Habeas Corpi

"HABEAS CORPUS" IN FAMILY LAW
Author(s): Ram Singh

Source: Journal of the Indian Law Institute , OCTOBER-DECEMBER 1970, Vol. 12, No. 4
(OCTOBER-DECEMBER 1970), pp. 545-572
Published by: Indian Law Institute
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Journal of The Indian Law Institute
Volume 12 OCTOBER-DECEMBER Number 4
HABEAS CORPUS IN FAMILY LAW
Ram Singh*
I. Introduction
The celebrated writ of habeas corpus , the most cherished we

human liberty, is historically of later growth, 1 and by no m
can be said to be in existence in England before the reign of Edw
In the course of its gradual progress, it has played a varied
England3 and even at far distant places of the globe whe
transplanted by the adaptation of British system of admini
of justice;4 but during all its luxurious growth the cardinal p
of its administration has all along been the same, namely, to
*B. A., LL.M., Lecturer, Faculty of Law, University of Delhi, Delhi.

1. Edward Jenks, describing the story of the writ, does not trace
origin and rebukes similarly to his readers who attempt to scale the wall
He records :
The writ is accepted as a primordial fact. A few vague flourishes
about ancient liberties are supposed to account for its existence. It
would almost seem as though it were indiscreet to inquire too closely
into the origin of this sacred instrument. And the writer believes
that there was once a time at which such inquiry would indeed have
been indiscreet - that those who then knew most and felt most
strongly about the writ of Habeas Corpus had the best of reasons for
discouraging antiquarian research. It is not likely that Coke and
Seiden and Prynne were really ignorant on the subject. But they
often speak as though they were.
Edward Jenks, "The Story of Habeas Corpus ," 18 L. Q. Rev . 64 (1902).
"The origin of the writ of habeas corpus is uncertain. Although it may
have antedated Magna Carta (1215)". Pendleton Howard; " Habeas Corpus ,"
Encyclopaedia of Social Sciences 233 (New York 1935).
2. 9 Holdsworth, W. S., History of English Law 108 (1926).
3. 2 Halsbury's Laws of England 31 (3d ed. 1955).
4. Describing its journey to various countries, included in the British
Empire at a time, Bentwich observed :
A British subject takes with him into a new country the common
law of England even before a regular government, or any regular
jurisdiction is set up.
Norman Bentwich, 4< Habeas Corpus in the Empire," 27 L, Q. Rev. 454,
at 460 (1911).

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546 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 12 : 545
the liberty of the individual. It came as a bulwark of personal libert

of English people against the arbitrary imprisonment by the King i
the political life of the nation and queerly enough, though being a
King's writ, yet by accident was turned as an engine against the tyranny
and arbitrary decisions of the King himself. 5
In subsequent years the Parliament, of Great Britain, in order t
make it more effective remedy, reinforced it with many statutes.
It was partly through these statutes and parly by practice, evolved b
common law judges, that it was employed in the service of the peopl
even in spheres other than political, wherever, in general, the questio
of some restraint on personal liberty was involved. 7 Discussing th
nature of restraint which will entitle the petitioner for the writ, a
well as its varied roles, Mr. Justice Miller of the United States Supreme
Court, in Philip S . Wales v. William C. Whitney , observed:8
There is no very satisfactory definition to be found in the adjudged

cases, of the character of restraint or imprisonment suffered by a party
applying for the writ of habeas corpus, which is necessary to sustain the
writ. This can hardly be expected from the variety of restraints for
which it is used to give relief. Confinment under civi1 and criminal
process may be so relieved. Wives restrained by husbands, children
withheld from the proper parent or guardian, persons held under
arbitrary custody by private individuals, as in a mad-house, as well as
those under military control, may all become proper subjects of relief by
the writ of habeas corpus.
Naturally the writ came in the service of the parents and spouses for
obtaining the release of an infant or a spouse where either was bein
detained by some person againt his or her wishes and without the
authority of law. 9 It served the cause of the aggrieved parents an
5. Edward Jenks, op. cit. supra note 1 at 64.

6. Holdsworth, op. cit. supra note 2 at 1 17-122.
7. Id. at 126.
8. 114 U. S. 564, 571 ; also see Kutner, Luis, World Habeas Corpus (Ne
York 1962).
9. Mentioning the significance of Barnardo v. Ford , [1892] A.C. 322, and
the role of the writ of habeas corpus in the field of family law, See a "Not
in 9 L.Q. Rev. 8 (1893) which proceeds :
No doubt the use of the writ as a means of compelling a person who
has unlawfully parted with the custody of child to regain that
custody, or as a means of punishing him for having parted with it,
may be termed novel ; but some of the most admirable portions of
English law have been created by the judges who have known how
to employ old forms for new purposes in obedience to the varying
circumstances of the time, and there is atleast some reason to fear
that the House of Lords have checked an innovation which if
unknown in one sense to the the law was well calculated to give
effect to its spirit, and really to ęnsure that respect for personal
liberty, the securing whereof is the end for which the writ of habeas
corpus exists.

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1970] HABEAS CORPUS IN FAMILY LA W 547
husbands alike in getting the release respectiv

wives with the same zeal, rather more, as it pr
against the might of the state. However, it is a
that while profuse work has been done dealing
field of political imprisonments, there appears
about its role in the field of family law. The p
sible for this may be found in its scarce use i
and the availability of other remedies under t
legislation.10
The petition of habeas corpus by a husband, pr
of the wife, as a normal rule, succeeds where
against her wishes and without any lawful aut
the question of her desire is immaterial wher
case, the fact of mere staying away from the
else, against the former's desire, itself amoun
and will justify the court to issue the writ directi
to hand over the custody of the wife, to the
will issue the writ even in cases where such minor wife herself is a wil-
ling party to stay away. 13 In such a case her consent is immaterial. 1 4
However, in a case where the wife is major and wilfully stays away from
the lawful custody of her husband, the court on a petition to issue the
10. Id. at 8-9. And also,

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 recourse 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.
Per Hidayatullah, J. in Mohd. Ikram Hussainv. State ofU. P., A.I. R. 1964
S. C. 1625 at 1630.
11. R.v. Wiseman, Ex p. Newton, [1805] 2 Smith, K. B. 617.
12. In such a case the alleged restraint may be illegal, either because it
deprives the child of liberty or because it is imposed by one not legally entitled
to the child's custody. Logically, in habeas corpus the latter wrong should be
considered only as it is presumed to affect that former.
"Recent Cases," 20 Harv. L. Rev . 237, 288(1906-07).
13. However this would not apply tocases, where it will not be in the
interest of the wife to direct her to go to the husband, see, Gandikota
Subramaniyam v. Pydimarry Santa, A. I. R. 1967 A. P. 294.
14. Subbaswami Goundan v. Kamaskshi Ammal, A.I. R. 1929 Mad. 834.

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548 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 1 2 : 545
writ of habeas corpus , will refuse the same and the husband may
seek his remedy under any other law. 1 5 The reason for this distinction
lies in the fact that a minor wife is in no better position than a minor
child whose custody can be secured by his parents through this writ.
As in the case of a minor child, who stays away from the custody of the
parents even though with his consent, exactly on the same principle,
a minor wife also cannot stay with someone else although she may be
willing to do so.
The writ is essentially an order of the superior court to set a person
at liberty who is being illegally detained. But in cases under family
law, where this writ is sought for, there is necessarily no allegaton
of the violation of personal liberty and on the contrary they proceed
on the basis of the conflicting claims of the different individuals to retain
the custody of the detained person. When, either a father seeks the
custody of the minor child, or similarly a husband that of a minor
wife, the primary question involved is that of interference with lawful
custody and its restoration to the proper person. But in the case of
either a major child, or a major wife, the usual prayer is for setting the
detained person at liberty and therefore the nature of the order of
the court in such a case varies from that of the minors. 16 In case of
minors the court not merely directs the person, who is detaining such
a minor, to produce him before it and set him at liberty, but also
orders him to restore the custody of the minor to the guardian who has
moved the petition to secure such custody. Of course, at one time,
it has been considered that the direction for custody can also be given
in the case of a major person who is being illegally detained but the
court shall normally be reluctant to use this power, and in case ever
they do so, they will resort to it only in exceptional cases. 1 7 The
general rule and current of decisions do not seem to support this view
and in case of major persons the courts can only pass an order re-
15. The husband may sue the wife for restitution of conjugal rights : The
Hindu Marriage Act of 1955 § 9 ; also the Special Marriage Act of 1954 § 22.
1 6. Only when the child was not sui juris would the court deliver it to
over to its father or to anyone else. Otherwise, the child was merely released
and allowed to go where it pleased....
"Notes : Jurisdiction in Habeas Corpus Proceedings," 14 Harv. L. Rev. 612.
17. However such class of cases may be of those persons who are major
still they need guardianship of someone on account of their incapacity, such as
lunatics and insane persons. However, it was held that in case of a lunatic the
proper remedy lies under the Lunacy Act and remedy by way of habeas corpus
is misconceived, see Hoshang P. Talati v. Emperor , A.I.R. 1936 Sind 156;
Norris v. Seed, [1849] 3 Exch. 782 : 154 E.R. 1061, where a lunatic wife was
taken away from the custody of the husband and on a petition for habeas corpus
by him for the care and custody of his wife, it was held that the defendants were
entitled to detain her under the statutory authority. Semble , that, in such case,
where the wife is really not insane, the husband's remedy is by habeas corpus ,
or by application to the commissioners-

