{"id":170895,"date":"1963-10-09T00:00:00","date_gmt":"1963-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-ikram-hussain-vs-state-of-u-p-others-on-9-october-1963"},"modified":"2016-03-04T08:22:31","modified_gmt":"2016-03-04T02:52:31","slug":"mohd-ikram-hussain-vs-state-of-u-p-others-on-9-october-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-ikram-hussain-vs-state-of-u-p-others-on-9-october-1963","title":{"rendered":"Mohd. Ikram Hussain vs State Of U.P. & Others on 9 October, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohd. Ikram Hussain vs State Of U.P. & Others on 9 October, 1963<\/div>\n
Equivalent citations: 1964 AIR 1625, \t\t 1964 SCR (5)\t 86<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Hidayatullah, M.<\/div>\n
           PETITIONER:\nMOHD. IKRAM HUSSAIN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. & OTHERS\n\nDATE OF JUDGMENT:\n09\/10\/1963\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nGUPTA, K.C. DAS\n\nCITATION:\n 1964 AIR 1625\t\t  1964 SCR  (5)\t 86\n CITATOR INFO :\n RF\t    1981 SC 723\t (14)\n RF\t    1981 SC1026\t (4)\n R\t    1982 SC1057\t (11,18)\n R\t    1988 SC1796\t (16)\n\n\nACT:\n   Habeas   Corpus--Petition   for   custody   of    alleged\nwife--Power  of Court to order inquiry into  facts--Contempt\nof   Court--Punishment\tfor--Constitution  of  India,\tArt.\n226--Code  of Criminal Procedure, 1898 (Act 5 of  1898),  s.\n491.\n\n\n\nHEADNOTE:\n    Proceedings\t under\ts.  491\t of  the  Code\tof  Criminal\nProcedure  and\tArt. 226 of the Constitution of\t India\twere\nstarted by one Mahesh for a writ, order or direction in\t the\nnature\tof  a writ of habeas corpus to release\this  alleged\nwife  Kaniz Fatima alias Sheela from unlawful  detention  by\nthe appellant, her father and for delivery of the said Kaniz\nFatima to him.\tOn August 26, 1960, the High Court passed an\norder  by  which  the  objections  of  the  appellant\twere\noverruled  and\the was directed to bring  before  the  Court\nKaniz  Fatima  alleged to be held in  unlawful\tconfinement.\nThe appellant was given ten days time to obey the direction.\nAs the direction was not complied with and Kaniz Fatima\t was\nnot produced in Court\n87\nthe High Court passed  another order on\t September  16, 1960\nby  which  the\tappellant was  committed  for  contempt\t and\nsentenced to simple imprisonment for three months and to pay\nthe costs. The appellant came to this Court by special leave\nagainst the orders of the High Court.\n    Held:   The\t order\tof the\tHigh  Court  committing\t the\nappellant for contempt was justified because the High  Court\nrightly\t reached  the conclusion that the  appellant  having\nknowledge of the whereabouts of Kaniz Fatima and having\t the\ncustody\t  of   her  through  another,  was   wailfully\t and\ndeliberately  disobeying the direction of the Court.  In  so\nfar  as\t the offence of contempt was  concerned,  there\t was\nmanifest disobedience of the order and the High Court  could\npunish by ordering the appellant to be detained in prison.\n    (ii) A writ of habeas corpus issues not only for release\nfrom  detention\t by  the State but  also  for  release\tfrom\nprivate detention. At common law, a writ of habeas corpus is\navailable  to the husband for regaining the custody  of\t his\nwife  if  she is wrongfully detained by anyone\twithout\t her\nconsent.  Hence the order of the High Court was not  without\njurisdiction.\tHowever, issuing of a writ of habeas  corpus\nat the instance of a husband is very rare in English law. In\nIndia,\tsuch a writ is probably never used by a\t husband  to\nregain\this wife and the alternative remedy under s. 100  of\nthe  Code  of Criminal Procedure is always used.   There  is\nalso the remedy of a civil suit for restitution of  conjugal\nrights.\t In both these cases, all the issues of fact can  be\ntried and the writ of habeas corpus is probably not demanded\nin  similar  cases  if\tissues of  fact\t have  first  to  be\nestablished.   This is because the writ of habeas corpus  is\nfestinum remedium and the power can only be exercised in a a\nclear  case.   That is particularly so in  cases  where\t the\npetitioner  is\thimself charged with a criminal\t offence  in\nrespect of the very person for whose custody he demands\t the\nwrit.\tA writ of habeas corpus at the instance of a man  to\nobtain possession of a woman alleged to be his wife does not\nissue as a matter of course.  Though a writ of right, it  is\nnot  a\twrit  of course, especially when  a  man  seeks\t the\nassistance  of the court to regain the custody of  a  woman.\nBefore\ta  court  accedes to his request,  it  must  satisfy\nitself at least primafacie that the person claiming the writ\nis in fact the husband and whether a valid marriage  between\nhim and the woman could at all have taken place.\n    (iii)  The writ nisi for the production of Kaniz  Fatima\nshould have been preceded by some more inquiry.\t It is wrong\nto  think  that in habeas corpus proceedings  the  Court  is\nprohibited  from  ordering  an inquiry\tinto  a\t fact.\t All\nprocedure  is always open to a Court which is not  expressly\nprohibited  and\t no  rule of the Court has  laid  down\tthat\nevidence shall not be received if the court requires it.\n    The\t Queen\tv.  Barnardo, 23 Q.B.D. 305;  The  Queen  v.\nBarnardo,  24 Q.B.D. 283 and Thomas, John Barnardo  v,\tMary\nFord, [1892] A.C. 326, referred to.\n88\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL  APPELLATE\t JURISDICTION: Criminal Appeals Nos.
