Himachal Pradesh High Court
Master Rishab And Another vs State Of Himachal Pradesh & Ors on 4 May, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. WP No. 10 of 2018
Date of decision: 04.05.2018.
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Master Rishab and another ...... Petitioners
Vs.
State of Himachal Pradesh & Ors. ..... Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1.No.
For the petitioner : Mr. Atul Jhingan and Ms. Shilpa Sood,
Advocates.
For the respondents : Mr. Vinod Thakur, Addl. A.G. with Mr.
J.S. Guleria and Mr. Bhupinder Thakur,
Dy. A.Gs.
Justice Tarlok Singh Chauhan, Judge (Oral)
The petitioners have filed writ of habeas corpus seeking direction to respondents No. 1 to 3 to produce the respondents, more particularly, respondent No. 8, who happens to be the mother of petitioner No. 1 and wife of petitioner No. 2.
2. It is averred that respondent No. 8 is not being permitted to join her matrimonial home by her relatives, more particularly, her brothers. The petitioner in support of his allegations has annexed two documents with the petition, one being a certificate issued by the office of President of Gram Panchayat, Dharampur (Madhan), Post Office Dharmapur, Tehsil Theog, District Shimla, H.P., dated 19.04.2018, wherein it has 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. ::: Downloaded on - 04/05/2018 22:58:55 :::HCHP been stated that the Panchayat had tried to prevail upon respondent No. 8 to join her matrimonial home but in vain as she refused to join.
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3. Likewise, there was another document placed as Annexure-PB, which is alleged to be an affidavit executed by respondent No. 8 wherein she has categorically stated that she is finding difficult to carry on her marriage with petitioner No. 2. She, in fact, goes to the extent of stating that the marriage between them has been dissolved as per the custom.
4. At this stage, it is apt to refer to the contents of the affidavit in its entirety, which reads thus:-
"I, Kirna d/o Shri Kartar Singh, r/o Village Churag, PO Churag, Tehsil Karsog, District Mandi (HP) aged about 21 years old.
1. I hereby declare on oath that I am Hindu and bound by Hindu Marriage Act. I am also major and bound by my acts and conduct.
2. I hereby declare on oath that I have married with Shri Laiq Ram Chauhan s/o Shri Lagnu Ram, r/o Village Dharampur, PO Theog, G.P. Dharampur, Tehsil Theog, District Shimla (HP) about two years ago and one issue namely Rishav age one year and five month has been born out of this wedlock.
3. I hereby declare on oath that due to unavoidable circumstances it is difficult to carry on my marriage with Shri Laiq Ram Chauhan.
4. I hereby declare on oath that today onwards we have dissolved our marriage customary without any undue influence and pressure. I will not claim for any maintenance from Shri Laiq Ram and Shri Laiq Ram is not bound to maintain me and he is at liberty to marry wherever he wants and further declare that I will not claim any maintenance ::: Downloaded on - 04/05/2018 22:58:55 :::HCHP allowance from Shri Laiq Ram as my husband and will not file any maintenance case against him in any court of law. The child Rishav will live with his father for which I have no objection.
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5. I hereby declare on oath that I have no objection if my name be deleted from the parivar register of Shri Laiq Ram at Gram Panchyat Dharampur, Tehsil Theog, District Shimla and he is at liberty to live wherever he likes and wherever he wants to marry.
Deponent Verification I hereby declare on oath that my above affidavit is true and correct and there is nothing kept concealed from truth. This affidavit has been executed at Karsog on 15 th day of March, 2018.
r Deponent"
5. Respondent No. 8, admittedly, is major and, therefore, is free to reside with anyone she likes. We do not find even the slightest indication that she is being confined or restrained against her will, rather it appears that there is matrimonial discord between the parties, which is otherwise evident from the documents annexed with the petition.
6. The sine qua non for maintaining the writ petition under Article 226 for issuance of habeas corpus writ is that there has to be an illegal detention by the respondent of a corpus then only it falls under Article 226 of the Constitution of India.
7. Since in the case this basic requirement of filing of writ petition under Article 226 for issuance of writ of habeas ::: Downloaded on - 04/05/2018 22:58:55 :::HCHP corpus is missing and therefore, we cannot entertain this writ petition under Article 226 of the Constitution of India.
8. Accordingly, this petition is clearly misconceived and .
dismissed as such.
(Tarlok Singh Chauhan), Judge (Chander Bhusan Barowalia) Judge Dated: 04.05.2018 (Sanjeev) ::: Downloaded on - 04/05/2018 22:58:55 :::HCHP