WP/25062/2007 of Yenuga Pavan Kumar Vs Anil Kumar Agarwal on 27 December 2007

1. (2006) 6 SCC 207

2. AIR 2000 SC 2966

3. (2006) 6 SCC 207

4. 2007 AIRSCW 3023

5. 1964 SC 1625

6. 1975 CRL.L.J 1531

Counsel for the Petitioner: : M.R.K. Chakravarthy.

^ Counsel for the respondent 1 & 2 : Sri J.V. Prasad.

Counsel for the respondent 3 to 6 : Advocate General < Gist:

>Head Note

? Cases referred

7. (2006) 6 SCC 207

8. AIR 2000 SC 2966

9. (2006) 6 SCC 207

10. 2007 AIRSCW 3023

11. 1964 SC 1625

12. 1975 CRL.L.J 1531

ORAL ORDER:(per A. Gopal Reddy, J)

The petitioner Yenuga Pavan Kumar, resident of Vijayawada has filed thiswrit of habeas corpus for issuance of a direction to the respondents 1 and 2 toproduce his wife – Smt. Y. Ashima Agarwal and to set her at liberty to join thesociety of the petitioner.

Petitioner has filed the petition alleging that the petitioner and the allegeddetenu, daughter of respondents 1 and 2 - Ashima Agarwal, resident of Delhi, fell inlove while they were studying in USA in 2001, that he got married the allegeddetenu on 14.8.2006 as per Hindu rites and customs at Aryasamaj Mandir,Safdarjung Enclave, B-2, New Delhi as per registration bearing No.8889/1977 andthey were also issued a certificate to the said effect by Aryasamaj Mandir confirmingthe marriage of the petitioner with Ashima Agarwal. After the marriage, the

petitioner stayed at New Delhi during August, 2006 to October, 2006 and again fromJanuary, 2007 to April, 2007 and during the said period they decided to get themarriage registered under the Hindu Marriage Act and accordingly applied forregistration of the marriage on 19.2.2007 before the Marriage Registrar, South-West,New Delhi, who directed them to be present on 23.2.2007 for the purpose ofregistration accompanied by the Gazetted Officer who attested their application andrelated documents. Since the concerned Gazetted Officer was not available on23.2.2007, they again applied for registration of their marriage on 6.4.2007. Oncoming to know of the marriage, on receipt of notice-dated 11.4.2007 from the Officeof the Marriage Registrar, South-West, New Delhi, the 1[st] respondent took hisdaughter to the office of the Marriage Registrar on 20.4.2007 and made her to statethat she has not signed the application for registration of the marriage. Efforts werealso made through Sri G. Rama Kotaiah, a Gazetted Officer working for Governmentof Andhra Pradesh at New Delhi and who attested the application form and therelevant documents, to give a statement before the Registrar to the effect that he hasattested the application submitted for registration of marriage on the request of theChief Security officer of Sri N. Janardhan Reddy, which may not be taken intoconsideration. The petitioner is in serious life threat as the police are threatening tokill him at the instance of respondents 1 and 2 and respondent No.4 called himnumber of times to the Police Station and threatened him with dire consequences. First respondent came to Hyderabad on 17.5.2007 and met the father of thepetitioner in Grand Kakatiya Lobby at Greenlands, Begumpet, Hyderabad andthreatened him with dire consequences if the petitioner did not leave the companyof his daughter and asked his father to persuade the petitioner to cancel themarriage. It is further alleged that on 1.6.2007 the alleged detenu ran away from herparents house and joined the petitioner society and on coming to know the samethe 1[st] respondent with the help of his lawyer and respondent No.4 met the couplein Taj Hotel, Mansingh Road, New Delhi and took her back promising that a formalgrand reception will be arranged, but the 1[st] respondent failed to honour thepromise. Since then the alleged detenu is not in touch with him and all his efforts tocontact her failed. The wife of the petitioner is under illegal custody of respondents 1and 2 who illegally detained and confined her in the house. Respondents 1 and 2are pressurizing respondents 4 and 5 to kill the petitioner in an encounter.Therefore, the petitioner sought for a direction to the respondents 1 and 2 for production of the alleged detenu.

production of the alleged detenu.