\n227 and 228 of 1960.\n<\/p>\n
    Appeals  by special leave from the judgments and  orders
\ndated  September  16, and AugUst 26, 1960 of  the  Allahabad
\nHigh Court in Criminal Misc. Case No. 1519 of 1960.
\n    N.C.  Chatterjee, D.P. Singh and M.I. Khowaja,  for\t the
\nappellants.\n<\/p>\n
C.P. Lal, for the respondent No. 1.\n<\/p>\n
    October 9, 1963. The Judgment of the Court was delivered
\nby
\n    HIDAYATULLAH J.–This judgment will govern the  disposal
\nof Criminal Appeals Nos. 227 and 228 of 1960.  In both these
\nappeals\t the  appellant\t is one Mohammad  Ikram\t Hussain  an
\nAdvocate  of the Allahabad High Court residing in  49,\tZero
\nRoad, Allahabad.  The second respondent in these appeals  is
\none  Mahesh  Prashad,  a  resident  of\t4,  Gujrati  Mohalla
\nAllahabad City but who has not appeared in this Court.\t The
\nother two respondents are the State of U.P. on whose  behalf
\na belated appearance was made by Mr. C.P. Lal, Advocate\t and
\nthe  Station House Officer, Kotwalli, Allahabad who was\t not
\nrepresented at the hearing.  The two appeals are in a  sense
\nconnected  and\timpugn\ttwo  orders of\tthe  High  Court  of
\nAllahabad made respectively on August 26, 1960 and September
\n16,  1960.   They were passed in a proceeding  initiated  by
\nMahesh under s. 491, Criminal Procedure Code and Art. 226 of
\nthe  Constitution  for\ta writ, order or  direction  in\t the
\nnature\tof  a writ of habeas corpus to release\this  alleged
\nwife  Kaniz Fatima alias Sheela from unlawful  detention  by
\nthe  appellant and for delivery of the said Kaniz Fatima  to
\nhim.  The first order was made by the High Court  overruling
\nthe  objections\t of the appellant, directing  him  to  bring
\nbefore the Court the said Kaniz Fatima alleged to be held in
\nunlawful confinement.  By that order the High Court gave the
\nappellant  10  days’  time to obey the\tdirection.   As\t the
\ndirection  was\tnot complied with and Kaniz Fatima  was\t not
\nbrought
\n89<\/span>
\ninto  the  Court,  the High Court passed  the  second  order
\ncommitting the appellant for contempt and sentencing him  to
\nsimple imprisonment for 3 months and to pay the costs.\t The
\nHigh  Court was moved for a certificate but declined  it  by
\nits Order  dated October 14, 1960.  The present appeals have
\nbeen filed by special leave granted by this Court.
\n    On July 28, 1960, Mahesh Prashad filed a petition in the
\nHigh  Court of Allahabad against the Station House  Officer,
\nKotwali\t Allahabad and Ikram Hussain, the  appellant.\tThis
\npetition  purported to be under s. 491,\t Criminal  Procedure
\nCode  and  Art.\t 226 of the  Constitution.   Mahesh  Prashad
\nstated\ttherein\t that sometime in October 1959 he  made\t the
\nacquaintance of Kaniz Fatima, the daughter of the  appellant
\nand a marriage between them took place on December 25,\t1959
\naccording  to  Vedic rites after Kaniz Fatima  had  embraced
\nHinduism.    Mahesh   stated   that  they   used   to\tmeet
\nclandestinely  and Kaniz Fatima became pregnant.   She\tleft
\nhome  in  early June 1960 and went to live with him  at\t his
\nhouse  No.  4, Gujrati Mohalla, Allahabad but  on  June\t 23,
\n1960, the Station House Officer, Kotwali Allahabad  searched
\nthe house and arrested Mahesh and took away Kaniz Fatima  in
\nspite  of  protests  on her part as  also  on  his.   Mahesh
\nfurther\t stated that he was 23 years of age and\t that  Kaniz
\nFatima’s  age,\taccording  to the record  of  the  Allahabad
\nmunicipality  was  21  years and according  to\tthe  medical
\nexamination  at Dufferin hospital immediately after she\t was
\ntaken away from his house, 19 years.  He further stated\t mat
\na  prosecution was started against him under ss.  363,\t366,
\n368  and  376,\tIndian Penal Code and  that,  after  he\t was
\nreleased on bail on July 15, 1960, he searched for his\twife
\nbut  could  not find her and learnt that the  appellant\t was
\nkeeping\t her  confined against her wishes  at  Jaunpur.\t  He
\nasked for a writ for the production of Kaniz Fatima in Court
\nand for her release and swore an affidavit in support of his
\npetition.   In answer to the notice which was issued by\t the
\nHigh Court on July 29, 1960, the Station House Officer,\t and
\nthe appellant appeared before
\n90<\/span>
\nthe High Court and put in their affidavits.  Before we\tdeal
\nwith  those  affidavits\t in detail we  shall  set  down\t the
\nversion\t of the appellant in regard to the disappearance  of
\nKaniz Fatima.\n<\/p>\n
    Kaniz Fatima according to the appellant was a student at
\nthe Hamidia Girls College, Allahabad, where she had enrolled
\nherself\t in  July 1958.\t She appeared for  the\tHigh  School
\nExamination  of 1959 but was unsuccessful.  The\t result\t was
\nannounced  about  the 17th June 1960 and on  June  20,\t1960
\nKaniz Fatima disappeared.  The appellant then filed a report
\nin the police station house to the following effect:
\n“To
\nThe Dy. Superintendent Police,
\nAllahabad.\n<\/p>\n
Sir,
\n      My  daughter Kaniz Fatima alias Sheela, aged about  15
\nyears,\tmedium\tfair complexion, thin body appeared  in\t the
\nHigh  School Examination   of 1960 from Hamidia Girls  Inter
\nCollege.   Unfortunately she failed in the examination.\t She
\nbecame very despondent.\n<\/p>\n
Yesterday,  the 20th of June 1960 at about 5 o’clock in\t the
\nmorning she disappeared from the house and has not  returned
\nhome tilt this time.  I was not in Allahabad yesterday.\n<\/p>\n
      I hope, she will be traced and restored to me, I shall
\nbe obliged.\n<\/p>\n
Yours faithfully,
\nSd\/-Mohd. Ikram Hussain,
\n49, Zero Road, Allahabad.”\n<\/p>\n
    The police caused a searched to be made at the house  of
\nMahesh\ton  the\t evening of June 23, 1960  and\tfound  Kaniz
\nFatima in that house.  Kaniz Fatima then made a statement to
\nthe  police  which  is Annexure ‘B’  to\t the  special  leave
\npetition No. 882 of 1960 in Criminal Appeal No. 227 of 1960.
