The main legal point established is that the writ of habeas corpus cannot be issued against a person who is abroad, and the person under whose custody the detenue is must be within the jurisdiction of the court at the time the rule nisi is issued.

1. This is a petition by a person who is said to be in love with the third respondent for the issue of a writ of habeas corpus "directing the first respondent to release the third respondent from his illegal custody and to direct that she be set at liberty."

2. In Para.3 of the petition a reference is made to a letter dated 26th March 1975, said to have been written by the third respondent to the petitioner in Hindi, Ext. P-1, and it is stated that the third respondent had mentioned in the letter "that her father, the 1st respondent, has actually imprisoned her in the house". In Para.4 there are the following averments:

"But on 16th August 1975 suddenly the 3rd respondent was taken by the 1st respondent with the connivance of the 2nd respondent to their ancestral home in Gujarat. The petitioner was expecting that they would return soon. But now it is reliably informed that the 3rd respondent is in illegal custody of the 1st respondent. It is all being done under the instructions of the 2nd respondent who is even now staying in Cochin. In fact practically the 3rd respondent is imprisoned by the 1st respondent in Bhuj, Cutch. She is not free to move about according to her own will and pleasure even though she is a major who has completed 19 years."

3. We doubted whether a petition for the issue of a writ of habeas corpus for the release of the third respondent who, according to the averments in the petition, is under detention in Bhuj, Cutch; the person alleged to be illegally detained the third respondent, and what is more important, the first respondent, the person, who it is alleged has detained the third respondent, being outside the jurisdiction of this court, would lie. Arguments were therefore heard on this aspect.

4. Counsel on behalf of the petitioner relied mainly if not entirely, on the amendment that has been made to Art.226 of the Constitution and on the fact that at one time the first and third respondents were staying in Cochin for a long time and that the illegal custody of the third respondent commenced at Cochin and further the second respondent the brother of the first respondent who masterminded the removal of the third respondent to Cutch is still staying in Cochin. It is Art.226 (1-A) of the Constitution that has been relied on by counsel which is in these terms:

"226 (1 A). The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."

We do not think that Art.226 (1-A) would be helpful in the matter of deciding the question of jurisdiction of this court in the case of the issue of a writ of habeas corpus. It appears to be well settled that:

"the writ of habeas corpus cannot be issued against a person who is abroad, it being issuable only for immediate service on a person who is within the jurisdiction at the date of the issue (R. v. Pinckney (1904) 2 K.B. 84)"

The following passage from the decision of the Bombay High Court in Mohamedan Allabux v. Ismailji Abdulai (A.I.R.1926 Bombay 332) also indicates that the person detained must be in the custody or control of a person within the jurisdiction.

"Assuming for a moment that this court has under its common law powers jurisdiction to issue a writ for the production of a person outside British India, provided it is satisfied' that he is in the custody or control of a person within its jurisdiction it cannot be said that S.491 directly deprived the High Court of that jurisdiction."

To the same effect is the ruling of the Allahabad High Court in Shiva Prasad Naithani v. Emperor A.I.R. 1929 All. 347.

5. A writ has to be issued to the person who has illegally detained or in whose custody or control a person