Respondents 1 and 2 filed a counter-affidavit denying the allegation of illegalconfinement of the alleged detenu stating that their daughter Ashima Agarwal isliving in Delhi at her parental house i.e. A.1, Anand Niketan, New Delhi and hasnever lived outside her parental house even for a day while she was in Delhi. She isemployed and as per her business requirements or otherwise travels within andoutside the country. She went to USA and she stayed there during the period from23.8.2007 to 7.9.2007 and then to UAE and stayed there during the period from14.11.2007 to 19.11.2007 apart from to other places in the country from time to time.To the counter-affidavit, a copy of travel ticket to Mumbai during the period 16.6.07to 19.6.907 and a copy of her passport showing her departures and arrivals in USA,Dubai and India on the relevant dates were also filed to substantiate that she wasnever in illegal detention of the respondents 1 and 2. No marriage has taken placebetween the petitioner and the alleged detenu on 14.8.2006 as claimed and that theapplication for registration of the marriage has been rejected by the Registrar ofMarriages, New Delhi on the statement made by the alleged detenu and that thefrauds committed by the petitioner for registration of the marriage are deeplydeliberated and designed. The certificate of marriage dated 14.8.2006 is a falsedocument and petitioner sought for registration on the basis of false and forgeddocuments. The Additional District Magistrate/Marriage Officer (SW), New Delhi byorder dated 25.7.2007 disbelieved the documents filed by the petitioner andrejected the application for registration of marriage.

The 5[th] respondent filed a counter stating that the petitioner is a resident ofD.No.31-14-16, Danayya Street, Machavaram, Vijayawada which comes within thelimits of VII Town Police Station, Vijayawada and denied the allegations made bythe petitioner and further stated that nowhere the petitioner has mentioned about thealleged threats of 5[th] respondent threatening to kill the petitioner under the influenceof respondent No.1 and there was no occasion for the 5[th] respondent to interferewith the life and personal liberty of the petitioner as no complaint has been lodgedagainst him.

The petitioner also filed a reply affidavit wherein the only averment made isthat Smt. Ashima Agarwal came to Hyderabad in the month of August, 2003 andlived with the petitioner at Hyderabad and she had always shown her desire to livewith him. Further, part of cause of action arose at Hyderabad on 17.5.2007 when the 1[st] respondent came to Hyderabad and threatened the petitioner with direconsequences and on several dates when the 5[th] respondent called the petitionerand threatened him.

The learned counsel for the petitioner vehemently contended that since thealleged detenu was with the petitioner for some time at Hyderabad during the monthof August, 2003 and since there were threats administered to the petitioner throughthe 5[th] respondent at the instance of respondent No.1, who visited Hyderabad on17[th] May, 2007, part of cause of action had arisen in the State of Andhra Pradeshand, as such, this Court has jurisdiction to entertain the writ petition. In support ofhis contention, the learned counsel relied upon the decisions of the Supreme Court i n OM PRAKASH SRIVASTVA v. UNION OF INDIA AND ANOTEHR[[1]] and NAVINCHANDRA N. MAJITHIA v. STATE OF MAHARASHTRA[[2]].

On the other hand, the learned counsel appearing for the respondents 1 and2 submitted that no part of cause of action had arisen in the State of AndhraPradesh and, as such, this Court has no territorial jurisdiction to entertain thepetition. He further submitted that no marriage had taken place between thepetitioner and the alleged detenu and the petitioner tried to obtain registration ofmarriage on the basis of false and forged documents and the Additional DistrictMagistrate/Marriage Officer, South-West, New Delhi by order dated 25.7.2007rightly declined to grant registration of marriage on the basis of the documentsproduced by the petitioner and, therefore, prayed to dismiss the writ petition.

The only question that arises for consideration in this writ petition is, whetherthis Court has jurisdiction to entertain the writ petition on the facts on which the writpetition was founded?

There is no dispute that under Article 226 of the Constitution of India, HighCourt can exercise power to issue direction, order or writs for the enforcement of anyof the fundamental rights conferred by Part III of the Constitution or for any otherpurpose if the cause of action wholly or in part had arisen within the territories inrelation to which it exercises jurisdiction notwithstanding that the seat of theGovernment or authority or the residence of the person against whom the direction,order or writ is issued is not within the said territories. Therefore, if the petitioner hasbeen able to establish that even a part of cause of action had arisen within theterritories in relation to which this Court exercises jurisdiction, the petitioner canmaintain the present writ petition.