\nIn that statement Kaniz Fatima stated that she had  appeared
\nfor the High
\n91<\/span>
\nSchool\tExamination from Hamidia College, Allahabad and\t the
\nresult\twas out on June 17, 1960.  As she had failed in\t the
\nexamination  she was very depressed and as her parents\tused
\nto make sarcastic remarks she decided to leave the house and
\ngo to her aunt Sardar Begum in Rani Mandi.  Accordingly\t she
\nleft  in the early hours of the morning but lost her way  as
\nshe  was  a  Parda  girl and had no money  even\t to  hire  a
\nrickshaw.  On the way she met two men Mahesh and Sudama–who
\noffered\t to show her the way to Rani Mandi but instead\ttook
\nher  to\t the  house in Gujrati Mohalla from  where  she\t was
\nrecovered.   She alleged that they criminally assaulted\t her
\nand kept her confined against her will.\t She gave her age as
\nabout 15 years or 16 years but stated that she did not\tknow
\nthe  age entered in the college register.  On the  next\t day
\nanother statement of Kaniz Fatima was recorded by the police
\nand  it is Annexure ‘E’ to the petition above mentioned.  By
\nthis  statement\t she  expressed a desire to  live  with\t her
\nfather, the appellant, and the police handed her over to the
\nappellant  taking  from him a ‘Sapurdaginama’  (Annexure  H)
\ncontaining  an\tundertaking that he would produce  the\tsaid
\nKaniz Fatima whenever required by the police or the Court in
\nconnection with the case against Mahesh Prashad and. others.
\nIt  is thus that the appellant got back his  daughter  Kaniz
\nFatima\twhile Mahesh Prashad was arrested and  charged\twith
\nabduction and rape but was released on bail on or about July
\n15,  1960.  On July 28, 1960, he filed this petition  for  a
\nwrit of habeas corpus.\n<\/p>\n
    We need not concern ourselves with the affidavit of\t the
\nStation Officer, Kotwali, Allahabad.  His position was quite
\nclear.\t He  had handed over the girl to  her  father  after
\ntaking a statement from her. The appellant made a return  on
\naffidavit  supporting  it by an affidavit of one  Ram  Nath.
\nThe appellant’s return stated the facts already narrated  by
\nus  in regard to the disappearance of Kaniz Fatima  and\t her
\nrecovery from No. 4, Gujrati Mohalla, Allahabad,  He  stated
\nfurther\t  that\tKaniz  Fatima  was  not\t with  him,   having
\ndisappeared for a second time in the circumstances
\n92<\/span>
\nnow  to\t be  narrated.\tThe  appellant\t stated\t that  Kaniz
\nFatima\twas very dejected over what had happened to her\t and
\nwas  sent to his brother-in-law, Syed lqtedar  Hussain,\t 51,
\nSabzi Mandi, Allahabad and his wife Mst. Shabbiri Begum, the
\nsister of Kaniz Fatima’s mother.  This was on July 8,  1960.
\nThe appellant and his wife used to go to see Kaniz Fatima at
\nthat house which was less than half a mile from their house.