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1970] HABEAS CORPUS IN F AMIL Y LAW 549
quiring the person concerned to set the detenu at lib

alone would be the proper order. 18
A writ shall not lie to direct the wife to go along w
to fulfil her marital obligation, or for that matter, a
refused a writ under the superior claim of her husba
marital obligations when she is being detained by the
her wishes. Law does not confer any superior right
virtue of matrimony over and above the personal libe
By matrimony, no legal system can afford to reduce t
wife to that of a slave. 19
Whatever may be the theory and practice of the writ in these mat-
ters, the practical objectvie, with which the husband seeks the writ,
is not to be lost sight of which invariably is and at all accounts to
have her physical possession or custody as has ben technically termed
by the judges. Apart from the writ of habeas corpus , there are other
modes also to secure custody of the person of wife, such as a suit
for restitution of conjugal rights or a warrant issued by a magistrate
if detantion happens to be an offence under provisions of the Code of
Criminal Procedure, which are often most potent remedies in com-
parison to the writ of habeas corpus and sometimes possibly the
only remedies, particularly against a major wife who on her own
accord has left the roof and without any lawful justification is staying
with somebody else and is not prepared to return to her matrimonial
home. The prayer for a writ in such cases wil be a futile and barren
attempt, rather an ill conceived remedy, since in the true sense of the
term ther is no restraint on the liberty of the wife. In the absence
of restraint on the liberty, a plea is always open to the person who is
keeping her that she is staying with him of her own accord and there
is no restraint on her freedom, and, therefore, there is no case made
out for issuing the writ.
Often proceedings in such cases are contested and the possibility
of asserting a superior right to that of the husband can by no means
be overruled. In a Madras case20 where the husband sought a writ
of habeas corpus against his mother-in-law, who had been detaining
his minor wife on the ground that, the daughter being of tender years,
it would be injurious for her if by cohabitation marriage was consum-
mated, the Court issued the writ. Mr. Justice Rajmannar, who
heard the application, directed the mother-in-law to surrender the
custody, subject to the condition that the minor wife should be de-
tained for one year in some public institution at the expense of the
husband as she was of tender age and it would not be possible to con-
18. Lalmani Devi v. The State , A.I.R. 1957 Pat. 689.

19. The Queen v. Jackson , L.R. [1891] 1 O.B.D. 671.
20. P. Venkataramaniah Chetty v. Pappamah , A.I.R. 1948 Mad. 103.

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550 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol . 1 2 : 545
summate the marriage under such circumstances. The plea of ten

age or a sense of sympathy to keep the detenu in better conditi
of life or any other similar ground is no bar for issuing the wr
A husband has always a better right, than anybody else, to keep
minor wife in custody and every interference with the same wo
invoke the jurisdiction of the court to issue the writ. 21
As husband is entitled to seek the custody of his detained wife,
the basis of the alleged restraint, on similar principle a writ may
against the husband also on the petition of a wife who is being i
treated and harassed by him22 or virtually imprisoning her.23 B
this right of the wife is a qualified right since the husand has a right
her custody in law, and, obviously, wife cannot bring a writ of
hornině repie giando againt the husband;24 and, therefore, where in a
case, a proper and just restriction was placed by husband on the fre-
quent visits of a wife from attending the masked balls unprotected
by his presence and without his permission, it was held that no writ
would lie against the husband in such a case at the instance of the wife. 2 5
In India, writ of habeas corpus has ben frequently resorted to seek
the custody of the mihor children either legitimate or illegitimate, and
it has been issued almost on identical principles as it has been issued
in England in such matters. 2 6 The writ which has travelled from
England, its native place, to this country under the authority of several
charters and statutes. 27 provides itself fascinating study. The
High Courts in India in the real sense received the power to issue this
writ under the authority of the Act 12 of 1923. 2 8 The Act autho-
rized the High Courts to issue the writ of habeas corpus for the re-
21. See contra , Gandikota Subramaniyam v. Pydimary Santa, Supra note 13.
22. Lees Lady Case, [1674] 1 Freem. K.B. 376 : 89 E. R. 280.
23. Rv. Jackson, L.R. [1891] 1 Q.B. 671.
24. Atwood v. Atwood, [1718] Prec. Ch. 492 : 24 E.R. 220 ; also see The
King and Dr. Kewton, [1728] 1 Barn. K.B. 64 : 94 E.R. 44.
25. Re Cochrane, [1840] 8 Dowl. 630 : 4 Jur. 534.
26. Gohar Begum v. Sugg i alias Nazuma Begum and others, [1960] 1 S.C.R.
597, 604.
"Parental Control and Guardianship" by P.H. Pettit in A Century of Family
Law (1857-1957) at 60-63.
27. The Regulating Act, 1773 ; Charter of 1774 ; Madras Supreme Court
Charter, 1891 ; Bombay Supreme Court Charter, 1823 ; High Court Act of
1861 (§ 9) ; Criminal Procedure Code Act of 1872 ; Criminal Procedure code
(Amendment) Acts of 1875 and 1898 ; the Criminal Law (Amendment) Act of
1923 ; Government of India Act, 1915 ( § 106); Government of India Act,
1935 (§ 223) ; Constitution of India, 1950 Articles 32 and 226.
28. The Criminal Law (Amendment) Act (Act No. 12 of 1923), 1923 § 30
(1) (2) amended § 491 of the Code of Criminal Procedure Act, 1898.
For the history of the writ in India, see, Rankin, C.J., in Girindra Nat h
Banerjee v. Birendra Nath Pal, 31 C.W.N. 593, 611 ; Matthen v . District
Magistrate of Trivendrum, A.I.R. 1939 P.C. 213 ; Makhan Singh v. State of
Punjab , A.I.R. 1964 S.C. 381 at 412-413.

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leaze of any person whom they thought was bei

public or private custody without any authority
principles, on which the courts in India have acte
on which the superior common law courts hav
nevertheless, the High Courts in India under th
Procedure do not enjoy the same freedom in the m
diction. A writ can only lie within the limits of
jurisdiction of the High Court concerned and for
section 491. 2 9 No doubt in this respect their po
to that being exercised by the Queen's Bench
division of the High Court of England. 30 How
resulting out of the provisions of the Code of C
which empowered the High Courts to issue the w
for long and when the Constitution came into op
Supreme Court as welt as High Courts were made
the constitutional writ of the habeas corpus for s
liberty in a more effective manner as the Chance
Divisions in England issue the writ in such matters. At one time
it was being considered that in view of the constitutional writ of
habeas corpus the writ contemplated under section 491 of the Code of
Criminal Procedure has become superfluous. 31 But this seems to be
an exaggerated view and probably the better view would be that cons-
titutional remedy has widened the remedy under the statute though
an eclipse of the latter by the former cannot be overruled.32 In prac-
tice, however, the courts usually would not allow the petitioner to
29. The Code of Criminal Procedure (Act No. V of 1898) § 491 :

Power to issue directions of the nature of a Habeas Corpus
(1) Any High Court may, whenever it thinks fit, direct -
(2) that a person within the limits of the appellate criminal
jurisdiction be brought up before the court to be dealt with
according to law ;
(3) that a person illegally or improperly detained in public or
private custody within such limits be set at liberty.
30. The writ of habeas corpus is normally issued by the Queen's Bench
Division of the High Court but in certain matters it may be even issued by the
Chancery Division as both of them enjoy a co-equal jurisdiction after the passing
of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict., c. 66) §25(10),
which enables all division of the High Court to issue such writ. See Re Gold -
sworthy [1876] 2 Q.B.D. 75; Thomasset v. Thomasset , [1894] pro. 295 : 10 T.L.R.
501, per Lord Lindley; In re Hastings (No. 3), [1958] 3 All E.R. 625, In re Hastings
No. 4 [1959] I All E.R. 698; Ram Kumari v. District Magistrate, Delhi , A.I.R.
1966 Punj. 51, 54, 55 56 (F.B.).
31. See, certain observations made by Mohan Singh, J., in Ram Kumar v.
District Magistrate , Delhi, infra note 43 at 54.
32. Per Gajendragadkar, J., as he then was, in Makhan Singh v. State of
Punjab , supra note 28 at 396, 397.