As per the averments of the petitioner himself, the following facts are notdisputed. He is a resident of Vijayawada town and his marriage with the allegeddetenu Ashima Agarwal, daughter of respondents 1 and 2, is alleged to have takenplace on 14.8.2006 at Aryasamaj Mandir, New Delhi. According to him, the allegeddetenu came to Hyderabad only in the month of August, 2003 i.e. prior to themarriage said to have been taken place at New Delhi and the alleged detenuproposed the marriage in June, 2006 at New Delhi. Petitioner and the allegeddetenu applied for the registration of their marriage on 19.2.2007 before theMarriages Registrar, South-West, New Delhi. Alleged detenu ran away from herparents house and joined the petitioner company on 1.6.2007 at New Delhi and the1[st] respondent with the help of Respondent No.4 ie Sub-Inspector of Police, TilakMarg P.S, New Delhi met the couple in Taj Hotel, Mansingh Road, New Delhi andtook the alleged detenu back with a promise that a formal reception will bearranged. According to the petitioner, thereafter the alleged detenu was under theillegal detention of respondents 1 and 2 at their house at Delhi.

Conclusion

At this stage, we may also refer to the order dated 25.7.2007 passed by theAdditional District Magistrate/Marriage Officer, South-West, Kapasheera, NewDelhi, a copy of which has been filed along with the Writ Petition, rejecting theapplication for registration of marriage of the petitioner with the alleged detenu. Theorder discloses that Ms. Ashimia Agarwal visited the Office of the MarriageOfficer on 20.4.2007 and made a statement that she had signed blank applicationform for registration of marriage without being aware about the contents of theapplication, that she had never visited Hyderabad, where the stamps werepurchased and affidavits were notarized, that she had signed blank affidavits andshe was not aware about the contents of the affidavits and that the petitioner neverstayed at A.1, Anand Niketan, New Delhi and requested for rejection of theapplication for registration of marriage. The report also discloses that the S.H.O,R.K. Puram forwarded a report stating therein that as per the statement of thealleged detenu, her parents and other persons, they are not aware of any marriagebetween the petitioner and the alleged detenu. The report also confirmed that thepetitioner has not stayed at A.1, Anand Niketan, New Delhi which was shown as theaddress in the application for registration of marriage and that the alleged detenualso gave statement that the petitioner has neither resided in her house nor shemarried the petitioner and that the petitioner got her signatures on some blank stamp papers purchased in the State of Andhra Pradesh. The order furtherdiscloses that one G. Rama Kotaiah, Assistant Director, A.P. Tourist InformationCentra, Ashoka Road, New Delhi who issued a certificate of identification that hehas attended the marriage solemnization ceremony on 14.8.2006, appeared beforethe Marriage Officer and stated that he did not attend the marriage and that hecertified on the recommendation of one of his friends who is working as Securityofficer to Sri N. Janardhan Reddy.

Before we deal with the question on the above facts brought on record, it isapt to notice the observations of the Supreme Court in NAVINCHANDRA N.MAJITHIA v. STATE OF MAHARASHTRA at para 37 of the judgment, which are in the following terms:

“Therefore, in determining the objection of lack of territorialjurisdiction the Court must take all the facts pleaded in support ofthe cause of action into consideration albeit without embarkingupon an enquiry as to the correctness or otherwise of the saidfacts.In other words the question whether a High Court hasterritorial jurisdiction to entertain a writ petition must be answeredon the basis of the averments made in the petition, the truth orotherwise whereof being immaterial. To put it, differently, thequestion of territorial jurisdiction must be decided on the factspleaded in the petition.” (emphasis supplied).

In view of the above, it is neither expedient nor are we inclined to go intothe aspect whether the marriage between the petitioner and the alleged detenu asclaimed by the petitioner had taken place on 14.8.2006 at Aryasamaj Mandir Delhias certified by Aryasamaj Mandir, whether the Marriage Officer, New Delhi hasproperly evaluated the material placed before him including the statement of thealleged detenu and others in arriving at the decision to reject the application forregistration of the marriage of petitioner and the alleged detenu and whether thealleged detenu gave statements before the authorities on her own or she has beenpressurized by her parents to give false statements. This Court is only concerned,even if the marriage as claimed by the petitioner with the alleged detenu is true,whether on the factual foundation of the writ petition, this Court has jurisdiction toentertain the petition.

From the facts as narrated by the petitioner himself, as detailed above, it isclear that the petitioner and the alleged detenu never resided together in the State ofAndhra Pradesh after the marriage alleged to have taken place on 14.8.2006 at

New Delhi. Therefore, no cause of action had arisen in the State of AndhraPradesh to enable this Court to entertain the writ petition. The petitioner has notbeen able to establish that even a part of cause of action had arisen in the State ofAndhra Pradesh. The so called visit of the alleged detenu to Hyderabad in themonth of August, 2003 is three years earlier to the marriage alleged to have takenplace on 14.8.2006. No particulars have been furnished by the petitioner as towhether the alleged detenu has ever lived with him at the address furnished in thewrit petition i.e. at Vijayawada or they resided together in any part of the State ofAndhra Pradesh after their marriage said to have been taken place on 14.8.2006.Therefore, even if the marriage as claimed is true, on the factual foundation of thewrit petition, it would not be possible for this Court to come to the conclusion that apart of cause of action had arisen within the territories to which this Court exercisesjurisdiction so that this Court has jurisdiction to entertain the writ petition.