\nOn  July  20,  1960,  Iqtedar  Hussain\tand  Shabbiri  Begum
\ninformed  him  that Kaniz Fatima had disappeared.   He\tfelt
\nvery dejected and his son Imdad Hussain and Iqtedar  Hussain
\nsearched  for the girl at the houses of all their  relatives
\nin  Allahabad  and also at Faizabad.  The  appellant  stated
\nthat he did not report to the police because of the  scandal
\nand  humiliation.  He expressed his inability to  bring\t the
\ngirl.  He stated that the allegations about the con. version
\nof  Kaniz Fatima, her marriage and pregnancy  were  entirely
\nfalse.\t He  contended\tthat no marriage  could\t take  place
\nbecause Mahesh was already married with a wife living.\t The
\naffidavit  of Ram Nath was earlier filed in support  of\t the
\nlast  allegation.  The appellant now filed an  affidavit  by
\nIqtedar Hussain in support of his affidavit about the second
\ndisappearance of Kaniz Fatima.\n<\/p>\n
    Mahesh Prashad thereupon filed an affidavit in rejoinder
\nby which he reiterated that he was married to Mst. Ram\tRati
\nbut alleged that he had divorced her according to the custom
\nof the caste and that Ram Rati had remarried and was  living
\nwith  her husband.  He alleged that his marriage with  Kaniz
\nFatima\thad  taken  place in  the  presence  of\t respectable
\npersons\t  of  the  locality  and  that\tthe  story  of\t the
\ndisappearance  of  Kaniz  Fatima  was  false  and  she\t was
\nillegally and improperly being detained against her wish  by
\nthe appellant.\n<\/p>\n
    On\tthis material the High Court passed the first  order
\non  August  26, 1960.  From that order it appears  that\t the
\nHigh  Court did not enter into any question of\tfact  except
\nthe age of Kaniz Fatima.  The High Court held that if  Kaniz
\nFatima was a minor no
\n      93<\/span>
\nhabeas corpus application would lie because the father would
\nbe  the\t guardian  but if Kaniz Fatima was  major  then\t the
\napplication  was  competent and Kaniz Fatima  was  the\tbest
\nperson\tto  judge  for herself where she  would\t live.\t The
\nlearned\t Judges were of the opinion that the  issue  whether
\nMahesh\tand  Kaniz  Fatima  were  married  was\tnot  at\t all
\nrelevant.  The age of Kaniz Fatima was taken by the  learned
\nJudges\tto be 19 years in view of the result of the  medical
\nexamination  and  holding  that she was\t major\tthe  learned
\nJudges\taddressed themselves to what they described  as\t the
\nmain  question:\t Whether the appellant had Kaniz  Fatima  in
\nhis  control  ?\t  In  this  connection\tthe  learned  Judges
\nreferred  to the undertaking given by the appellant  to\t the
\npolice\tto  produce  Kaniz  Fatima  whenever  required\t and
\nobserved  that\tit  was his duty to keep a  watch   on\t her
\nmovements.   Finding that there was no date mentioned in the
\naffidavit regarding her second disappearance they ordered  a
\nfresh  affidavit to be filed.  That affidavit was  filed  on
\nthe 11 th August 1960 and was supported by the affidavit  of
\nIqtedar\t Hussain of the same date.  We have referred to\t the
\ncontents of these documents.  The learned Judges pointed out
\nthat the appellant’s conduct was somewhat strange because he
\nhad  neither  reported\tthe second  disappearance  of  Kaniz
\nFatima\tto the police nor informed the Magistrate  in  whose
\nCourt the criminal case was pending about it.  They were  of
\nopinion that it was also very unlikely that Kaniz Fatima who
\nhad  brought such troubles on her head by running away\tfrom
\nhome  would leave the house for the second time without\t the
\nconnivance or aid of someone, and they concluded that person
\ncould  be  none\t other\tthan her  father.   They  took\tinto
\nconsideration  that  the appellant had denied  the  fact  of
\nmarriage and conversion to Hinduism on the basis of personal
\nknowledge  when this could only be on  information  received
\nfrom  Kaniz Fatima and had further sworn an affidavit  about
\nthe  state  of mind of Kaniz Fatima immediately\t before\t her
\nsecond disappearance which he could not have known unless he
\nwas present personally.\t Holding, therefore, that
\n94<\/span>
\nKaniz  Fatima  was  not\t minor and  the\t petition  could  be
\nproceeded  with,  they made an order for the  production  of
\nKaniz Fatima in Court.\n<\/p>\n
    The\t appellant did not produce the girl in obedience  to
\nthe  direction\tof the High Court and the second  order\t was
\npassed\tcommitting  him for contempt and sentencing  him  as
\nstated\talready.   In these appeals both  these\t orders\t are
\nchallenged.   Against the first order it is  contended\tthat
\nthe  High Court was in error in ordering the  production  of
\nKaniz Fatima, acting on the affidavits of Mahesh which\twere
\npatently  false.  Against the second order, it is  contended
\nthat  it was impossible for the appellant to carry  out\t the
\nCourt’s order because Kaniz Fatima was not with him and\t her
\nwhereabouts were not known to him and that the committal for
\ncontempt  and  the  punishment\timposed\t were\tunjustified.
\nLastly, it was urged that the sentence was too heavy.
\n    From  what we have stated above it will appear that\t the
\naction\tof the Court is questioned on two connected  but  in
\nessence entirely separate matters.  The disobedience of\t the
\norder  of the Court entailing punishment for contempt  is  a
\nvery  different matter from the action taken in\t the  habeas
\ncorpus\tpetition.   The\t order of  commitment  for  contempt
\npresents   no  difficulty.   Even  if  the   direction\t was
\ninexpedient,  an  order\t had been made\tfor  bringing  Kaniz
\nFatima\tbefore\tthe  Court and it had to  be  complied\twith
\nunless the appellant could plead and prove his inability  to
\ncomply\twith it.  The question whether the Court  ought,  on
\nthe  materials\tpresent before it, to have called  upon\t the
\nappellant to bring Kaniz Fatima in Court is something  which
\ndoes  not  enter into the obedience of the  order  made.   A
\ndirection  given  by the High Court in a  proceeding  for  a
\nwrit.  of habeas corpus for the production of the body of  a
\nperson has to be carried out and if disobeyed the  contemner
\nis  punishable\tby  attachment and  imprisonment.   A  valid
\nexcuse\twill, however, be that it is impossible to obey\t the
\norder.\n<\/p>\n
95<\/span><\/p>\n
    We\thave  heard Mr. N.C. Chatterjee in  support  of\t the
\ncontention  that the appellant did not know the\t whereabouts
\nof Kaniz Fatima and was unable to comply with the orders  of
\nthe  High  Court.  We are not satisfied that  the  appellant
\ncould  not have brought Kaniz Fatima before the Court.\t His
\nconduct\t belies\t his assertion that he did  not\t know  where
\nKaniz  Fatima was.  When Kaniz Fatima disappeared  for’\t the
\nfirst time the appellant lost no time in making a report  to
\nthe police and the efficiency of the police was demonstrated
\nby the discovery of Kaniz Fatima within two days.  If  Kaniz
\nFatima\tdisappeared a second time the appellant,  unless  he
\nknew where she had gone, should logically have enlisted\t the
\nsupport of the police immediately.  There would, of  course,
\nbe  no point in reporting to the police if  the\t whereabouts
\nwere  to be kept secret because the police might have  found
\nKaniz Fatima thus proving the report to be false.  If  Kaniz
\nFatima\tdisappeared  in mysterious circumstances  it  should
\nhave  occurred\tto  the appellant that\tperhaps\t Mahesh\t and
\nSudama\twhom she had charged with abduction and\t rape  might
\nhave  had a hand in her second disappearance and  then\twhat
\nbetter\tmove  was open to the appellant than to\t go  to\t the
\npolice?\t  It is not his ease that he got disgusted  and\t let
\nKaniz Fatima go her own way.  He started a search for her on
\nhis  own  and  his son and brother visited  the\t houses\t  of
\nrelatives in Allahabad and his son went to Faizabad to\tmake
\nenquiries  there.  It is clear that, on his own showing,  he
\nwas  anxious to find Kaniz Fatima and spared no\t efforts  to
\nfind  her but he did not enlist the support of\tthe  police.
