MOHD. IKRAM HUSSAIN versus STATE OF U.P. & OTHERS

Citation: [1964] 5 S.C.R. 86 · Decided: 09-10-1963 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

86 
SUPREME COURT RF.PORTS 
[1964] J
,,...-, 
1963 
could reconsider the matter. Indeed, learned counsel 
for the first respondent conceded that fact. 
The 
.~red Yakooh 
appellant would have every opportunity to establish 
v. 
. that the first respondent has no workshop at Chidam-
K.S. Radhakmh-baram. Instead of following the straight course, 
nan 
he is trying to shut out further enquiry to arrive at 
the truth. 
ln the circumstances l am of the view 
Subba Rao .I. that this is not a case which calls for the exercise of 
this Court's extraordinary jurisdiction to set aside 
the order of the High Court. 
1963 
Ocroher 9 
In the result, the appeal fails and is dismissed 
with costs of the first respondent. 
ORDER BY COURT 
In accordance with the opinion of the majority 
the appeal is allowed and the Writ Petition filed by 
Respondent No. l is dismissed. 
Respondent No. ·1 
to pay the costs of the appellant in this Court. 
Res-
pondents 2 and 3 to hear their own costs. 
MOHD. IKRAM HUSSAIN 
v. 
STATE OF U.P. & OTHERS 
(M. HIDAYATULLAH 
AND 
K.C. DAS GUPTA JJ.) 
Habeas Curpus-Perition for custody of alleged wife-Power 
of Court to order inquiry into facls-Contempt of Court-Punish- <:ct'. 
ment for-Constitution ·of India, Art. 226-Code of C1·imina/ Pro-
cedure, 1898 (Act S of 1898), s. 491. 
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 ovenuled 
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 
• 
I 
5 S.C.R. 
SUPREME COURT REPORTS 
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 two 
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 where-
abouts of Kaniz Fatima and having the custody of her through 
another, was wilfully 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. Jn both these cases, 
all the issues of fact can he 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 ch<1rged 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 
prima facie that the person claiming the writ is in fact the husband 
and wh

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