Mohd. Ikram Hussain Vs. State of U.P.
& Ors [1963] INSC 203 (9 October 1963)
09/10/1963 HIDAYATULLAH, M.
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.
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 90 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 there from 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 102 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, In spite
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 103 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 104 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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