\nThis  as stated already was very surprising because  on\t the
\nfirst  occasion the police had found Kaniz Fatima almost  at
\nonce and restored her to him.  The conclusion is inescapable
\nthat he avoided the police this time.  Again the High  Court
\nis  right in thinking that Kaniz Fatima who had a  harrowing
\nexperience  would  not\tventure out a  second  time.   Kaniz
\nFatima\thad stated that she had got lost when she  left\t the
\nhouse  on the first occasion and that she did not  know\t her
\nway in the town as she had always travelled in
\n96<\/span>
\na closed rickshaw.  It would be very unlikely that she would
\nventure\t out  a second time.  It is not suggested  that\t she
\nleft the house to do away with herself or to go away on\t her
\nown.  These possibilities have not been canvassed before us.
\nOf   the  two  alternatives  which  might   have   suggested
\nthemselves namely that she had left the house to go to\tsome
\nrelative  or  was taken away by Mahesh and  Sudama,  neither
\ncame in the  way of  making a report to the police.  But  if
\nthe  appellant knew where Kaniz Fatima had gone and was\t not
\nanxious that her whereabouts should be discovered the report
\nto  the\t police\t would not be made.   The  excuse  that\t the
\nappellant  was saving himself from scandal  and\t humiliation
\ncannot appeal to anyone because there was enough of  scandal
\nand humiliation already and little could be added to it. The
\nHigh  Court’s conclusion that the appellant  was  harbouring
\nKaniz Fatima and keeping her hidden was impeccable.
\n    In these circumstances, we are of opinion that when\t the
\nCourt  did make an order for the production of Kaniz  Fatima
\neven  if another court would have taken some other steps  it
\nhad  to\t be  carried out unless it was\timpossible  for\t the
\nappellant  to  comply  with it.\t In  our  opinion  the\tHigh
\nCourt’s\t commitment for contempt was justified\tbecause\t the
\nHigh Court rightly reached the conclusion that the appellant
\nhaving the knowledge of the whereabouts of Kaniz Fatima\t and
\nhaving the custody of her through another, was wailfully and
\ndeliberately  disobeying the direction of the Court.  In  so
\nfar  as\t the offence of contempt is concerned  there  was  a
\nmanifest disobedience of the order and the High Court  could
\npunish\tit  brevi  manu\t by ordering  the  appellant  to  be
\ndetained  in prison. The High Court’s powers for  punishment
\nof contempt have been preserved by the Constitution and they
\nare also inherent in a Court of Record.\t The learned  Judges
\nwere perhaps in error in describing it as contempt in  facie
\ncuriae.\t  That\tis contempt of a different sort.   This\t was
\ncontempt by disobedience of an order of the High Court which
\nis sometimes a civil contempt
\n97<\/span>
\npunishable under the Code of Civil Procedure and sometimes a
\ncriminal  contempt  punishable by  imprisonment.   The\tonly
\ncurbs on the powers of the High Court to punish for contempt
\nof itself are contained in the Contempt of Courts Act  which
\nlimits the term for which a person can be imprisoned to\t six
\nmonths simple imprisonment.  The High Court was justified in
\npunishing  this contempt.  In view of the grossness  of\t the
\ncontempt  it  cannot be said that the  punishment  of  three
\nmonths\tsimple\timprisonment was  excessive.   We  therefore
\ndecline\t to interfere with the order of September 16,  1960.
\nCriminal  Appeal  No.  227 of 1960  against  that  order  is
\ndismissed.\n<\/p>\n
    The first order by which Kaniz Fatima was ordered to  be
\nbrought into Court was questioned on the ground of  want  of
\njurisdiction  and for irregularity in the exercise  of\tthat
\njurisdiction.  The High Court acted with jurisdiction.\t The
\nwrit  of  habeas  corpus issues not only  for  release\tfrom
\ndetention  by  the State but also for release  from  private
\ndetention.   At\t Common\t Law a writ  of\t habeas\t corpus\t was
\navailable  to the husband for regaining the custody  of\t his
\nwife  if  she  was wrongfully detained by  anyone  from\t him
\nwithout her consent.  What amounts to wrongful detention  of
\nthe  wife is, of course, a question for the Court to  decide
\nin  each case and different circumstances may  exist  either
\nentitling  or disentitling a husband to this remedy.   There
\nwas  also no material irregularity vitiating the  order\t for
\ninexpediency  is not the same thing as irregularity and\t all
\nthat  has  been\t pointed out is that the  High\tCourt  acted
\nwithout\t sufficient enquiry and deliberation.  We shall\t say
\nsomething  about  this\tbecause this  criticism\t is  perhaps
\njustified.\n<\/p>\n
    Exigence  of  the writ at the instance of a\t husband  is
\nvery  rare in English Law, and in India the writ  of  habeas
\ncorpus\tis  probably never used by a husband to\t regain\t his
\nwife and the alternative remedy under s. 100 of the Code  of
\nCriminal Procedure is always used.  Then there is the remedy
\nof  a  civil  suit  for\t restitution  of  conjugal   rights.
