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IN THE HIGH COURT OF ALLAHABAD
SHAMIM AHMED, J.
Aarfa Bano – Petitioner
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 148 of 2023
Decided On : 16-05-2023
| Table of Content |
|---|
| 1. habeas corpus petition concerning illegal detention (Para 2 , 3) |
| 2. arguments regarding maintainability and legal representation (Para 4 , 5) |
| 3. final disposal of the habeas corpus petition (Para 6) |
JUDGMENT :
SHAMIM AHMED, J.
1. Heard Shri Sikandar Zulqarnain Khan, the learned counsel for the petitioner, Shri Sushil Kumar Mishra, the learned AGA-I for the State-respondent Nos. 1 and 2 and perused the record.
2. The present habeas corpus petition has been filed with the following prayer:
(ii) issue any other writ order or direction which this Hon'ble court may just and proper also kindly be passed in favour of the detenue.
(iii) allow writ petition in favour of the detenue with costs.”
3. This petition has been filed by the father-in-law of the detenue, with the prayer that his daughter-in-law, who is married with the son of petitioner, is in illegal custody of her parents, thus, custody of detenue be given to her father-in-law as her parents are not allowing her to go to her matrimonial house. It has further been stated in the petition that husband of detenue, who is son of petitioner is living in Kuwait for earning his livelihood.
4. Shri Sushil Kumar Mishra, the learned AGA-I has raised a preliminary objection by submitting that the present petition has not been filed by the husband of the detenue and it has been filed by the father-in-law of the detenue, thus, it is not maintainable.
5. Marriage is a contract as per the Muslim Law and husband is bound to give protection, shelter and fulfill all the desires and day to day requirements of his wife. After marriage the husband of the detenue is living and earning in Kuwait and detenue is living with her parents, thus, it cannot be said that she is in illegal detention. It may be possible that detenue herself does not want to go to her matrimonial house when her husband is not living there. Even if there is any grievance, the husband has remedy to approach before appropriate forum, but not the father-in-law, as he has no locus at all.
6. With the above observations, the present habeas corpus is finally disposed of.
AI
A habeas corpus petition is not maintainable where there is no illegal detention and the child is in mother's custody.
Habeas corpus is not maintainable where the detenu is not shown to be in illegal detention.
Voluntary statement by detenue negates illegal custody claim in habeas corpus petition.
A wife leaving home voluntarily does not constitute illegal detention under habeas corpus law.
Habeas corpus is not maintainable where the alleged detenue voluntarily travels abroad and confirms her position to the Court.
The court in habeas corpus proceedings can rely on the wishes of the detainee to establish the legality of detention.
Habeas Corpus petition cannot be used to settle custody issues arising from marital disputes.
A Writ of Habeas Corpus requires proof of illegal detention, which was not established in this case.
Divorce - Illegal detention of son - Grant of custody to mother - Child 3 years old custody given to the petitioner who, being his mother, is the natural guardian.
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