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invoke the writ jurisdiction if an equally efficient and effective remedy

is available under the appropriate law.33
II. Custody - Its Impliaticons34
In a petition of habeas corpus the petitioner normally alleges that

a particular individual is being detained in the custody of X or Y
and such detention is without any authority of law. Usual order
passed by the court therefore is in the nature of the writ of habeas
corpus . Habeas corpus means literally 'have the body' before the
court and let it judge by what authority one is detaining the person
concerned. This is actually the command of the court to the person,
against whom the writ has been issued, to show authority of his cus-
tody by filing the return. If after examining the return, the court is
satisfied that on its face the detention of legal under some provision
of law, it will refuse the writ but where, on the other hand, it concludes
that the detention is illegal on its face and the same is against the
wishes of the person who is so detained, after examining him, it will
order 'to set him at liberty'.
The concluding words employed by the court in setting one at liberty
as well as the prayer made by the petitioner contemplates some sort
of restraint upon the detenu which is illegal. This restraint must
be a physical restraint. Mere restrictions on visitors, who want to
meet the alleged detenu, is not sufficient to constitute 'custody'
which may be said to be illegal. Therefore, in Hazoor Ara Begum v.
Deputy Commissioner , Gonda? 5 where the local collector took the
administration of the estate of the husband of the Rani and allowed
her to stay in the family house but laid restrictions on visitors to seek
prior permission from the local government manager in order to see
Rani, it was held that such restriction was not sufficient to constitute
'illegal custody'. Further, physical restraint may be either total or
partial. In Bholanath Bisandass v. Distt. Magistrate, Jullundur ,36
where two girls, after being rescued by the police, were sent to the
state's rescue home, the state, on the petition of their father, argued
that there was no restraint on their movements except one which had
been imposed in their own interest and, therefore, the writ could not
33. Mohammad Amir Abhasi v. Nasuruddin Ahmed, A.I.R. 1952 M.B. 54;
Mt. Haidri v. J aw ad Ali, A.I.R. 1935 All. 55; Shaik Moidin v. Kunhadevi, infra
note 65; Sultan Singh v. Maya Ram, I.L.R. 52 All. 491 ; Gohar Begum v. Suggi
alias Nazma Begum , supra note 26.
34. Sokol, Ronald P., A Handbook of Federal Habeas Corpus 19
(Charlottesville 1964).
For a fair survey of English cases on custody see, Qasem, Habeas Corpus
(Unpublished thesis in the Library of the Institute of Advanced Legal Studies,
University of London, cited by Sokol, supra note 96 at 19 n. 60.
35. A.I.R. 1934 Oudh 301.
36. A.I.R. 1959 Punj. 236.

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be issued in such a case, It was further contended th

receiving their education and there was no justifica
should be set at liberty. The Court held that under th
it coud not be said that there was no rstraint on thei
writ was refused as the Court concluded that it would not be in the
inte rest of the minor girls to set them at liberty on account of the
loose parental control on the part of the petitioner in his indigent
circumstances, as there was a great danger that the girls again might
be exposed to many moral and physical hazards.
Sometimes words like 'custody' and 'imprisonment' present a
difficulty before the courts particularly when they are to be distinctly
interpreted. In fact these words have often been used as interchange-
able. Both of them deserve to be distinguished but veil is really so
thin that it leaves the courts in great difficulty. Particularly in cases
in which a wife seeks the relief by way of a writ of habeas corpus
against the custody of her own husband, these words assume greater
significance. In a case where the husband detains the wife against
her desire whether it amounts 'imprisonment' entitling the wife
for a writ of habeas corpus , or it is merely 'custody' which in
normal sense a husband is entitled to exercise over the wife under
lex matrimonium, are questions of pure construction. If the facts
of the case are such which exceed the limit of control, normally,
permitted under the law to the husband, then naturally the wife is
entitled to be set at liberty through a writ. Therefore, in a case37
where the husband and wife were living separately and while wife was
coming out of the church on a Sunday morning, the husband with the
help of the clerk of his counsel physically lifted her up and threw
inside the waiting brougham from where she was forcibly brought to
his home and where she remained virtually under the house arrest,
the wife prayed for a writ against the husband and it was allowed.
The plea set forth in the return of the husband was that he was en-
titled to retain the custody of the wife till she restored him the conju-
gal rights. It was held that the husband had earned no right to im-
prison the wife by marrying her and the law of marriage in England
did not give any right to any individual to arrest another and reduce
her to the status of a slave even if she happened to be his wife. The
same holds good in India. By the mare fact of marriage no body is
entitled to keep a person under house arrest. The custody to which
a husband is entitled to is a reasonable custody allowed under the law,
and any sort of arbitrary detention on the part of the husband is
always negatived from its concept. Of course, there are occasions
37. The Queen v. Jackson , [1891] L.R. 1 Q.B.D. 671.

38. Atwoodw. Atwood, [1718] Prec. Ch. 492 : 24 E.R. 220 ; The King and
Dr. Newton , [1728] 1 Barn., K.B. 64 : 94 E.R. 44 (adulterous correspondence).

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554 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 1 2 : 545
where husband is entitled to exercise a greater control38 than exercis-

able in normal circumstances, keeping in mind all the attending
circumstances39. Thus where a wife on the staircase is ready to
elope with her parmour to commit adultery, law will alow the husband
even virtually to overpower her and force her to stay in the house
as a preventive measure. Every case is to be judged on its own
merits; and, in fact, the word custody in such cases is to be narrowly
interpreted.
III. Disputed Facts and the Practice in Issuing the Writ
Practice, in matter of issuing the writ of habeas corpus in India in

such cases where the facts are disputed and need evidence before the
petition may be disposed of, is not distinguishable from those where
the facts are not in dispute,40 and which, by and large, do not need
to be proved by resorting to additional evidence and admission and
denial made through affiadavits and counter-affidavits. Since the
writ, or any direction in the nature of the writ, has been devised in
the Constitution as an expedient remedy to set the person in restraint
at liberty and specially to deal with cases of arbitrary imprisonment
involving the liberty of individuals, therefore, the propriety of such
proceedings could be questioned as the practice in writ proceedings
tends to reduce it virtually into an ordinary process usually employed
in ordinary form of civil ilitigation. However the best account of
overlooking to this objection seems in the necessity to establish the
alleged facts before the court may conclude that a proper case has
been made out, on its fact, to allow the writ.
In England the judges were empowered to question the statement
made in the return for a long time. It was in the year of 1758 that a
bill was introduced in the House of Lords to provide for the ascertain-
ment of facts of the case. The object of the bill was to improve the
writ as Habeas Corpus ad Subjiciendum so that it may be available to
a person held other than on a criminal charge. However, the bill did
not find favour and ultimately the judges mitigated the harshness by
making ita practice that the case may be heard even on merits41 and
an appeal against such orders may lie in the civil cases to the Court
39. Re Cochrane , [1840] 8 Dowl. 630 : 4 Jur. 534.

40. 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....
Per Hidayatullah, J., as he then was, in Moh. Ikram Hussain v. The State of
Ut tar Pradesh , supra note 10 at 1632.
41. Holdsworth, op. cit. supra note 2 at 124.

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of Appeals and further to the House of Lords. 4 2 Pr

not much different from that followed by the E
matters relating to the issue of this writ. In India wher
by a High Court an appeal lies to the Supreme Cour
jurisdiction, civil as well as criminal.43
Usual cases, which are placed before the courts, are of
that there is no dispute about the alleged relationsh
petitioner and the person whose custody he claims th
But sometimes the very fact of such a relationship
and under these circumstances the task of the court becomes heavier
than usual as it involves the fact finding mission before the petition
may be allowed. In the latter type of cases a tussle between two
divergent claimants is also not unusual like many custody cases re-
lating to infants. Actually in these cases the facts are still to be
established on the basis of the evidence adduced by the parties and
also by examining the detenu in person. Obviously such kind of cases
are much more difficult and cumbersome to be disposed of in a writ
petition.44 However, the only safer remedy in cases appears to be the
writ of habeas cor pus 45 on account of many odds and technicalities
42. Cox v. Hakes , [1890] 15 A.C. at 535, 536, where Lord Herschell left
open this point which was later on settled in the Secretary of State for Home
Affairs v. O' Brien , [1923] 2 K.B. 361 ; [1923] A.C. 603 at 610, per Lord
Birkenhead. But such appeals would not lie if the petition involves a criminal
matter and Lord Birkenhad's dictum in Secretary of State for Home Affairs v.
O'Brien would not apply to such petitions. The position is concluded by the
decision of the House of Lords in Ex p. Amand, [1943] A.C. 147 ; see also
Lord Goddard "A Note on Habeas Corpus ," 65 L.Q . Rev. 30, at 31 (1949).
43. Ind. c0nst. arts. 132, 133, 134 & 136. See also, Agarwal, Rajendra
Saran, "The Writ of Habeas Corpus in Indian Constitution," 61 All. L. Jour. 4
at 6 (1963). Also, Ram Kumar v. District Magistrate , Delhi, A.I.R. 1966 Punj.
51 at 56, 57.
44. In Jai D ay al Dhingra v. Mt. Sohagan , A.I.R. 1934 Lah. 647, a case
under § 491 of the Code of Criminal Procedure, where the facts of conversion
and marriage were disputed, Monroe J., who heard the case, observed :
A satisfactory decision of this case involves deciding two important
questions of fact, whether Mt. Saddan was converted from
Mohammadanism to Hinduism and whether she is now the wife of
the applicant. It is, in my opinion, not proper that such questions
involving status should be summarily decided in an application of
this kind if it can be avoided....
However, in view of the observations made by Hidayatullah, J., in Mohd.
Ikram Hussain v. The State of Uttar Pradesh , supra note 10 at 1632, it cannot
be said that the facts, though in dispute, cannot be disposed of in a writ petition
in such cases.
45. There is no doubt that the court will examine the facts of the case
before allowing ihe writ still it appears to be curious how the remedy by way
of habeas corpus should not be taken to be safer, as Hidayatulla, J., expressed
in Mohd. Ikram Hussain v. The State of Uttar Pradesh , supra note 26 at 1630.
With great respect it is submitted, that in a writ of habeas corpus , the enthusiast