\nHusbands take re-\n<\/p>\n
1 SCI\/64–7
\n98<\/span>
\ncourse\tto the latter when the detention does not amount  to
\nan  offence  and to the former if it does.   In\t both  these
\nremedies all the issues of fact can be tried and the writ of
\nhabeas\tcorpus is probably not demanded in similar cases  if
\nissues\tof  fact  have first to\t be  established.   This  is
\nbecause\t the writ of habeas corpus is festinum remedium\t and
\nthe  power can only be exercised in a clear case.  It is  of
\ncourse\t singularly   inappropriate  in\t cases\t where\t the
\npetitioner  is\thimself charged with a criminal\t offence  in
\nrespect of the very person for whose custody he demands\t the
\nwrit.\n<\/p>\n
    In the present case the police had before them a  report
\nby the appellant that Kaniz Fatima had not returned home and
\non search the police found her in a house where she normally
\nwould  not  be found unless she went there  herself  or\t was
\ncarried there against her will.\t The police arrested  Mahesh
\nin the house and examined Kaniz Fatima and her statement was
\nas follows:\n<\/p>\n
\t\t    ”  …………………………  I had
\n\t      sat  for the High School Examination from\t the
\n\t      Hamidia  College,\t Allahabad  this  year\ti.e.
\n\t      1960.  The result was out on the 17th of\tJune
\n\t      1960.    I failed in the examination,  I\tfelt
\n\t      much depressed, as it was at my instance\tthat
\n\t      my parents had sent me to study in the school.
\n\t      On  my having failed, my parents often  passed
\n\t      sarcastic\t remarks at me. I felt much  grieved
\n\t      and  made\t up my mind to leave the  house\t and
\n\t      move  away  for some time to the house  of  my
\n\t      aunt (mother’s sister) named Sardar Begum, who
\n\t      was  married  to Shri Ziarat Hussain  and\t was
\n\t      living  at Rani Mandi.  Therefore, I  left  my
\n\t      house  for Rani Mandi in the very early  hours
\n\t      as  I had been to Rani Mandi on  the  screened
\n\t      rickshaw\t from\tmy  house   several   times,
\n\t      therefore, I thought that I would find out  my
\n\t      way.   As\t I had left the\t house\twithout\t the
\n\t      knowledge of my parents, hence I had no  money
\n\t      with me even to hire a rickshaw to go to\tRani
\n\t      Mandi.  I was proceeding for Rani Mandi when I
\n\t      lost the way and when I could not find the way
\n\t      99<\/span>
\n\t      to  Rani\tMandi  even after  covering  a\tlong
\n\t      distance, these two men Mahesh and Sudama\t met
\n\t      me in the way.  1 inquired from them about the
\n\t      way. Thereupon Mahesh told me that they  would
\n\t      lead  me\tto Rani Mandi. Having  pretended  to
\n\t      take me to Rani Mandi Mahesh fraudulently took
\n\t      me to that house in Gujrati Mohalla from where
\n\t      I\t have  been  recovered.\t   In  addition\t  to
\n\t      Mahesh, his companion  Sudama was also  there.
\n\t      Being  pushed  in, I was thrust in  the  house
\n\t      from where I have been recovered.\t Since then,
\n\t      I have been kept in concealment in that  house
\n\t      against  my  will up to this  day.  They\thave
\n\t      committed\t the bad act with me by\t force.\t  My
\n\t      age  is about 15 or 16 years. 1 don’t know  my
\n\t      age in the college register.”\n<\/p><\/blockquote>\n
Later  Kaniz  Fatima stated in writing that  she  wanted  to
\nreturn to the appellant.  Kaniz Fatima had described her age
\nas 15 or 16 years and in view of her allegation that she was
\ncompelled to sexual intercourse and brought to the house  by
\na  trick,  offences under ss. 363,366 or 368,  Indian  Penal
\nCode,  depending on her age, and s. 376, Indian\t Penal\tCode
\nwere  alleged against Mahesh.  If Kaniz Fatima was below  18
\nyears of age there would be an offence under s. 368,  Indian
\nPenal  Code  at\t the very least unless she  was\t married  to
\nMahesh\t because   Mahesh  admitted  that  he\thad   sexual
\nintercourse  with  her.\t  In  these  circumstances,  with  a
\nprosecution pending against Mahesh the learned Judges  might
\nwell  have  satisfied themselves first about the  factum  of
\nmarriage  and the age of the girl with more  circumspection.
\nA  writ of habeas corpus at the instance of a man to  obtain
\npossession of a woman alleged to be his wife does not  issue
\nas a matter of course.\tThough a writ of right, it is not  a
\nwrit of course especially when a man seeks the assistance of
\nthe  Court to regain the custody of a woman. Before a  Court
\naccedes\t to  this request it must satisfy  itself  at  least
\nprirna\tfacie that the person claiming the writ is  in\tfact
\nthe  husband and further whether valid marriage between\t him
\nand the woman could at all have taken place.\n<\/p>\n
100<\/span><\/p>\n
    In the present case Kaniz Fatima was stated to be  under
\nthe age of 18.\tThere were two certified copies from  school
\nregisters  which showed that on June 20, 1960 she was  under
\n17  years  of  age.  There were also the  affidavit  of\t the
\nfather\tstating the date of her birth and the  statement  of
\nKaniz  Fatima  to  the police with regard to  her  own\tage.