The contention of the petitioner that the 1[st] respondent had visitedHyderabad on 17.5.2007 and threatened the petitioner with dire consequences andthreats were administered through the 5[th] respondent and, therefore, part of causeof action had arisen within the jurisdiction of this court has also no merit. 5[th]respondent in his counter affidavit categorically denied the allegations of thepetitioner and stated that he never visited the house of the petitioner nor interferedwith the personal life and liberty of the petitioner. Further, no material has beenplaced on record to show that the petitioner has ever made any complaint to thepolice about the alleged threats of the 1[st] respondent or the interference of the 5[th]respondent with his life and personally liberty.

In OM PRAKASH SRIVASTAVA vs. UNION OFINDIA AND ANOTHER[[3]], relied upon by the learned counsel for the petitioner, which relates to conditions ofprisoners in the State of U.P, the Supreme Court observed that the Delhi High Courthas not dealt with the question as to whether it had jurisdiction to deal with the writpetition and merely observed that it may have jurisdiction, but the issue can be moreeffectively dealt with by the Allahabad High Court. The Supreme Court observedthat it was open to the Delhi High Court to say that no part of the cause of actionarose within the territorial jurisdiction of the High Court, but it did not do so. Thisdecision has no application to the facts of the case since we have already held thaton the facts set out by the petitioner himself in the petition, the petitioner has failedto establish that even a part of cause of action had arisen within the jurisdiction of this Court.

However, it may be noted that in the very same judgment, the Supreme Courtwhile considering Clause (2) of article 226 of the Constitution of India, categoricallyheld that the question whether or not cause of action wholly or in part for filing a writpetition has arisen within the territorial limits of any High Court has to be decided inthe light of the nature and character of the proceedings under article 226 of theConstitution. In order to maintain a writ petition a writ petitioner has to establish thata legal right claimed by him has prima facie either been infringed or is threatened tobe infringed by the respondent within the territorial limits of the Court’s jurisdictionand such infringement may take place by causing him actual injury or threat thereof. The petitioner herein has not been able to establish that his legal right has beeninfringed by the acts committed by the respondents within the territories to which thisCourt exercises jurisdiction.

I n NAVINCHANDRA N. MAJITHIA v. STATE OF MAHARASHTRA,

I n NAVINCHANDRA N. MAJITHIA v. STATE OF MAHARASHTRA, dealing with the quashing of FIR, it was held:

“The mere fact that FIR was registered in a particular State isnot the sole criterion to decide that no cause of action has arisen evenpartly within the territorial limits of jurisdiction of another State. Nor arewe to be understood that any person can create a fake cause of actionor even concoct one by simply jutting into the territorial limits ofanother State or by making a sojourn or even a permanent residencetherein. The place of residence of the person moving a High Court isnot the criterion to determine the contours of the case of action in theparticular writ petition. The High Court before which the writ petitionis filed must ascertain whether any part of the cause of action hasarisen within the territorial limits of its jurisdiction. It depends upon thefacts in each case.”

On the facts pleaded in the present writ petition, we have come to theconclusion that this Court has no territorial jurisdiction to entertain the writ petitionas no part of the cause of action had arisen within the territorial limits of this Court.

The Supreme Court in ALCHEMIST LIMITED & ANOTHER vs. STATEBANK OF SIKKIM & OTHERS[[4]]after scanning the case law on the point of‘territorial jurisdiction’ held thus:

From the aforesaid discussion and keeping in view the ratiolaid down in catena of decision by this Court, it is clear that for thepurpose of deciding whether facts averred by the petitioner-appellant,would or would not constitute a part of cause of action, one has toconsider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a smallfraction of the cause of action arises within the jurisdiction of the Court,the Court would have territorial jurisdiction to entertain the suit/petition.Nevertheless it must be a ‘part of cause of action’, nothing less thanthat.