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556 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 1 2 : 545
involved in some other equally effective remedies. For example,

where the purpose of the writ is only to change the custody from one
person to another, in such case person has got better chance to
succeed in obtaining a writ rather than suing for the restitution
of conjugal rights, where he will be faced with the difficulty of es-
tablishing the relationship of husband and wife. For a writ of
habeas corpus even an enthusiast may petition on behalf of the detained
woman as her next friend. The main weakness of this case would be
that actually there exists no relationship of wife and husband bet-
ween the petitioner and the detined woman and no doubt in the
absence of the relationship, the interpolation of the fictions of marriage,
majority and conversion often become a matter of formal necessity.
Supreme Court of India, in one of its opinions, has categorically
stated that while issuing the writ of habeas corpus under article 32, or
even dealing the matter under its appellate jurisdiction, it has got
a power to go into the details and make a full and complete inquiry into
the alleged facts of the case before the writ may be issued. In Mohd.
Ikram Hussain v. The State of Uttar Pradesh 16 the case came before it
in appeal against the two orders, passed on the different dates, by the
High Court of Allahabad where the Court had allowed the rule nisi.
In this case a youngman prayed before the High Court that one Kaniz
Fatima, who was a major girl and had embraced Hinduism and was
married to him, was being illegally detained by her father against her
will and that she might be set at liberty by allowing his petition for
the writ of habeas corns. The facts, as reported, were that Kaniz
Fatima was a student of Hamidia Girl's Inter College of Allahabad.
She appeared in the High school Examination of 1959 but was unsuc-
cessful. Result appeared on 17 June 1960 and she disappeared from
her home on 20 June 1960. She at that time was of fifteen years of
age. It appears that as a result of despondency on her part due to the
failure in the examination she left her home and while she was pro-
ceeding to her aunt's house on foot in the cover of darkness she
lost her way and met Mahesh, the petitioner. Mahesh offered his
services to show her the way and with this pretext he took her to his
home where she was criminally assaulted by him. On a report made
by her father to the police about her disappearance, she was recovered
from the house of Mahesh and restored to the custody of the father and
may always find better bonus than proceeding either under § 100 of the Code
of Criminal Procedure or even in suing for restitution for conjugal rights, where
the fiction of marriage will have always to be interpolated in order to show the
alleged relationship of husband and wife before the applicant may succeed.
However, he is on safer side to pray for the writ to seek the release of the
detenu, particularly in a case where she (the detenu) is major and is a consenting
party to stay with the petitioner.
46. Supra note 10. Hereinafter referred to as Mohd. Ikram Hussain only.

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1970] HABEAS CORPUS IN FAMIL Y LAW 557
a case against Mahesh for abduction and rape was

police based on her statement made to them. Ho
did not proceed with the case. The story made out
that Kaniz Fatima was a major girl who had embra
had been christened with a new name "Sheela" and had married to
him according to Hindu rites in the presence of the respectable mem-
bers of the locality.
It was under this background of alleged conversion and marriage,
Mahesh brought a writ petition before the High Court praying for
the writ to set Kaniz Fatima released from the custody of her ather
where she was being allegedly detained. In the proceedings, father
made a return controverting above facts of the alleged conversion,
marriage and majority; and in addition to that, stated that she had
again disappeared a second time as she was quite worried about all
that what had happened already, and therefore, it was virtually im-
possible for him to produce her before the Court as directed by it.
Further, he alleged that Mahesh was already married to a Hindu
lady, which was later on denied by Mahesh in his counter-affidavit,
and where he stated that he was divorced her according to the customs
of the caste.
When the father of the girl could not produce Kaniz Fatima before
the Court, the learned Jusdges of the High Court committed him for the
contempt of the court for a term of three months and rejected the plea
set forward in the return. Being aggrieved, the appellant came in
appeal to the Supreme Court against both these orders.
The law relating to habeas corpus requires on the part of the per-
son who is detaining any person to file a return47 to the writ showing
cause and stating all the circumstances and authority by which he is
detaining that person, and also to produce the body of the detained
person for the personal examination of the court so it may dispose it
of in accordance with law. This duty to produce the body of the
detained person, on the part of the person against whom writ has
been directed, is almost absolute except in cases where the person
against whom writ is issued has got no control over the detained
person and it is only then that he is absolved from the obligation
of producing him before the court. But it does not absolve him from
obligation where he has failed to take all necessary steps to prevent
the detained person either from fleeing or where he himself has trans-
47. At one time it was laid down by the Supreme Court that such return
may be accompanied by an affidavit or not, depending on the question whether
the facts of the case need an examination by the Court, see, Ranjit Singh v.
State of Pep su i A.I.R. 1959 S.C. 843.
But in view of the Supreme Court Rules, 1966, this case seems to be no
longer authority on this point, as from March 1, 1966, each such return must
be accompanied by an affidavit. See Supreme Court Rules, pt. IV, or 35, r. 3.

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ferred him beyond the jurisdiction of the court which has demanded
the production of the body of the detenu or has filed an evasive
return48 and also in cases where he is trying to avoid the production of
the body of the person named in the writ with some ulterior motive
with a view to disobey the order of the court, and, therefore, where
court finds him guilty under any of these circumstances it has got a
power, which is of course inherent in the court, to commit him for
its contempt. Referring to the circumstances, which led the High Court
to commit the appellant for its contempt in this case, Mr. Justice
Hidayatullah, as he then was, observed:
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 wilfully and deliberately disobeying the
direction of the Court. 4 *
Dealing with the validity of the order to issue the writ in nisi by
the High Court he examined the nature of the writ as such in these
matters and further observed:
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 prima
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. 6 0
The learned Judge after going into the merits of the case, reached the
conclusion that in case the High Court would have looked prima facie
to the petition filed by the alleged husband then the girl being minor
and father her proper guardian, and in the absence of any clear proof
of her marriage with the petitioner, it was not justified in issuing the
48. If a return on its face is evasive and ambiguous and in not fortified
by affidavit clearing up all doubts, it will be bad : R. v. Roberts, [1860] 2 F.
andF. 272. For sufficiency of the writ see. Re. Smart. Infants, [1886] 11
P.R. (Ontario Practice) 482.
49. Supra note 10 at 1629.
50. Id. at 1631. Emphasis added. The words "at least prime facie" are
of great value, and, if correctly understood definitely do not refer to "full
and complete inquiry". Even r. 4 of the Supreme Court Rules, 1966, lays
down "that a prima facie case for granting the petition is made out. A rule
nisi shall issue...." See, Supreme Court Rules, 1966, pt. IV, or. 35 r. 4.

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writ in nisi requiring her production before it; and

the order of the High Court. But at the same tim
interfere with the other order of the High Court, by wh
lant was convicted for committing the contempt of t
for deliberate and wilful refusal to produce the girl b
High Court has the inherent power to punish for
These orders and the opinion of Mr. Justice Hidayat
suffer from logical inconsistency, both the orders of
are so much closely connected with each other that a
one, the other cannot stand, and one follows the oth
causal manner. Seemingly, inevitable inconsistency m
by not overlooking the simple fact that the High Cou
appellant for its contempt under its inherent powers
the order of the High Court being within its inhere
beyond the reach of the Supreme Court. This was in
case but after all it was justice according to law and p
its chief demerits.
Now so far as it relates to the disputed facts and th
the body of the so called detenu in such cases, the En
very clear. It insists on a prima facie inquiry into the
ship between the detenu and the petitoner and then
sary order. The difficulty is often caused in making
Tuli inquiry' or only a ť prima facie ' inquiry is need
petitions for their proper disposal, and English pract
is a valuable guide to other jurisdictions also. Normall
that writ of habeas corpus is not the proper recourse
of such diputes relating to the custody of the detenu, pa
the disputed relationship cannot be establihsed except goi
details of evidence. If prima facie inquiry is the test,
be said that a detailed inquiry must be made before i
In case a rule has been issued, and if body of the dete
duced, the proper order will be to set the detenu fr
under restraint rather than directing with whom the de
Unfortunately some of the English decisions, which
and probably of great value, could not be cited at th
Ikram Hussain case, 5 1 and which are in a position to th
on English practice. To refer Rex v. Clark son, 5 2 wh
was a marriageable young lady who lived with her gua
claimed her as his wife. She denied the marriage. Th
not try the marriage simply by affiddavit and, therefore,
her to the man as her husband without allowing
She in fact chose to remain with her guardian and w
51. Supra note 10.