\nThese amounted to evidence under the Indian Evidence Act and
\nthe  entries  in the school registers were made\t ante  litem
\nmotam.\t As against this the learned Judges apparently\theld
\nthat Kaniz Fatima was over 18 years of age. They relied upon
\nwhat  was  said to have been  mentioned in a report  of\t the
\nDoctor who examined Kaniz Fatima, though that report was not
\nbefore them.  Reference to it was made in the affidavits  of
\nMahesh\tand the Sub-Inspector  which were both\thearsay\t and
\nnot  admissible\t under\tthe Evidence Act  in  proof  of\t the
\ncontents  of a document.  The primary  documentary  evidence
\nought  to have been summoned.  The High Court  thus  reached
\nthe  conclusion\t about\tthe majority  without  any  evidence
\nbefore\tit  in\tsupport\t of it and in  the  face  of  direct
\nevidence against it.\n<\/p>\n
    With regard to the marriage, the learned Judges referred
\nto  the denial by the appellant on personal  knowledge\tthat
\nconversion to Hinduism or marriage had taken place but\tthey
\ndid  not look into the affidavits of Mahesh himself  on\t the
\nsubject.  These affidavits create some doubt.  Mahesh stated
\nthat he first met Kaniz Fatima on the 25th October, 1959 and
\nthat they fell in love with each other and decided to  marry
\nbut “there were hurdles in their way” and marriage with\t the
\n“consent  of  their respective parents\tbecame\timpossible”.
\nRam  Nath’s affidavit (part of which even  Mahesh  accepted)
\nshowed\tthat  Mahesh’s father was dead and  his\t mother\t had
\nremarried.   There  would have been very  little  difficulty
\nwith regard to his parents, if there were any.\tThe question
\nof  the consent of the parents of Kaniz Fatima never  arose.
\nThe  marriage  surprisingly enough was said  to\t have  taken
\nplace  two  months  after the first  meeting  and  the\tdate
\nmentioned was Dec. 25, 1959.  The
\n101<\/span>
\naffidavit of the appellant was that 25th December, 1959\t was
\na  holiday  and\t Kaniz\tFatima was  with  him  and  that  no
\nconversion  or\tmarriage  had taken  place  that  day.\t The
\nappellant’s affidavit on personal knowledge that no marriage
\nhad  taken  place  was therefore a  proper   affidavit.\t  It
\ncould not be  stated that he could not swear to such a\tfact
\non personal knowledge.\tThe affidavits of Mahesh filed\tfrom
\ntime  to  time showed contradictions which  apparently\twent
\nunnoticed.   In his first affidavit filed with the  petition
\nhe  stated  that  Kaniz Fatima and he  had  decided  to\t get
\nmarried\t “secretly” and that the marriage was  done  without
\nthe knowledge of the parents of either party to the marriage
\nand  that  he  and Kaniz Fatima\t met  after  marriage  “only
\nclandestinely”.\t  In  another affidavit he stated  that\t the
\nmarriage  took\tplace  “at the residence  of  the  applicant
\namidst\tthe  respectable  persons of  the  Mohalla  and\t the
\ncommunity” which could hardly be called a ‘secret’ marriage.
\nIn  the\t same affidavit he also stated that  since  marriage
\nKaniz  Fatima and he “were living together and cohabited  in
\nthe  aforesaid\tpremises” and that it was  only\t “after\t the
\nlapse of four months” that Kaniz Fatima was taken away\tfrom
\nhis  house.  His exact words have been reproduced  from\t his
\naffidavits.   This  contradiction  was pointed\tout  in\t the
\naffidavits of the appellant but the learned Judges  declined
\nto go into it because they were of opinion that the question
\nof  marriage  and  other questions  arising  therefrom\twere
\nirrelevant.   The learned Judges did not see that  even\t the
\neligibility  of Mahesh to marry Kaniz Fatima was  called  in
\nquestion  because it was alleged on affidavit that he had  a
\nwife  already  living.\t Under ss. 5 and  11  of  the  Hindu
\nMarriage  Act  (XXV  of\t 1955) a  second  marriage,  with  a
\nprevious  married  wife living, is null\t and  void.   Mahesh
\nadmitted  that he was previously married but he stated\tthat
\nhe  had\t divorced his wife according to the  custom  of\t the
\ncaste  and that his former wife married another\t person\t and
\nwas  living with him.  The learned Judges referred to  these
\nfacts  and  merely stated that as he was a Kori\t or  Kachhi,
\ndivorce was possible but did not try to
\n102<\/span>
\nascertain  whether  divorce  as\t alleged had taken place  or
\nnot.\n<\/p>\n
    These  were\t some of the  circumstances  which  remained
\nundetermined  when the Court ordered the production  of\t the
\ngirl  in Court.\t There is no doubt that the proceeding is  a
\ndiscretionary  one.  Whether the Court feels satisfied\twith
\none  affidavit\tor with another is a matter  mainly  of\t its
\nopinion\t and conviction. The learned Judges must  have\tfelt
\nimpressed  by  the affidavit of Mahesh,\t because  there\t was
\nnothing\t else before them in support of his  version.\tThey
\ndid  not ask him to produce affidavits from the\t respectable
\npersons\t of  the  “Mohalla and community”  before  whom\t the
\nmarriage and conversion was said to have taken place or even
\nto  produce  the photograph which he asserted was  taken  of
\nKaniz Fatima and himself by a photographer,  Inspite of this
\nif  they ordered the production of Kaniz Fatima\t they  acted
\nwith  jurisdiction.  Even if some other person may  consider
\nthe  order  inexpedient,  the order had to  be\tcarried\t out
