Dinesh Rajak vs State Of Madhya Pradesh And Others

Anil Verma, J

Petitioner Dinesh Rajak along with his counsel Shri O.P. Manjhi is present.

Wife of petitioner, namely, Smt. Preeti Rajak has been produced by Lady Constable Meenu Giri No.593 posted at Police Station Purani Chhawani, District Gwalior. Mother of corpus is also present before this Court.

Petitioner submits that he is ready and willing to keep his wife Smt. Preeti Rajak (corpus) with him, but corpus, who is major and married lady, has categorically stated that her marriage was solemnized with the petitioner about 11 years ago and out of their wedlock, they are having two minor children aged about 7 and 9 years and at present, both children are living with the petitioner. Corpus further categorically stated that she does not want to live with her husband/petitioner Dinesh Rajak. Even she is not willing to live with her mother and being a major lady, she wants to live separately from her husband and mother.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner/husband seeking issuance of writ in the nature of habeas corpus for production of his wife Smt. Preeti Rajak (corpus), who has been illegally detained by respondents No. 4 and 5.

Case of the petitioner is that petitioner got married with corpus about 10 years ago and from their wedlock, they are having two children. It is alleged that on 10.12.2025 at about 02:00 PM, when corpus was alone at home, respondents No. 4 and 5 took the corpus with them along with ornaments and cash of Rs.50,000/- and since then, she is in illegal detention by respondents No. 4 and 5. Hence, this petition has been filed.

Learned counsel for the petitioner submits that the corpus is a major and legally wedded wife of the petitioner. Petitioner had made several efforts to bring her back, but she does not want to live with him.

Learned counsel for the State submits that from the pleadings of writ petition as well as statement of corpus recorded before this Court, it is apparent that corpus Smt. Preeti Rajak has left her matrimonial home on her own accord and there is no material on record to suggest that she is under illegal detention by respondents No. 4 and 5, therefore, in the aforesaid circumstances, petitioner is seeking a writ of habeas corpus, which would not be maintainable.

Both the parties heard.

A writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of force and may be granted only on the reasonable ground or probable cause being shown.

The writ of habeas corpus has been held as a festinum remedium and accordingly the power would be exercisable in a clear case. The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course.

The power to direct search for persons wrongfully confined is provided under Section 97 of the Criminal Procedure Code, 1973 whereas Section 98 provides the procedure to compel restoration of abducted females. In a situation where the husband seeks to assert that the wife, without reasonable cause, is refusing to return to her matrimonial home, it would be open for him to seek the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The recourse to the latter remedy may be sought where the detention does not amount to an offence and to the former if it does. While invoking either of these remedies, all the issues relating to facts can be agitated and examined, whereas a writ of habeas corpus may not be issued where facts are disputed or are not clearly established.

The exercise of the extraordinary jurisdiction for issuance of writ of habeas corpus would be dependent on the jurisdictional fact where the petitioner establishes a prima facie case that the detention is unlawful, which apparently is not demonstrated from the facts which are on record in the present case.

In the instant case, corpus Smt. Preeti Rajak has left her matrimonial house on her own volition and there is no material on record to substantiate the allegation of illegal detention by respondents No. 4 and 5, therefore, petition seeking a writ of habeas corpus at the behest of petitioner-husband is maintainable.

The corpus being a major and married woman is at liberty to reside at a place of her choice, in accordance with her own free will. However, the petitioner shall be at liberty to avail such other remedies as may be available to him under the civil or criminal law, in accordance with law, if so advised.

With aforesaid observations, this writ petition stands dismissed.