However, S.B. Sinha, J speaking for a Three-Judge Bench of the SupremeCourt in KUSUM INGOTS & ALLOYS LTD. v UNION OF INDIA AND

ANOTEHR[[5]]Bench held:

“We must, however, remind ourselves that even if a small partof cause of action arises within the territorial jurisdiction of the HighCourt, the same by itself may not be considered to be a determinativefactor compelling the High Court to decide the matter on merit. Inappropriate cases, the Court may refuse to exercise its discretionaryjurisdiction by invoking the doctrine of forum conveniens. (SeeBhagat singhBugga v. Dewan Jagbir Sawhney (AIR 1941 Cal670), Madanlal Jalan v. Madanlal ( IR 1949 Cal 495), Bharat CokingCoal Ltd., V. Jharia Talkies &Cold Storage (P)Ltd., (1997 CWN122), S.AS. Jain & Co. V. Union of India ( (1994) CHN 445) andNew Horizons Ltd. V. Union of India (AIR 1994 Del. 126).”

Further, even if the marriage as claimed by the petitioner is true and part ofjurisdiction had arisen within the territories to which this Court exercises jurisdiction,he has an alternative remedy of approaching the other forums ie. Criminal Courtunder Section 97 of the Code of Criminal Procedure or has even a right to approachthe Civil Court in exercise of his matrimonial rights, which he may have against thealleged detenu, for restitution of conjugal rights. In this regard, we may refer to theobservations of the Supreme Court in MOHD. IKRAM HUSSAIN v. STATGE OF

U.P.[[6]]Justice Hidayatullah, speaking for the Bench observed thus:

Exigence of the writ at the instance of a husband is very rare inEnglish Law, and in India the writ of habeas corpus is probably neverused by a husband to regain his wife and the alternative remedy undersection 100 of the Code of Criminal Procedure is always used. Thenthere is the remedy of civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does notaccount to an offence and to the former if it does. In both theseremedies all the issues of fact can be tried and the writ of habeascorpus is probably not demanded in similar cases if issues of facthave first to be established. This is because the writ of habeas corpusis festinum remedium and the power can only be exercised in a clearcase.

Following the above decision of the Supreme Court, a Division Bench of theKerala High Court in T. RAMACHANDRAN v. V.K. KUTTAN AND OTEHRS[[7]],while dealing with the jurisdiction of a High Court exercising the power of habeascorpus in a matter where the custody of a wife is sought by the husband, held that tillthe factum of wrongful confinement and illegal custody are established in methodsknown to law, the Court cannot assume and hold the respondents responsible foracts, which in law would constitute an offence and the issuance of a writ of habeascorpus would necessarily pre-suppose the factum of wrongful confinement.Accordingly, it was held that it would be more appropriate to invoke the provisions ofthe Code of Criminal Procedure and the jurisdiction of the District Magistrates, Sub-Divisional Magistrate, or Magistrates of the First Class as contemplated by Section97 of the Code of Criminal Procedure before whose court the question of fact can beresolved after due enquiry. It was also held that it would not be expedient on the partof the Court to embark upon such an enquiry when the petitioner can have such anenquiry before other forums.

In the light of the legal position as referred to above and the facts on whichthe writ petition has been founded, we are of the view that no part of cause of actionhad arisen within the territorial jurisdiction of this Court and as such this Court hasno jurisdiction to entertain the writ petition. No doubt the order of the DistrictMagistrate/Marriage Officer, New Delhi, dated 25.7.2007 discloses that the factum ofthe marriage of the petitioner with the alleged detenu has been denied by thealleged detenu who gave a statement before the said authority and the report of thepolice also did not favour the petitioner, which belies the contention of the petitionerthat he married the alleged detenu and she has-been under the illegal detention ofher parents. But, this Court cannot go into the truth or otherwise of those facts asthey are immaterial for the purpose of this writ petition. Even if the marriage asclaimed by the petitioner is true, on the basis of the averments made in the writpetition, it cannot be said that a part of cause action had arisen within thejurisdiction of this court to entertain the present writ petition. The facts as pleadedby him gives an impression that he tried to create a fake cause of action to enablethis Court to entertain the writ petition though he is fully aware that this Court has nojurisdiction to entertain it. We, therefore, see no merit in the contentions of thelearned counsel for the petitioner and decline to issue a writ of habeas corpus asprayed for.

Accordingly, the writ petition is dismissed as not maintainable withexemplary costs of Rs.2,000/- payable to the A.P. High Court Legal ServicesCommittee within a period of four weeks from today.

_________________

A. GOPAL REDDY, J

_________________

27[th] December, 2007 G. BHAVANI PRASAD, J

LR copy to be marked: Yes

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[1](2006) 6 SCC 207

[2]AIR 2000 SC 2966

[3](2006) 6 SCC 207

[4] 2007 AIR SCW 3023

[5](2004) 6 SCC 254

[6]1964 SC 1625

[7]1975 CRL.L.J 1531