Sandeep Singh Jamwal vs State of Jammu & Kashmir and Others

B.L. Bhat, J.—Through the medium of this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution

of J&K, petitioner Sandeep Singh, who claims to be permanent resident of State of J&K has sought the indulgence of this Court for issuance of

appropriate writ to ensure the release of proforma respondent namely Rachita from the illegal custody of Respondents 4 and 5. It is inter-alia

maintained in the petition that the petitioner and the proforma respondent, Rachita had a love affair, this love affair after attaining their age of

majority materialised in their marriage which was solemnised in accordance to Hindu rites and ceremonies on 20.2.2002 at Arya Samaj Mandir,

Akhnoor. That after solemnization of the said marriage, the parties persuaded their parents to accept them as husband and wife instead the family

members of the proforma respondent-Rachita confined her in their house and are planning to get her married, with the person not of her choice

outside the State of J&K. That this action of respondents 4 and 5, who happened to be the parents of the proforma respondent, compelled her to

file a writ petition which came to be registered as OWP No. 866/2002 praying therein for declaration that she is free to stay at a place with the

person of her choice. This writ petition came to be decided on 27.9.2002. That after the disposal of the said writ petition, said proforma

respondent enjoyed her conjugal relations with the petitioner at Sainik Colony, Jammu. That on 1st of November 2002, her parents approached

the petitioner to send her with them in order to enable them to observe their local customs to the solemnization of their marriage and also to

celebrate Diwali and Bhai Duj with the promise that she will be sent back to him on 15.11.2002. That respondents 4 and 5 did not keep their

promise of sending her back to him instead took her to unknown destination and confined her illegally; that the proforma respondent being legally

wedded wife of the petitioner has every right to stay with him and the State Authorities are under legal obligation to protect her life and liberty and

to ensure her release.

On the presentation of this petition, this Court came to issue notice to the respondents presumably calling them upon to show cause as to why

this writ petition may not be admitted to hearing. Pursuant to it, the respondents came to file their objections which are on the file of this Court. The

petitioner by virtue of order dated 27.11.2002 made a request for the deletion of respondent-6 from the array of respondents and this request

came to be accepted; the respondents 4 and 5 who happen to be the parents of Rachita have in their written objections assailed maintainability of

the writ petition on the ground that disputed question of facts are raised in the writ petition that the OWP No. 866/2002 was filed by Rachita under

threat and pressure which came to be disposed of by this Court in which said Rachita had filed an application for withdrawal accompanied by an

affidavit and in this application, she has submitted that she is living with her parents out of her free will; that as per court order passed in OWP No.

866/2002 which is Anx-B to the writ petition, it is ordered that if any action is to be taken against Rachita and Sandeep Singh then they shall be

given notice of 15 days; that no marriage was ever performed between the petitioner and the proforma respondent; that it appears the writ petition

has been filed to harass the said respondents 4 and 5. The said respondents have in short denied the factum of marriage in between the petitioner

and their daughter Rachita and also denied their detaining her in illegal confinement.

Heard the learned counsel for the parties.

Article 226 confers on High Courts very wide powers in the matter of issuing writs with the condition to exercise these powers within the

territories subject to their jurisdiction and that the person or the authority to whom the writs are issued must be amenable to its jurisdiction either by

residence or location within those territories except where the cause of action arises in whole or in part within the territorial jurisdiction of that High

Court. Though the High Courts action under Article 226 of the Constitution of India has unfettered powers for the issuance of the writs and

directions but these powers are circumscribed to the effect that these powers shall not be exercised arbitrailry and also subject to certain self-

imposed limitations which are : that it should not act as court of appeal or revision to correct mere errors of law or of fact; that it is not intended as

an alternate remedy for the relief sought by way of suit or other mode prescribed by a statute i.e. where it is open to the aggrieved to move to

another tribunal authority, court, it will not entertain a petition under Article 226 permit machinery created by the statute be bye passed that it will

not enter upon determination of question which demand an elaborate examination of evidence to establish the right to enforce for which the writ is

claimed and that it will not interfere with determination made by an authority invested with statutory powers particularly when related to the matters

expertise unless there are exceptional circumstances calling for judicial intervention i.e. determination is mala fide or prompted by extraneous

considerations or made in contravention of the principles of natural justice and constitutional provision. In a case titled as Mohd. Ikram Hussain Vs.

State of U.P. and Others, , their Lordships of the Supreme Court in Para-13 of the judgment have observed that:

Exigence of the writ petition 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 u/s 100 Cr. PC is always used. Then there is remedy of civil suit for restitution of

conjugal rights. Husbands take recourse to the latter when detention does not amount to an offence and to the former if it does. In both these

remedies all the issues of the fact have first to be established. This is because writ of Habeas Corpus is festinum remedium and the power can only

be exercised in a clear case.

Having regard to the aforesaid law and the observation of the Apex Court in case supra on examination of the petition and the objections filed

thereto by the respondents, the petitioner has alleged his marriage with Rachita D/O Respondents 4 and 5 and also her illegal confinement by said

respondents which has been denied by the respondents 4 and 5 in their objections wherein they have clearly denied the factum of this marriage and

have categorically stated that Rachita lives with them with her free will and consent. The official respondents have also submitted that the local

police i.e. Police Post, Sanik Colony has not even till date received any such complaint or report which may warrant taking of any legal action in

the matter. From these pleas and counter pleas, it is manifest that the writ petition in question involves disputed facts unless these pleas and counter

pleas are examined with reference to the evidence, proper decision cannot be taken and such a course is impossible in a summary manner in this

writ petition. Besides this, the petitioner has an alternate remedy available u/s 100 Cr. PC by approaching before Magistrate competent to proceed

and also by way of suit for restitution of conjugal rights. Therefore, the petitioner cannot invoke the jurisdiction of the court by way of writ petition

for the relief sought.

Viewed thus, the petition in hand is not sustainable and the same is dismissed at the admission stage.