WP/26358/2007 of N.S.Raj Kumar, Vs The Director General of Police, on 24 December 2007

HON’BLE SRI JUSTICE A. GOPAL REDDYANDHON'BLE SRI JUSTICE G. BHAVANI PRASAD

WRIT PETITION No.26358 OF 2007

DATE: 24.12.2007

Between:N.S. Raj Kumar

AND

..... PETITIONER

The Director General of Police,Andhra Pradesh, Hyderabad& 5 others.

.....RESPONDENTS

HON’BLE SRI JUSTICE A. GOPAL REDDYANDHON'BLE SRI JUSTICE G. BHAVANI PRASAD

WRIT PETITION No.26358 OF 2007

ORDER:(Per Hon’ble Sri Justice A.Gopal Reddy)

The petitioner filed this writ petition under Article 227 ofConstitution of India for issuance of a writ of habeas corpus allegingthat he married to one Smt. Sridevi @ Prameela, D/o. P.Krishnaiah,resident of Chennai as per Hindu Rites and Customs and during theirwedlock, they were blessed with two children viz., Kumari Bhavani,aged about 8 years and Sri Acthyath, aged about 6 years. They livedhappily for about 8 years after the marriage. In August, 2005, hismother-in-law took his wife along with children and since then, his wifehas been living with her parents at Chennai. His wife is earning a sum of Rs.4,000/- per month and he used to visit Chennai to see hiswife and children and she used to complain against her mother’sattitude and asked him to leave the place at the earliest before seeingher family members. Hoping that the things will be settled, he did notchoose to lodge any complaint with the police, but from July, 2007onwards, he has not seen his wife and when he made enquiries at hismother-in-law’s house, he was informed that his wife died and wasthreatened not to visit Chennai again. When he rushed to theVadapalani Police Station to lodge a complaint, the police refused tointerfere with the matter stating that it is a matrimonial dispute. Sinceall his efforts to know about his wife are in vain he filed the present writfor production of his wife.

The Station House Officer, Tirupati, 4[th] respondent herein fileda counter stating that on his enquiry the petitioner’s mother and sister,who are residing with him at Kummarathopu, Tirupati stated that thepetitioner’s mother-in-law took his wife and children along with her toMadras to provide medical aid to his wife. Initially, the petitioner alsovisited his wife now and then and for the last one and half years, he leftTirupati and residing at Chennai and since then, he has not visitedTirupati. Even according to the petitioner, he lodged a complaint withthe police at Vadapalani, Chennai, but not with the police of AndhraPradesh.

The Apex Court in Mohd. Ikram Hussain v. State of U.P. (AIR1964 SC 1625) at para 13 held that:

“13. 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 never used bya husband to regain his wife and the alternative remedy under S. 100 of theCode of Criminal Procedure is always used. Then there is the remedy of aCivil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if itdoes. In both these remedies all the issues of fact can be tried and the writ ofhabeas corpus is probably not demanded in similar cases if issues of facthave first to be established. This is because the writ of habeas corpus isfestinum remedium and the power can only be exercised in a clearcase………”

In view of the fact that the petitioner will have an alternativeremedy to move the competent Civil Court for restitution of conjugalrights and also for custody of his children and also remedy underSection 100 Cr.P.C., the Writ Petition cannot be entertained and thesame is accordingly dismissed at the admission stage. No costs.

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A. GOPAL REDDY, J.

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24[th] DECEMBER, 2007 G. BHAVANIPRASAD, J.Tsr.