In the instant case filed before Allahabad High Court, the husband filed a Habeas Corpus Petition and prayed that petitioner no.1(wife) should be produced before the Court.
However, AGA stated that as per the report of the circle officer, the wife had left her matrimonial home on her own due to discord with her husband for the reason that he is stated to have entered into another marriage and a child is also born out of the wedlock and because of the same it was contended that the present petition for a writ of habeas corpus is not entertainable.
When the matter was taken up on the next date, the petitioner’s counsel stated that petitioner no.2 did not enter a second marriage but did not dispute the fact that he was in an extramarital relationship and that a child was also born.
The Court relied on Mohammad Ikram Hussain vs State of U.P. and Ors and Kanu Sanyal vs District Magistrate Darjeeling and observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ, of course, and maybe granted only on the reasonable ground or probable cause being shown.
Hon’ble Court further opined that writ of habeas corpus had been held as a festinum remedium, and accordingly, the power would be exercisable in a clear case. The remedy of a writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course.
While referring to the case at hand, as the wife left her matrimonial home on her own accord due to marital discord, the Habeas Corpus petition filed by the husband is not entertaining.
After opining that the husband can seek other remedies mentioned under criminal and civil law, the Court dismissed the petition.