52. Mrs. Turbeville's Case ( Rex v. Clarkson et Al.), I Sir J.S, 444, in Trin,
7 G 1.

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learnt "that the man had a design to seize her," it sent a tipstaff home
with her, to protect her.
With almost identical facts Rex v. James Clarke 53 was presented
before Lord Mansfield in 1758, in which one Lydia Henrietta Clarke,
a young girl of 22 years of age, ran away from the house of her father
with a box and bundle containing several sorts of wearing apparel
and some money along with her lover who was a former foot-boy
of the father of the girl. She was found at Broad Stairs in the Isle of
Thanet by her fahter's nephew who pursuaded her to return home and
give up the idea of marrying with a person much inferior to her status.
She after listening to the advice and after careful pursuation of her
father started living again with the latter. On this, James Mervin,
the young lover of the girl, brought a petition praying for a writ of
habeas corpus for the release of his alleged fiance; and, according
to the report, he made out a very plausible case, fully sufficient to
obtain the writ and which was never alleged to be false by the counsel
of the opposite party. Merely on the affidavit of Mervin, the writ
was issued and she was set at liberty. 54
Similarly in another case 5 5 petition was made by the father of one
Anne Catley, a female infant, then about fifteen years of age. She was
bound apparentice by her father to the defendant Bates, a music-master.
She became eminent for vocal music; and there by gained a great profit
to her master Bates. During her apparenticeship, at the age of about
seventeen years, she was debauched by Sir Francis Delaval while she
resided in the house of Bates' father - Bates himself was a single man
and had no house-keeper. Bates later assigned her indirectly to Sir
53. 97 E.R. 471.

54. Lord Mansfield put the question to the young lady when she was
presented before him - "Whether she desired to continue with her father, or to
go elsewhere;" to which she replied - "To continue with her father." Upon
this the court told her she was at liberty to go and which she did. Proceedings
indicate that the father of the girl, who was much agitated, wanted to sue
Mervin, the boy-friend of the girl, for prejury and the court approved of it.
However, in view of this decision any insistence on the part of the court to
compel the petitioner to prove the facts alleged in the affidavit seem to be
unwarranted, and to this extent, the judgment of Hidayatullah J., quashing the
order for the production of the body of the girl by Allahabad High Court, is
questionable. Writ being an expedient remedy, as a matter of fact, should be
allowed on the basis of facts alleged in the affidavit and counter-affidavit, and
if the facts alleged there in are false, the person so stating may be prosecuted
for prejury.
55. Rex v. De l va 1 , 3 Burr. 1434 : 97 E.R. 913 ; also see, Rex v. Clarkson
I Sir J.S. 444 in Trin. 7 G. 1 (infant being of marriageable age) ; Rex v. Mary
Johnson , I Sir J.S. 597 and 2 Ld. Raym. 1334 in Hil. 10 G.I.B.R. (Custody of
nine or ten years old girl) and James Smith's case {Rex v. Penelope Smith , 2
Sir J.S. 982 in Tarin. 7, 8 G. 2 B.R. (Custody of about 14 years infant which
was not allowed to father as the court thought that he entertained bad designs
in securing custody).

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1960] HABEAS CORPUS IN FAMILY LAW 561
Francis, as much as it was in his power to assign

was done plainly and manifestly for bad purpose.
went and lived notoriously as the kept mistress o
it appears that she was not being properly receive
her father, though in fact her mother knew about
between her daughter and Sir Francis Delval. W
neglecting the work of Bates he gave no notice of
except that she had been seen riding in the park at
of Sir Francis Delval. On the receipt of an informatio
had joined in an unlawful combination and conspir
girl out of the hands of Bates to whom she was bo
by her father without the knowledge and informa
her father and to place her in the hands of Sir Fr
purpose of prostitution, Lord Mansfield enlarged
opportunity to father and mother to give an answe
ing the writ of habeas corpus and after discussin
Anne's time, he remarked:
The true rule is, That the Courts are to Judge upon the
of the particular case; and to give their direction accord
In the present case, there is no reason for the Court to
her father. She was sworn to have received ill usage fro
she was at all put out apprentice; and whilst she was
master, it appears that her father seldom or ever came ne
gave her either advice or reprimand. It is ever suspicio
father and mother were not parties to the conspiracy; a
father does not carry on this prosecution in hopes of e
from the defendants.
Let the girl therefore be discharged from all restraint, and be at liberty
to go where she will. And whoever shall offer to meddle with her
redeundo, let them take notice that they do it at their peril.6*
An analysis of these decisions remarkably shows that relationships

of detenu with the contending parties in a writ petition is merely a
means to an end, namely, securing the liberty of the individual
who is allegedly under restraint; and quite naturally, much emphasis
cannot be given in making a "complete and full inquiry" into the
alleged relationship since that is not the objective of the writ. There-
fore, once the court is satisfied that there is prima facie some truth in
the facts alleged in the petition, it will be competent to issue the rule.
Again, courts must not sit to decide in such petitions as to who is the
better guardian in a particular case, but on the contrary, if they are
satisfied that a proper case has been made out and the alleged res-
traint exists on the movement of the detenu, they must set him
at liberty since essentially speaking it involves the question of the
personal liberty of the individual cocerned.
56. Rex v. Delval , supra note 55 at 914.

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IV. Custody of Children
Parents, as a matter of right, are entitled to exercise physical c

trol over their minor children and if someone interferes with their
custody, they are entitled to seek proper recourse to law. There
are two modes by which a parent can exercise control and seek
restoration of physical custody of the child; one, by suing under the
provisions of the Guardians and Wards Act, 5 7 1890 or any other law, 58
and second, by seeking a writ of habeas corpus for setting at liberty
the child who is being detained against the wishes of the guardian.
These modes from time to timehave been employed to realize the paren-
tal authority, not only against the unlawful detention by the third
party, but also for contesting the right of custody between the parents
themselves. In the field of family law the custody of children has
been treated as an important aspect, and therefore, it was quite natural
that the statutes would have come into existence to meet out this
requirement. Here at present we are concerned only with the seeking
of the custody of a child either by a parent or a guardian through an
extra-ordinary remedy which has developed in the nature of the
writ of habeas corpus.
A. Conflicting Rights of Custody and the Writ

It is abundantly clear that proceedings under section 491 of the Code
of Criminal Procedure and article 226 of the Constitution are not
intended for determining the respective rights of the rival claimants
as this will involve a long array of pieces of evidence in support of their
respective claim which naturally cannot be disposed of in a writ
petition. The nature of the writ proceedings is such that it will be sin-
gularly inappropriate to settle the contentious issues of facts in a peti-
tion of habeas corpus. Instead, the rival claims of the opposite parties
can be settled under the appropriate law. 5 9 Since the writ does not
lie to settle the rival claims of the parties who are seeking the custody, 60
it cannot be allowed merely to change the custody of person from one
keeper to another. 6 1 Therefore, where the question arises who is the
real guardian legally entitled fo^ the custody of the child, the court
shall direct to seek remedy under ordinary law of guardianship since
the prayer in such a case is not to set the child at liberty but for assert-
ing the rights of the two contenders. The remedy of habeas corpus
57. The Guardians and Wards Act of 1890 § 25.

58. Such as the Hindu Miniority and Guardianship Act, 1956.
59. The Guardians and Wards Act of 1890 §§ 7 & 8.
60. M. Basavalingam v. M. Sivaragyalakshmi, A.I.R. 1957 A.P. 704, 795.
Although there is no denial that the writ of habeas corpus may be used to
determine the question of right to custody of the minor; Francis Sheeshy v. Marie
Sheeshy , 107 A.L.R. 635, at 639, 640 : (N.H.- 186 A.I.).
61. Re Ah G way, Ex parte Chin Su, [1893] 2 British Columbia Reports 343.

