IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11-9-2008 CORAM THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Habeas Corpus Petition No.1378 of 2008 Palanisamy .. Petitioner ..vs.. 1.State by Inspector of Police All Women Police Station Namakkal 2.Angamuthu 3.Santhosam .. Respondents Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Habeas Corpus directing the first respondent to secure the body of the detenue, namely, Usha D/o Angamuthu aged about 22 years who is in illegal custody of 2nd and 3rd respondent and produce her before this Court and set at liberty. For petitioner : Mr.R.Nalliyappan For respondent : Mr.P.Kumaresan, Additional Public Prosecutor (for R1) https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by PRABHA SRIDEVAN,J.) The petitioner claims to be husband of one Usha, the daughter of respondents 2 and 3. The petitioner claims that he got married her on 5.9.2005 before the Sub-Registrar Office at Salem West. Subsequent to that, as admitted by the petitioner, his wife wanted to continue her studies and she went to the house of her parents and she also wanted to pursue her career at Chennai. It is admitted by the petitioner that respondents 2 and 3 did not know about the marriage between himself and his wife. It is alleged by the petitioner that marriage has been fixed for his wife without her consent with a third person and therefore, this Habeas Corpus Petition has been filed. 2. The learned counsel for the petitioner strenuously argues that the petitioner will be satisfied if he sees his wife's face. He has reason to believe that her life is in danger. The learned counsel also submits that a copy of the marriage certificate has been enclosed in the typed set of papers which would show that the marriage had taken place. The learned counsel further submits that a complaint had been laid on 3.9.2008 regarding the fact that his wife is missing. 3. We are disturbed by the number of Habeas Corpus Petitions filed, which are nothing but matrimonial matters described as Habeas Corpus Petitions. The parents who are disappointed with the choice made by their children, the men who claim to be the husbands on the basis of registration certificates, some of which we have found to be extremely suspect, come to Court claiming that wife is kept in illegal detention or the parents are keeping the spouse in illegal detention. If a man or a woman stays away from his/her spouse without a reasonable cause, the law provides for a remedy of the application of restitution of conjugal rights. A man or a woman who has completed 18 years have the right to choose his/her partner. Whether the parents are satisfied with their choice or not they cannot file Habeas Corpus Petitions. But they do and request us to direct the concerned police to pursue these couples. We think the police should be better employed. 4. Today, Mr.I.Subramanian, learned Senior Counsel who was present in Court was asked by us as to how the practice of filing Habeas Corpus Petitions in such cases started. The learned Senior Counsel informed us that the Habeas Corpus Petitions cannot be filed unless there is illegal detention and he referred to the decision of the Apex Court rendered in GHULAM SARWAR V. UNION OF INDIA (AIR 1967 SC 1335 at paragraph 6) which is extracted as follows. https://hcservices.ecourts.gov.in/hcservices/ "(6) This leads us to the consideration of the scope of a writ of habeas corpus. The nature of the writ of habeas corpus has been neatly summarized in Corpus Juris Secondum, Vol.39 at p.424 thus: "The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the Court or Judge awarding the writ shall consider in that behalf". Blackstone in his Commentaries said of this writ thus: "It is a writ antecedent to statute, and throwing its roof deep into the genus of our common law........ It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I". This writ has been described by John Marshall, C.J., as "a great constitutional privilege." An eminent Judge observed "there is no higher duty than to maintain it unimpaired". It was described as a magna carta of British liberty. Heavy penalties are imposed on a Judge who wrongfully refuses to entertain an application for a writ of habeas corpus. The history of the writ is the history of the conflict between power and liberty. The writ provides a prompt and effective remedy against illegal restraints. It is inextricably inter-twined with the fundamental right of personal liberty. "Habeas Corpus" literally means "have his body". By this writ the Court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon jurisprudence." It is a very valuable tool given to a person to protect the right guaranteed to him under Article 21 of the Constitution of India, that his liberty should not be taken away otherwise than by due process of law and this very precious right that is recognised by our Constitution cannot be abused or debased. 5. In this view of the matter, this Habeas Corpus Petition is https://hcservices.ecourts.gov.in/hcservices/ dismissed with costs of Rs.2,000/-(Rupees Two Thousand only). There is no illegal detention in this case. On the petitioner's own admission, they chose to live separately so that the wife could pursue her studies or career. 6. The petitioner is directed to pay the cost of Rs.2,000/- to the Tamil Nadu Mediation and Conciliation Centre, High Court Buildings, Chennai. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.Inspector of Police All Women Police Station Namakkal. Copy to: The Co-ordinator, Tamil Nadu Mediation and Conciliation Centre, High Court, Madras. 1 CC To Mr.R.Nalliyappan, Advocate, SR NO.51746 H.C.P.No.1378/2008 rsy(co) pmk/3.10.2008. https://hcservices.ecourts.gov.in/hcservices/