Intezar vs State Of Uttarakhand & Others

Lok Pal Singh, J

By means of the present Habeas Corpus Writ Petition, the petitioner has sought a writ in the nature of Habeas Corpus, commanding the respondent

nos.1, 2, 3 and 4 to produce the corpus of respondent no.5 before this Hon’ble Court and set the respondent no.5 at her liberty to go to her

matrimonial house at Village Shankarpur, Hukumatpur, Sahaspur, Tehsil Vikasnagar, District Dehradun.

Petitioner has filed this habeas corpus petition under Article 226 of the Constitution of India with the assertion that he got married with respondent

no.5 Nazma @ Nazzo D/o Respondent no.4 on 01.01.2020. Petitioner and Nazma @ Nazzo, who were major, got married without any compulsion. A

Nikahnama was executed by Maulvi of Village Jeevangarh Vikasnagar, District Dehradun on 01.01.2020. Thereafter, they were residing together

happily.

On 02.01.2020 at about 5:00 P.M., the maternal uncle of petitioner’s wife Nazma, namely, Sazid, Irshad, brother Sonu and mother Afroj,

forcibly entered into house of the petitioner using unparliamentary language and they did marpeet with the wife of the petitioner. When the petitioner

and his family members opposed their act, they threatened that they will take away his wife and murder her in the forest and falsely implicate them.

Though, this version has not been pleaded in the habeas corpus petition, but Annexure No.3 has been annexed in the habeas corpus petition which

states that the said incident happened on 2.01.2020 at about 5:00 P.M. A complaint was made by the petitioner to the Senior Superintendent of Police,

Saharanpur, U.P. that the aforesaid persons took away his wife from his custody and she has been kept in the house of his maternal uncle and others

in Village Chakwali, P.O. Rampur, Manihar, District Saharanpur, U.P.

On perusal of Annexure No.3 of the writ petition, the complaint made by the petitioner to the Senior Superintendent of Police, Saharanpur would

reveal that the wife of the petitioner is in custody of her maternal uncle Sazid and others, who have not been arrayed as parties respondents. The

respondent no.4-father of the girl and Nazma-the alleged wife of the petitioner have been arrayed as respondent nos.4 and 5 and their residences have

been shown at Village Shankarpur, Hukumatpur, P.O. Sahaspur, Tehsil Vikasnagar, District Dehrdadun.

On perusal of Annexure No.3 to this petition, it would further reveal that the girl is not residing in the territorial jurisdiction of this High Court.

Learned counsel for the petitioner, vehemently, argued that the respondent no.5 is residing in the territorial jurisdiction of this High Court, but the fact

remains that this application was filed by the petitioner himself on 13.07.2020 before the Senior Superintendent of Police, Saharanpur, U.P. Thus, it is

evidently clear that the girl is residing outside the territorial jurisdiction of this High Court in Village Chakwali, P.O. Rampur, Manihar, District

Saharanpur, U.P. The petitioner is not coming with the clean hands before this Court.

It seems to this Court that if the petitioner is married to the respondent no.5 and she is not coming to his house, an appropriate legal remedy is

available to the petitioner to file a suit for restitution of conjugal rights against her, but it seems that on an advice, the petitioner has filed this petition,

so, this Court may issue a writ of habeas corpus petition to produce the corpus. No doubt, a writ of habeas corpus should be entertained by the High

Court to save the life of the person, who is in danger, within the territorial jurisdiction of the High Court. It is evident from the material available on

record that the girl is residing with her maternal uncle and others in Village Chakwali, P.O. Rampur, Manihar, District Saharanpur, U.P., which is

outside the territorial jurisdiction of this High Court.

Article 226 of the Constitution of India reads as under:-

“226. Power of High Courts to issue certain writs-(1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases,

any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus,

prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other

purpose).

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by

any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the

exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those

territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any

proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a

copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose

of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application

is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day

afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that

period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause

(2) of Article 32.â€​

This Court has no jurisdiction to issue any direction to the Senior Superintendent of Police, Saharanpur, U.P. to whom the representation has been

made by the petitioner. It seems to this Court that without reading the Annexure No.3, the counsel for the petitioner has filed this petition under the

impression that this Court will issue a writ of habeas corpus to produce the corpus and will act like a trial court to pass a decree just like a decree of

restitution of conjugal rights. Since the petitioner is not coming with the clean hands before this Court, it is trite law that a person who is not coming

with the clean hands, suppression whereof would disentitle the appellant to obtain for any relief.

The Hon’ble Apex Court has considered the relevance of Para No.12 in the case ofA runima Baruah vs. Union of India and others

reported in (2007) 6 SCC 120, which reads as under:-

“12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact.

What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the

facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary

whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for

determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person

invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is

removed and the hands become clean, whether the relief would still be denied is the question.â€​

The Hon’ble Apex Court has considered the relevance of para no.2 in the case of Dalip Singh vs. State of U.P. and others reported in

(2010) 2 SCC 114, which reads as under:-

“In the last 40 years, a new creed of litigant has cropped up. Those who belong to this creed do not have any respect for truth. They

shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of

litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempt6 to pollute the

stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.â€​

In view of the forgoing discussions, this Court is of the view that the petitioner is not coming with clean hands and has filed this habeas corpus

petition this High Court is not having any jurisdiction to hear the present habeas corpus petition as the girl is residing within the territorial jurisdiction of

the Allahabad High Court.

Accordingly, the present habeas corpus petition is devoid of merit and the same is hereby dismissed. There would be no order as to costs.