\nunless\tit was impossible for the appellant to\tcomply\twith
\nit.  For his refusal to comply with it he has been  punished
\nand we need express no sympathy with him but we cannot\thelp
\nexpressing  a sense of doubt about the truth of some of\t the
\nstatements of Mahesh in his affidavits.\n<\/p>\n
    In\tour  opinion  the writ nisi in\tthis  case  for\t the
\nproduction of Kaniz Fatima should have been preceded by some
\nmore  enquiry.\tIt is wrong to think that in  habeas  corpus
\nproceedings the court is prohibited from ordering an inquiry
\ninto a fact.  All procedure is always open to a Court  which
\nis  not\t expressly prohibited and no rule of the  Court\t has
\nlaid down that evidence shall not be received,\tif the Court
\nrequires  it.\tNo  such absolute rule was  brought  to\t our
\nnotice.\t  It may be that further evidence would\t have  borne
\n‘out  what Mahesh stated and then the order could always  be
\npassed\tfor  the  production of Kaniz  Fatima;\tbut  if\t the
\nevidence did not bear out what Mahesh alleged then the order
\nwhich the appellant disobeyed and for which he has to suffer
\n103<\/span>
\nimprisonment  would  never have been  passed.\tThe  learned
\nJudges failed to notice that Mahesh’s affidavit was that she
\nwas  pregnant ‘for 6 months and not as they state  that\t she
\nran away early in June 1960 because she became pregnant.  It
\nwould  be difficult to hide such an advanced pregnancy\ttill
\nJune 20, 1960 when she, left the house.\n<\/p>\n
    It\tremains\t to mention that Mahesh made  several  other
\nwild assertions which he swore on personal knowledge of whom
\na few are quoted here as illustrations:\n<\/p>\n
\t\t     “……………..\t  They in fact\twant
\n\t      to   marry the deponent’s wife to some  person
\n\t      belonging to their own community and religious
\n\t      order, knowing it full well that the  deponent
\n\t      has legally wedded Smt. Kaniz Fatima and\tboth
\n\t      of  them were living together as\thusband\t and
\n\t      wife.”\n<\/p><\/blockquote>\n
\t\t     “That the parents of the deponents wife
\n\t      wish  to\tprocure abortion of  the  conception
\n\t      which  she is presently carrying\tand  thereby
\n\t      cause  criminal  mischief\t to  the  deponent’s
\n\t      married life and happiness and marry her again
\n\t      to  some\tother  person  of  their  caste\t and
\n\t      community and religious order.”
\n\t\t     “That  the deponent further  apprehends
\n\t      that  the police of police station Kotwali  in
\n\t      league with the parents of the deponent’s wife
\n\t      are   detaining\ther  against   her   wishes,
\n\t      illegally\t and forcefully with a view  to\t use
\n\t      her for immoral and  criminal inter-course and
\n\t      purpose.”\n<\/p><\/blockquote>\n
These  statements  some of which could not be  true  to\t his
\npersonal knowledge went without comment.
\n    The\t aftermath  may now be mentioned.   Mahesh  did\t not
\nappear\tin  this Court.\t The notice issued  by\tthe  Supreme
\nCourt  to Mahesh was returned with the endorsement  that  he
\nhad left the house without leaving an address behind.  As  a
\nresult\tof  these proceedings, we were informed\t the  police
\ndropped\t the criminal case.  The petition for habeas  corpus
\nwas not renewed or pressed again in the High Court.   Mahesh
\napparently  ceased  to take any interest in this  case,\t his
\nwife
\n104<\/span>
\nand his child for whose safety he was so solicitous.  Mahesh
\nsaved himself from penal consequences if his act in any\t way
\nhad amounted to a crime, and the appellant in trying to save
\nhis  daughter  from  him overreached  himself  and  suffered
\npenalty under the law.\n<\/p>\n
    The\t High Court relied upon certain cases and  Mr.\tN.C.
\nChatterjee attempted to distinguish them. The cases referred
\nto  by\tMr. Chatterjee were The Queen  v.  Barnardo(1),\t The
\nQueen  v.  Barnardo(2),\t and Thomas John  Barnardo  v.\tMary
\nFord(3).   We do not consider it necessary to refer to\tthem
\nbecause\t the principles on which a person is  released\tfrom
\nprivate detention and custody are well settled and also well
\nknown.\t The High Court can always order the  production  of
\nthe  body  of  a person illegally detained  and\t can  punish
\ndisobedience  of  its order by\tattachment  and\t commitment.
\nThere  is neither doubt nor complexity in this\tproposition,
\nonce it is held that the disobedience was wailful.
\n    We pass no order in the other appeal but we hope that if
\nMahesh\trenews the petition, the High Court will put him  to
\nstrict\tproof  of  his allegations regarding  the  age,\t the
\nconversion of Kaniz Fatima and his marriage with her and his
\nlack of interest in her welfare for over three years  before
\nordering a second  time that  Kaniz  Fatima be brought\tinto
\nCourt.\n<\/p>\n
Cr. App. No. 227 of 1960. Dismissed.\n<\/p>\n
Cr. App. No. 228 of 1960.  No orders passed
\n(1) 23 Q.B.D., p.305.\t\t  (2) 24 Q.B.D., p.283.\n<\/p>\n
\t\t (3) [1892] A.C., 326.\n<\/p>\n
105<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohd. Ikram Hussain vs State Of U.P. & Others on 9 October, 1963 Equivalent citations: 1964 AIR 1625, 1964 SCR (5) 86 Author: Hidayatullah Bench: Hidayatullah, M. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170895","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohd. 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