IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 4075 of 2008 Between: Mujtaba Hussain Sheik, S/o. Mushtaq Hussain, R/o.11-5-43/A, Red Hills, Hyderabad. ..... PETITIONER AND 1. The Government of Andhra Pradesh, Rep by its Chief Secretary, Secretariat, Hyderabad. 2. The Commissioner of Police, Basheerabagh, Hyderabad. 3. The Station House Officer, P.S. Asifnagar, Hyderabad. 4. Mohammed Amjad Ali, S/o. not known, R/o.8-1-523/119, B-Block, Road No. 3, Brindavan Colony, Hyderabad, Andhra Pradesh .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Habeas Corpus directing the respondents to produce the detenu named Smt. Uzma Firdous, W/o. Mujtab Hussain Sheik, D/o.Mohammed Amjad Ali, aged about 24 yeas, physically before this Hon'ble Court and she may be set at liberty after declaring that her detention by the respondents is illegal and without any lawful authority in the interest of justice Counsel for the Petitioner: MR.Y.NAGAIAH Counsel for the Respondent Nos.1 to 3: THE ADVOCATE GENERAL Counsel for the Respondent No.4: MR. M.A.BARI The Court made the following : ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) This is a writ of Habeas Corpus filed by the petitioner under Article 226 of the Constitution of India seeking production of Ms.Uzma Firdous, daughter of 4th respondent-Mohmmed Amjad Ali, alleging that he married the alleged detenu on 11.01.2008 at Hyderabad as per Muslim Rites and Customs before the Qazi, the Marriage Officer appointed by the Wakf Board of Andhra Pradesh, and that on 15.01.2008 the Wakf Board also issued marriage certificate confirming their marriage, which was solemnized in the presence of friends and relatives and that the parents of Ms.Uzma Firdous are making hectic efforts for the second marriage of their daughter with another person and to send their daughter to London after the second marriage and that on 17.02.2008 the parents of Ms.Uzma Firdous made arrangements for second marriage and to send her with newly wedded husband to London secretly. Therefore, she should be directed to be produced before the Court to set her at liberty from the illegal custody of her parents. 2. 3rd respondent-Inspector of Police, Asifnagar P.S., filed a counter-affidavit along with copy of the FIR in Crime No.88 of 2008 of Golconda P.S., dated 24.02.2008, registered against the petitioner herein for the offences under Sections 500, 507 and 509 IPC. The complaint allegations, on which basis Crime No.88 of 2008 was registered, go to show that Ms.Uzma Firdous is facing threats, harassment and abuses through letters, phone calls, and SMS from the petitioner and also one Ms.Samreen and that Ms.Uzma Firdous is supposed to get married next month. It is further alleged in the complaint that as the complainant is supposed to get married next month the accused have posted vulgar letters to her would be in- law’s house and the letters contained very filthy language and direct live threats to her and her family members and also to her in-laws. The said letters are being posted from Bijapur and Hyderabad through post, courier service and also hand delivery from unknown people and she strongly suspects that the petitioner and Ms.Samreen are responsible for such letters, which were posted to break her proposed marriage and to create problems to her family members. 3. Heard learned counsel appearing for the petitioner and learned Advocate General appearing for the respondents 1 to 3 and learned counsel appearing for the 4th respondent. 4. The counter-affidavit and the material papers filed by the 3rd respondent disclose that the petitioner herein, on 19.02.2008, filed O.P.No.143 of 2008 before the Family Court, at Hyderabad for restitution of conjugal rights alleging that he married Ms.Uzma Firdous on 11.01.2008 at Hyderabad. In the said O.P. he also filed I.A.No.160 of 2008 seeking an ad interim injunction restraining the respondent from contacting another marriage during the pendency of O.P. When he failed to obtain an ad interim injunction, the present writ petition appears to have been filed by him on 26.02.2008 for the reliefs aforementioned. 5. It is well settled that an application under Article 226 of the Constitution of India is to be refused without hearing on merits or Rule is discharged, if the applicant has made a deliberate concealment of material facts with a view to misled the Court. This Court in Nara Goud v. Industrial Tribunhal-cum-Labour Court[1] held that a party seeking relief by invoking the extra ordinary jurisdiction of High Court under Article 226 of the Constitution should come forth stating the true facts. 6. The petitioner in para.6 of his affidavit filed in support of this petition categorically asserted that he has not filed any writ petition, suit or any other appeal before any court or authority claiming the same relief hereunder. In fact, the filing of O.P. and I.A. for the reliefs as mentioned supra belies such averment made by the petitioner. In view of the same, we are not inclined to exercise the discretionary relief under Article 226 of the Constitution of India in favour of the petitioner. 7. The Supreme Court in Mohd.Ikram Hussain v. State of U.P.[2] categorically held that 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 India the writ of habeas Corpus is probably never used by a husband to regain his wife and the alternative remedy under Section 97 Cr.P.C. 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. 8. In view of the complaint allegations on which basis a case in Crime No.88 of 2008 of Asif Nagar P.S. was registered against the petitioner for the offences under Sections 500, 507 and 509 IPC, we are not inclined to exercise the discretionary relief on both grounds. 9. The writ petition is accordingly dismissed with exemplary costs of Rs.5,000/- (Rupees Five Thousand only) payable by the petitioner to Ms.Uzma Firdous through the 4th respondent within two weeks from today. ________________ A. GOPAL REDDY, J. ______________________ B.SESHASAYANA REDDY, J. Date:24th March, 2008. TNB/CS ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Government of Andhra Pradesh, Rep by its Chief Secretary, Secretariat, Hyderabad. 2. The Commissioner of Police, Basheerabagh, Hyderabad. 3. The Station House Officer, P.S. Asifnagar, Hyderabad. 4. Mohammed Amjad Ali, S/o. not known, R/o.8-1-523/119, B-Block, Road No. 3, Brindavan Colony, Hyderabad, Andhra Pradesh. 5. 2 C Cs to the Advocate General, High Court of A.P., Hyderabad (OUT) 6. 2 C D copies Form-NIC-OGS/WP{RLD} [1] 1996(3) ALD 53 (DB) [2] AIR 1964 SUPREME COURT 1625