have been recovered. In addition to
Mahesh, his 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. 1 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
prirna 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
In the present case Kaniz Fatima was stated to be under
the age of 18. There were two certified copies from school
registers which showed that on June 20, 1960 she was under
17 years of age. There were also the affidavit of the
father stating the date of her birth and the statement of
Kaniz Fatima to the police with regard to her own age.
These amounted to evidence under the Indian Evidence Act and
the entries in the school registers were made ante litem
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
101
affidavit of the appellant was that 25th December, 1959 was
a holiday and Kaniz Fatima was with him and that no
conversion or marriage had taken place that day. The
appellant’s affidavit on personal knowledge that no marriage
had taken place was therefore a proper affidavit. It
could not be stated that he could not swear to such a fact
on personal knowledge. The affidavits of Mahesh filed from
time to 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.
In 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
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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, Inspite 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
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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 they state that she
ran away early in June 1960 because she became pregnant. It
would be difficult to hide such an advanced pregnancy till
June 20, 1960 when she, left the house.
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
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and his child for whose safety he was so solicitous. 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.
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. Barnardo(1), The
Queen v. Barnardo(2), and Thomas John Barnardo v. Mary
Ford(3). 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.
There is neither doubt nor complexity in this proposition,
once it is held that the disobedience was wailful.
We pass no order in the other appeal but we hope that if
Mahesh renews the petition, the High Court will put him to
strict proof of his allegations regarding the age, the
conversion of Kaniz Fatima and his marriage with her and his
lack of interest in her welfare for over three years before
ordering a second time that Kaniz Fatima be brought into
Court.
Cr. App. No. 227 of 1960. Dismissed.
Cr. App. No. 228 of 1960. No orders passed
(1) 23 Q.B.D., p.305. (2) 24 Q.B.D., p.283.
(3) [1892] A.C., 326.
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