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1970] HABEAS CORPUS IN FAMIL Y LAW 563
of course, in certain cases is discretionary except w

the violation of some fundamental right of the pet
is well settled, is: where a parent or a husband appli
of either a minor child or a minor wife he is entitled fo
any proof of the alleged restraint.62 The very f
infant or wife is being detained away from the pa
is sufficient to constitute the detention unlawful. Courts will natu-
rally take ino account the right of the parent even in those cases
where the minor child is willing to stay in such custody and they will
not hesitate in issuing the writ. 63 Of course, the court while allow-
ing the writ shall act on a number of considerations and to name the
most important happens to be the welfare of the minor. 64 This wel-
fare element is the yardstick in allowing or refusing the writ and is not
free from the play of the subjective element of the court. 65 Therefore,
in those cases where the court was of the view that if the writ was al-
lowed the young girls might be exposed to physical and moral dangers
on account of the loose parental control upon them by the peti-
tioners,66 or on account of the tender âge it will not be proper to allow
the custody of the minor wife to her husband,67 it has refused the prayer
62. But it will refuse the writ when it concludes that the custody is with
the proper Person : P. A. Paul v. C. Hunt and another , A.I.R. 1927 Rangoon
329 ; Ex parte M' Clellan , [1831] I Dow. 81 (K.B).
63. Writ even may be issued where the minor is willing party : R . v.
Howes , Ex Parte Parford, 3 E. & E. 121 E.R. 467; Mallinson v. Mallinson , L.R.
1866 1.P. and D. 221 ; In the matter of Mary Ellen Andrews , L.R. [1873] 8 Q.B. 153.
64. Pollard v . Rouse , [1910] 6 Ind. Cas. 754, 756; Saraswathi Ammal v.
Dhanokoti Ammal , I.L.R. (1924) 48 Mad. 229; Bholanath Bisan Dass v. District
Magistrate , Jullunder, A.I.R. 1959 Punj. 23 ,239; Zara Bibi v. Abdul Razzak
Nakshbandi , [1910] 8 Ind. Cas. 618; 620; Thomasset v. Thomasset , supra , note
55 (father refused custody of 9 year boy against his maternal grandfather); R.
v. G y ngal I ,ll$93] 2 Q.B. 232 (mother though not guilty of any misconduct still
she may be refused the custody of her fifteen years minor daughter) ; Re Mathieson
[1918] 87 L.J. Ch. 445; Re Carrol [1931] I K.B. 317; Mc Canliss v. Mc Canliss ,
82 A. L.R. 1141, 1144, per Cardozo J., 255 NY 456; Buchanan v. Buchanan , 116
A.L.R. 688, 170 Va-458.
65. The term "welfare" has been interpreted quite broadly, see :
Again the term 'welfare' in this connection must be read in the
largest possible sense, that is to say, as meaning that every circum-
stances must be taken into account and the court must do what
under the circumstances a wise parent acting for the true interests of
the child would or ought to do.
Per Wallis J., in Pollard v. Rouse , supra note 64 at 757. Also see observa-
tion made in, Shaik Moldin v. Kunhadevi, A.I.R. 1929 Mad. 33: Bholanath Bisan
Dass v. District Magistrate, Jullundur , supra note 64 ; Gopal Ji v. Shree Chand,
A.I.R 1955 All, 28; Gohar Begum v. Sugg i Alias Nazma Begum, supra note 26.
Alan M. Oster : "Custody Proceedings : A study of Vague and Indefinite
Standards," 5 Journal of Family Law 21 (1965).
66. Bholanath Bisan Dass v. The District Magistrate Jullundur , supra note
64 at 238, 239.
67. P. Venkataramaniah Chetty v. Pappamah9 A. I. R. 1948 Mad. 103.

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of the petitioners to hand over the custody of the minors. On the

contrary where the court concluded that the girl who was major and
desired to go with the man of her choice and whom she has allegedly
married, the mere fact that there is a possible apprehension of breach of
peace will not deter the court from allowing the writ and ordering
to set her at liberty. She, being major, was the alone judge as to
where she would like to go. 68 In cases of the infants, if the detenu is a
boy below fourteen years of age and if a girl, below sixteen years, the
English courts form their own independent opinion with respect to
the welfare of the child without ascertaining his or her opinion. 69
These age-limits are the barriers of discretion beyond which the
courts shall try to find out the desires of the minor before surrendering
the custody to the petitioner. The courts in fact, take due notice of
the age of the minor. 70 and in cases where they are able to decide for
themselves or where it is proved that the detenu is major, the court will
set him at liberty to go wherever he pleases without directing any
further. 7 1
The age of discretion of India, on the basis of some English deci-

sions, was taken into account in earlier cases 7 2 but it seems that the
courts have given it up in subsequent decisions. 73 On the safe side the
Indian courts now recognize the age of majority as the age of discre-
tion and feel that even in such matters the minors above fourteen and
sixteen, respectively being boy and girl, are incapable of forming any
independent opinion with respect to their welfare and it will be,
therefore, unnecessary to ascertain their views Vhile issuing the writ.
However, in case of an illegitimate child courts exercise still wider
discretion and the sole test, which they apply is, what is the best in the
circumstances in the interest of the child.
B. Persons Entitled for the Writ

In cases involving the liberty of the infants it is the right of parents
or guardians to bring a petition claiming the custody of such an
68. Lai Iman i Devi v. The State , supra note 18; Rex v. Deival, supra
note 55.
69. Reg . v. Howe , 330 E. 332 ; E. & L.J. (M.C.) 47 ; Cartlidge v. Cartlidge ,
2 Sw. and Tr. 567 : 31 L.J. (P. and M.). 85; Mallinson v. Mallinson, supra note
63 : In re Agar-Ellis , L.R. [1883] 24 Ch.D. 317.
70. But age is not the sole criterion to issue or refuse a writ, since welfare
and necessity of minor will over-ride, the consideration based on the ground of
age. Probabely Correct rule will be the maturity of understanding and the
ability of detenu to make decisions for himself, in such cases. See, Gandikota
Subramaniyam v. Pydimarry Santa , supra note 13.
71. Rex v. Deival, supra note 55.
72. Pollard v. Rouse, supra note 64 at 757, per Wallis, J.
73. Saraswathi Ammal. v, Dhanakoti Ammal, I. L. R. (1924) 48 Mad. 299.
302-308, per Venkata Subba Rao, J.

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infant. 74 However, this is not an absolute rule. It is not neces-

sary that the person seeking writ must have some kind of interest
in the minor. 75 Even strangers are entitled to pray for a writ as
the next friend of either minor child or a minor wife. In fact law
sets no limit to the classes of persons who can apply for the writ under
section 491 of the Code.76 Normal practice in cases of minors, where
they are being detained against the wishes of their guardians, is to
allow the writ on the petition of such guardian; and, therefore, where a
Muslim Shia lady, who was having a child of four years and same
was being detained by her former husband, was held to be entitled
to the custody of the minor by applying for a writ. 7 7 Similarly in
another case78 the writ was allowed to a mother who sought the cus-
tody of her minor child even against the custody of the executor of
her former husband whom she had already divorced. The chain
of decisions shows a constant practice that the writ has been issued
frequently at the instance of the mothers, 7 9 fathers 8 0 and husbands 8 1
to seek the releaze of their wards, but it does not mean that any other
person is legally prevented from applying for a writ to seek the release
of the minor irrespective of the fact that he may not be having any
interest in him. '
C. Illegitimate Children
Where an illegitimate child is under detention, on the com
either by him or on his behalf by some other person as his next
74. The writ of habeas corpus is the proper remedy, as recognized b

and jurisprudence, of a parent who wishes to regain possession of
alleged to illegally kept and detained from him : Dugal v. Lejebyr
S.C.R. 501 : [1934] 4 D.L.R. 552 : Stevenson v. Florant 1925 S.C.R. 532
4 D.L.R. 530. However, it is not necessary that the applicant in child
cases must have made a previous demand to the opposite party ¡before
for the writ : Ex parte Diedrich Witte 1953 13 C. B. 680 : 138 E. R. 136
75. Pollard v. Rouse , supra note 77.
76. Alam Khan v. Emperor , A.I.R. 1948 Lah. 33(F.B.).
77. Haidri Begum v. Jawad Ali, supra note 87.
78. Sherbanoo v. Ajabai , (1909) 1 Ind. Cas. 309 : (1909) 11 Bom. L
79. R. v. Clarke , Re Race , [1857] 7 E. & B. 186 : 119 E.R. 1217 ; H
Hyde, [1859] 29 L.J.P.M. & A. 150; Ex pare Turner , [1872] 41 L.J.Q.B. 1
was refused to the mother); Re U lie, Nawab Nazim of Bengal Infants ,
L.J.Q.B. 176; 19 Tas. L. R. 11 (Australia) (child entrusted to the cust
a nurse when parents were poor and were having no home of their ow
entiled for the custody of the infant to whom they committed to the cu
such hospital nurse a few years back); Kivenko v. Vagod , [1928] 4 D.L.
1928] S.C.R. 421 (minor child with uncle father claimed custody of ch
such uncle of the child). Bhagwati Bai v. YadavKrishna Awadhiya , A.I.
M.P. 23 (custody of minor children was claimed by the mother against
80. The King v. Ward, [1762] 1 W. Bl. 386 : 96 E.R. 218; R. v. P
[1820] 4 Moore, C.P. 366. M. Basavalingam v. Swarajyalakshmi, A. I.
A.P. 704.
81. P. Venkataramaniah Chetty v. Pappamah, A.I.R. 1948 Mad. 103.

