HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 48 of 2008 22.01.2008 Between: T. Raghavendra Swamy … Petitioner AND Bollishetti Shiva Rama Krishna Prasad & others … Respondents O R D E R: (per the Hon’ble Sri Justice A. Gopal Reddy) This writ petition is filed for a writ of habeas corpus to direct the respondents to produce the petitioner’s wife viz. Srilatha and to handover her to him. The case of the petitioner, in brief, is as follows: The petitioner got intimacy with Tirumala Srilatha- the alleged detenu, daughter of respondent No.2 which lead to their marriage at Bharath Gardens, Karmanghat, Hyderabad on 18.02.2005. On the next day, when he along with his wife went to the house of respondent No.2 for his blessings, they were made to stay there as wife and husband till 02.06.2005. Thereafter, respondent No.2 sent the alleged detenu to Hyderabad on the pretext of learning advanced computer courses with his consent, but later on, he was deprived of the company of his wife and even he was not informed of her whereabouts. On 06.08.2005, he got issued a legal notice to respondent No.2 and on the advise of Chairman, Mandal Legal Services Committee, Miryalaguda, he filed O.P. No. 2 of 2007 before the Court of Senior Civil Judge, Miryalaguda against his wife for restitution of conjugal rights and the same was decreed, but so far his wife did not join his company. On 24.05.2007, at the instance of respondent No.2, Sub-Inspector of Police, Miryalaguda Town had illegally detained him for a period of three days and tortured him. On 15.07.2007, he learnt that respondent No.2 performed the marriage of his wife with respondent No.1. On 15.08.2007 at about 10.00 a.m., respondent No.2 made an attack with deadly weapons along with anti social elements and, therefore, he filed a complaint in the Court of II Metropolitan Magistrate, Cyberabad at L.B. Nagar vide C.C. No. 1457 of 2007 against respondents Nos.1 and 2 and the alleged detenu for the offences under Sections 494 and 502 read with 108 I.P.C. and the same is pending. In the counter-affidavit filed by the Sub-Inspector of Police, respondent No.4 herein, it has been stated that on receiving communication from the office of the learned Advocate General, he made enquiries into the matter which revealed that the alleged detenu is wife of Sri Bollishetti Shiva Rama Krishna Prasad, that their marriage took place on 18.03.2006 and they were blessed with a girl on 31.12.2007. It has been further stated that on examining the alleged detenu, she revealed that petitioner worked under her father as a Marketing Executive for a period of three months, that during the said period, he misappropriated the amount; that on coming to know the same, her father removed him from the job, that keeping the same in mind and in order to willfully defame their family, the present writ petition has been filed with false allegations. We have heard learned counsel for the petitioner and the learned Government Pleader. In the affidavit filed in support of the writ petition, the petitioner asserts that he filed O.P.No.2 of 2007 for restitution of conjugal rights and obtained an ex parte decree. Therefore, we are of the opinion that he is always at liberty to execute the said decree. Further, it has been stated that he filed a complaint against respondent Nos. 1 and 2 and the alleged detenu and the same was numbered as C.C.No.1457 of 2007. Since the said case is pending, it is always open for him to avail the remedies under Section 97 of the Code of Criminal Procedure therein. I n Mohd. Ikram Hussain v.State of U.P.[1], the Supreme Court, at paragraphs 13 and 14, categorically held as under: 13. 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. 14. ……. 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. In the light of the above decision, we are of the opinion that a writ of habeas corpus cannot be issued to a man to obtain possession of a woman alleged to be his wife, as a matter of course. However, the petitioner is at liberty to avail the remedies in the proceedings that were already initiated by him before the civil and criminal Courts. We do not find any merit in the writ petition and the same is accordingly dismissed. There shall be no order as to costs. A. GOPAL REDDY, J NOOTY RAMAMOHANA RAO, J 24.01.2008 ksld [1] AIR 1964 SC 1625