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the court will issue the writ of habeas corpus to set him at liberty and a
low him to go wherever he likes. But in case of an illegitimate child
who is a minor, the mother is the legal guardian82 and if anyothe
person interferes with her right and retains the custody of suc
child, even though prompted by laudable motives, must make over th
child to the mother on a complaint under section 491 of the Code
of Criminal Procedure or a petiton made under Article 226 of the
constitution. In all such cases the questions relating to the paternity
the child or the disreputed life of the mother are no defences in order t
justify the custody of the child. Therefore, in a case83 where a
unmarried muslim lady lived as the mistress of a Hindu male and by
such union the children were born, including one the question of whose
custody was involved in the case, it was held by the Supreme Cour
that the mother alone is the guardian in the case of illegitimate chil
ren who are minors and is entitled to seek the custody by way of a writ
of habeas corpus irrespctive of the fact that the life which she led
was one of ill-repute and the paternity of the child was uncertain
Speaking about the nature of the right which the mother of an illeg
timate child has over such a child Mr. Justice Sarkar, as he then wa
observed :
Under the Mohammadan law which applies to this case, the appellant
is entitled to the custody of Anjuman who is her illegitimate daughter,
no matter who the father of Anjuman is. The respondent has no legal
right whatsoever to the custody of the child. Her refusal to make over
the child to the appellant therefore resulted in an illegal detention of
the child within the meaning òf s. 491. 84
No doubt the mother is entitled to retain the custody of illegitimate

child against everybody, including against the putative father, but this
writ will not be employed in disguise to screen the decision of the com-
petent court which has already disposed of the question relating t
the custody of such a child. If court concludes that the detention
with the other party is not illegal it will refuse the writ to the mother
since the jurisdiction to issue writ is itself based on illegal detentio
Consequently, in a case85 where a Hindu woman lived as mistress o
another Hindu and out of this union they begot a male baby, the que
tion of whose custody was already decided by the court in favour of the
putative father, the prayer of the mother to issue the writ of habe
corpus was turned down on the simple reason that proceedings und
section 491 cannot be invoked when already a final decision relatin
to custody of such child has been reached by a court of competen
jurisdiction.
82. James, Thomas E.. Child Law 36-38 (1962).

83. Gohar Begum v. Suggi alias Nagma Begum, supra note 26.
84. Id. at 601.
85. Subbarathnammal v. Sheshachalam Naidu, A.I.R. 1931 Mad. 773.

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Formerly under common law neither the putativ

mother was eligible to seek the custody of the illeg
it appears that the general rule was a bit softened and
authority of the mother in such cases over that of
was recognized on the simple logic of her wish
child. 87 In England after the passing of the Legiti
the putative father has been made equally competen
custody of his illegitimate children as the mother.
applications of the putative fathers seeking custo
culty has been experienced on more than one occa
absence of all his rights except his affinity with
through blood.88 His locus standi is of a very w
makes his chances very slender to obtain custod
nature of his relationship with the child, in 4 In re
Denning, M.R., observed:
The natural father is not in the same position as a legit

He is a person who is entitled to special consideration
blood, but not to any greater or other right. His fatherho
to which regard should be paid in seeing what is best in
of the child; but it is not an overriding consideration.90
V. Writ - Personal Liberty and Conservatism of the

Supreme Court
In India the Constitution guarantees to everyone the liberty of his
86. Re Lloyd, [1841J 3 M. & G. 54, R. v. Hopkins, [1806J 7 East 579.

87. See, Lord Herschell m Barnard v. McHugh , [1891] A. C. 388, 399.
88. " Custody and the Putative Father " 335 The Law Times 705. (1964)
89. [1964] 1 All E.R. 786 (C.A.).
90. Id. at 788-89. Distinguishing such cases from those of legitimate children
and negativing the consideration of child welfare, Lord Evershed, M. R., in Re
G . (an infant ), [1956] 2 All E.R. 876, 879, observed.
At the same time, however, it is not to be forgotton that the position
of the so-called putative father under our law is widely different from
the position of the father of a child born in lawful wedlock, as was
pointed out by this court in Re M. (an infant) (1) [1955] 2 All E.R.
911 ; and it may be stated broadly (and accurately too, I think) that
in the case of an illegitimate child the limit of the obligation of the
father will be to make financial provision for the child in order to
relieve other people, and particularly the general public, of such
obligation. The father has no such obligation to bring up the child
as has a lawful father. The only parent in that respect which the
law regards as responsible for the child is the mother. That being so.
I think that the view which the courts generally take in regard to the
interests of a child of lawful wedlock, viz., that it is in the child's
interests to know both Parents, is not at any rate by any means
necessarily applicable in the case of an illegitimate child.
Also see, In re Agar-Ellis , L.R. [1883] 24 Ch. D. 317 (C.A.); Webb, P.R.H.
and Bevan, H.K., Sourcebook of Family Law 395-400 (1964).

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568 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 1 2 : 545
person as inviolable fundamental right;91 and the same may, if inter-

fered with, be secured by praying for a writ of habeas corpus. The
Constitution provides for the remedial measure at two different places,
namely, in article 32 and article 226. In allowing the writ in such cases
the High Courts do not find any difficulty where as the Supreme Court,
in Smt. Vidya Verma v. Dr. Shiv Narain Verma 92, found it difficult to
allow the writ in a case where a woman was being allegadly detained in
the hands of a private person. The Court was categorically of the
view that a writ for securing personal liberty can only be issued under
article 32 when the alleged detention was by the state; and the reason
for this conclusion appears to be that the right of personal liberty under
article 21 of the Constitution, which is undoubtedly substantive, is
only available against state action and not against private action. Al-
most a decade and half have passed, and the judgment has neither
received any public attention, nor the text-book writers93 have ques-
tioned its propriety and authority, nor even for that matter, it has
evoked any interest among the Constitutional law students. How-
ever, it all was singular - singular in the sense that liberty of person
being a fundamental right and constitutionally guaranteed,94 a
guarantee which Magna Carta conferred expressly on British people
some 750 years ago as Lord Parker reminded us while participating
in the debate of the House of Lords on Burmashell Company Com-
pensation Bill,95 is being treated too lightly by our Supreme Court.
The Supreme Court, capable of working dynamically, in this case did
not interpret the Constitution as a living document and whose apathy,
to extend protection to individual against all sorts of invasions on
his personal liberty, including even from private persons, is one of
such glaring instances.
However, with this hope that the Supreme Court may be strong
enough to write an obituary of the decision in the Mrs. Vidya Verma
case 9 6 and also with a view that the liberty may closely be guarded from
all possible dangers, it is submitted, with great deference to that
authority, that the judgement needs a revision since it is not free from
91. Ind. Const, art. 31.

92. [1955] 2 S.C.R. 983. Hereinafter referred to as Smt. Vidya Verma.
93. See, Shukla, V. N., Commentaries on the Constitution of India 89 (3d
ed 1964) 2 Basu, D.D., Commentary on the Constitution of India 76 (1962); Sarka
S. C., Law of Criminal Procedure 892 (1960). Seervai, H.M., Constitutional Law
India 471 [1967]; Setalvad, M.C., The Indian Constitution [1950-1965] (K. T.
Telang lectures of the University of Bombay, 1967); Tope. P.K., The Constitutio
of India 170 [1963]; Kagzi, M.C. Jain, The Constitution of India 352 [2d edn
1967], the author cites certain other judicial decisions in support of the view
Jain, M.P., Indian Constitutional Law 144, 349, 439 (1st edn. 1962).
94. In this respect see certain observations of Ayyangar, J., in the State oj
Uttar Pradesh v. Abdul Samad, A.I.R. 1962 S.C. 1506 at 1511.
95. The Hindustan Times , New Delhi, 15 April 1965.
96. [1955] 2 S.C.R. 983.

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difficulty to explain. To take it, even for that mat

is no denial of the fact that some of the fundamen
able even against individuals and the scheme of par
tution speaks for itself. It may be a fact, and r
theory, that generally all these constitutional guar
the Constitution as measures of protection against
state against which an individual cannot protect h
by the normal remedies available under the gener
same time it does not disprove the other theory, na
the rights by their very nature are such that they ar
both. Broadly the scheme of the fundamental rig
(a) those rights which are available against the sta
and ( b ) those which are available against the ind
state.
Referring to their nature, Mr. Justice Subba Rao in Kochuni v.

State of Madras and Kerala , observed:97
Fundamental rights have a transcendental position in the Constitution.

Our Constitution describes certain rights as fundamental rights and
places them in a separate Part. It provides a machinery for enforcing
those rights. Article 32 prescribes a guaranteed remedy for the
enforcement of those rights and makes the remedial right itself a fund
amental right.98
The view that under article 32 a writ in the nature of habeas corpus
shall not lie to set an individual at liberty when he is being detained by
another individual, is assailable on many grounds. Within the pro-
vision of article 21, which guarantees the right of personal liberty to
individuals as their fundamental right, there appears nothing which
may be capable of controlling its meaning and limiting only its appli-
cation against the state detention. If article 21 is put in a positive manner
certain conclusions are inevitable, and one of such conclusions may be
paraphrased in the following word: that the liberty and life of any indi-
vidual can be taken away provided there is some sanction of law or even
under the colour of some law but the same cannot be taken away with-
out any "procedure established by law."
It is submitted that the detention of any individual by another indi-
vidual falls under the former part of the above paraphrased. Version.
The reason for this appears to be simple. The detention of an
individual in private hands is always without any 'procedure esta-
blished by law' in the absence of any legal authority of one over the
other. It will be too much to go so far as to read the name of the
97. A.I.R. 1960 S.C. 1080, further see Subba Rao, J., in Makhan Singh v.
State of Punjab , supra note 28 at 408 for the same view.
98. Id. at 1089.

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parties against whom the writ shall lie when there is no specific mention
of either individual or state in article 21.
Secondly, it appears after carefully going through the judgement in
th e Mrs. Vidya case" that the Court relied on the language used in
article 31 , but this analogical deduction led the Court a little too far and
contributed all the more to this anamoly. The negative character of
the right contemplated in the article was brought out and emphasized
in his judgement by Mr. Justice Bose. The learned Judge, relying on
P. D. Shamdashani v. Central Bank of India , 100 and quoting an ob-
servation out of the same,101 proceeded:
They held that the language of article 31(1) was similar and decided
that article 31(1) did not apply to invasions of a right by a private
individual and consequently on writ under article 32 would lie in such
a case. For the same reasons we hold that the present petition which is
founded on article 21 does not lie under article 32... 101
It was a grand instance of pari materia. However, it is a happy

augury that in the subsequent decision of Kochuni v. State of Madras
and Kerala ,103 referred to earlier, Mr. Justice Subba Rao has rejected
this analogy between articles 21 and 31 and observed:
Even so. there is no analogy between Article 21 as interpreted by this

Court, and Art. 31(1). Article 21 deals with the personal liberty.. .on
the other hand, Article 31(1) by reason of the amendment, ceases to be
the part of the guarantee against acquisition or requisition of property
without the authority of law, and must therefore be construed on its
own terms. 104
This rejection may be precursor of the view that even article 21 may
be interpreted in its own terms without seeking fillial connections
traceable in other parts of the Constitution. Moreover, there appears
to be no sound reason why the protection should not be extended
against the individual detention in private hands, particularly when
liberty of person forms the fabric of liberty in general so dearly en-
shrined in the preamble of our Constitution and is the basis of an orderly
society in a democratic set up. Any attempt, as it was made in the Mrs.
Vidya case,105 to reduce it to the status of merely property rights is
a mockery of the human dignity and highly reprehensible.
Thirdly, if a writ can lie under article 226 against private custody to
secure the personal liberty of any individual as his fundamental right,
99. Supra note 92.

100. A.I.R. 1952 S.C. 59 : [1952] S.C.R. 391.
101. Id. at 394.
102. Smt. Vidya Ver ma v. Dr. Shiva Narain Verma, supra note 92 at 985,
986, per Bose, J. Emphasis added.
103. A.I.R. 1960 S.C. 1080.
104. Id. at 1093. Emphasis added .
105. [1955] 2 S.C.R. 983.

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there appears to be very little reason why different pr

should be evolved for allowing a similar remedial rig
32. It is fallacious to say that High Court may enfor
under article 21 even against privte individual b
Court cannot. Once it is conceded that there is a righ
of liberty of person, the remedial right either und
article 32 automatically flows out without further putt
tions on it. After all there cannot be different kinds of writs of
habeas corpus1 06 for the purpose of either article 32 or article 226.
In a recent Supreme Court decision107 Mr. Justice Gajendragadkar,
as he then was, rejected a suggestion advanced by Mrē Setalvad, the
former Attorney General, who was appearing on behalf of a party to
the case, that there is a different between a statutory writ of habeas
corpus issued under section 491 of the Code of Criminal Procedure and
a writ provided under the Constitution. On the contrary Mr. Justice
Gajendragadkar was of the view that the remedy, particularly after
the commencement of the Constitution, has become wider.108
Fourthly, the mere existence of any other remedy under any other
law, as appears the sole basis of refusal of the writ in this case by the
court, is no bar to a Constitutional remedy. Undoubtedly the writ
jurisdiction, being the growth of English courts and nurtured by
English judges, appears to be discretionary but the same is not true
when there is allegation of violation of any of the fundamental rights
contained in part III of the Constitution and in such a case the writ
shall lie as a matter of right. Particularly it is all the more true when the
writ has been prayed under article 32. Considering even from this
angle, Supreme Court was not justified in laying down the proposition
that the writ under article 32 will not lie against the private custory
even if it involves the question of individual's right of personal liberty
as his fundamental right.
Although it is now an accepted view that articles 20, 21, and 22 of
the Constitution form a complete code against arbitrary arrest by the
state109 still article 21 is capable of standing independently on its own
legs. Any narrow interpretation to it, that it confers on individuals
fundamental right which is limited against state action alone, will be
slightly a dangerous proposition. In iview of the present social struc-
106. Makhan Singh v. State of Punjab , supra note 28 at 396.

107. In other words, it is clear that the content of the detenu's right to
challenge the legality of his detention which was available to him under
S. 491 (1) (b) prior to the Constitution, has been enlarged by the
fundamental rights guaranteed to the citizens by the Constitution,. .
Id. at 397 per Gagendragadkar, J.
108. See also, Ram Kumar Pearay Lai v. District Magistrate, Delhi,
supra note 43.
109. Kochuni v. State of Madras and Kerala, [1960] 3 S.C.R. 887, 914, per
Subba Rao, J.

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ture where rich man is often able to secure the favour of law and to
avoid its fiat in his our turn, the danger to individual liberty in this
country, unfortunately, is not only from the side of the state alone but
possibly it is even greater from certain undesirable private quarters.
It is not a fact that a remedy under section 100 of the Code of Criminal
Procedure, as suggested by Mr. Justice Hidayatullah in Mohd. Ikram
Hussain v. State of Uttar Pradesh,110 and a remedy by way of resti-
tution of conjugal rights, will cover all such cases and hardly leave any
scope for the writ of habeas corpus. It is submitted that the view of the
learned Judge may lead to hardship in society where its resourceful
people are capable of meddling with the law and order machinary,
and where the magistracy, mostly composed of executives, lacks the
judicial temper. Finding themselves unable to protect the personal
liberty, the people are bound to look higher and higher in quest of
justice. Besides, setting individual at liberty where his liberty is in
danger, the writ will also serve the social end of justice, namely, securing
justice to all in a democratic set up. Keeping in view all these higher
values of life, the Supreme Court certainly shall not close its doors to
those who come to it as a matter of last chance to seek the final verdict
from the highest Court of the country. It is submitted that under these
circumstances the Supreme Court should not narrow down its own ju-
risdiction without any constitutional prohibition on it. A sense of
fear that possibly the extension of remedy may be abused by certain
enthusiasts, is basically based on misapprehention since the Supreme
Court, being a Court of record, has always power to punish those who
abuse the process of the Court. It is one thing to discourage to resort
to a particular process and entirely another to ignore the existence of
a right altogether. In the Smt. Vidya Verma case 1 11 the Supreme Court
took the latter view which appears even logically indefensible.
110. Supra note 10.

111. [1955] 2 S.C.R. 983.

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"HABEAS CORPUS" IN FAMILY LAW

Author(s): Ram Singh

Stable URL: https://www.jstor.org/stable/43950093

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HABEAS CORPUS IN FAMILY LAW

The celebrated writ of habeas corpus , the most cherished we

*B. A., LL.M., Lecturer, Faculty of Law, University of Delhi, Delhi.

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the liberty of the individual. It came as a bulwark of personal libert

There is no very satisfactory definition to be found in the adjudged

5. Edward Jenks, op. cit. supra note 1 at 64.

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husbands alike in getting the release respectiv

10. Id. at 8-9. And also,

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quiring the person concerned to set the detenu at lib

18. Lalmani Devi v. The State , A.I.R. 1957 Pat. 689.

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summate the marriage under such circumstances. The plea of ten

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leaze of any person whom they thought was bei

29. The Code of Criminal Procedure (Act No. V of 1898) § 491 :

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invoke the writ jurisdiction if an equally efficient and effective remedy

II. Custody - Its Impliaticons34

In a petition of habeas corpus the petitioner normally alleges that

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be issued in such a case, It was further contended th

37. The Queen v. Jackson , [1891] L.R. 1 Q.B.D. 671.

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where husband is entitled to exercise a greater control38 than exercis-

III. Disputed Facts and the Practice in Issuing the Writ

Practice, in matter of issuing the writ of habeas corpus in India in

39. Re Cochrane , [1840] 8 Dowl. 630 : 4 Jur. 534.

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of Appeals and further to the House of Lords. 4 2 Pr

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involved in some other equally effective remedies. For example,

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a case against Mahesh for abduction and rape was

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A writ of habeas corpus at the instance of a man to obtain possession

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writ in nisi requiring her production before it; and

51. Supra note 10.

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53. 97 E.R. 471.

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Francis, as much as it was in his power to assign

An analysis of these decisions remarkably shows that relationships

56. Rex v. Delval , supra note 55 at 914.

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IV. Custody of Children

Parents, as a matter of right, are entitled to exercise physical c

A. Conflicting Rights of Custody and the Writ

57. The Guardians and Wards Act of 1890 § 25.

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of course, in certain cases is discretionary except w

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of the petitioners to hand over the custody of the minors. On the

The age of discretion of India, on the basis of some English deci-