Subedin vs State Of Rajasthan And Ors

The writ petition in the nature of habeas corpus has been filed alleging illegal detention of Manju Devi. It is stated that petitioner entered into marriage with Manju @ Ayasha. The corpus was earlier also detained by the respondents thus a writ petition was filed. The habeas corpus petition was disposed of by this Court with liberty to the corpus to stay as per her desire.

The corpus stayed with the petitioner but forcefully taken by her brother. The whereabouts of corpus are not known, thereby, she has been detained by private respondents. Accordingly, prayer is made to direct the respondents to produce the corpus with custody to the petitioner.

The respondents have raised objections to the maintainability of the writ petition. It is stated that petitioner is a married person having three children. The corpus Manju Devi is also married prior to alleged second marriage with the petitioner. It is without taking divorce. The second marriage is void thus petitioner has no locus to maintain this petition in the capacity of husband.

Learned counsel for the respondents have further made a reference to a private complaint against the petitioner and others. The trial Court has taken cognizance against the corpus vide its order dated 21.12.2017 and summoned the accused. The copy of said order was referred during course of the arguments and it was shown even to counsel for the petitioner and, with the consent of the parties, a photo copy of the order passed by the trial Court is taken on record.

It is submitted that any direction in the writ petition now may affect the private complaint and otherwise the writ petition is not maintainable in the hands of the petitioner. The prayer is accordingly to dismiss the writ petition.

We have considered rival submissions of the parties and perused the record.

The petitioner is in second round of litigation. The first writ petition preferred by him was decided by this Court vide order dated 23.10.2017. It was found that the corpus is major and the Constitution of India grants liberty to her to stay wherever she wishes. With the aforesaid, writ petition was disposed of though with further direction that no harm should be caused to petitioner as well as to the detenue. It is stated that subsequently the corpus was detained by the private respondents and, therefore, fresh writ petition has been filed.

In the present writ petition, issue of maintainability has been raised for the first time which goes into root of the case. The petitioner has maintained the writ petition in the capacity of husband as is coming out from para two of the writ petition. The corpus is a married woman thus could not have entered into second marriage with the petitioner without taking divorce. No decree of divorce has been produced on record thus the question was raised by this Court as to whether petitioner could have entered into second marriage with Manju Devi. Such a marriage is void thus no right can be claimed out of it.

The present litigation has other aspect as well. A complaint has been maintained before the competent Court alleging offence under Section 494 IPC. The Court has already taken cognizance of the offence. The summons have been issued to the corpus. If we pass any order in the present writ petition, it may affect the private complaint. Accordingly, we find reasons to accept the preliminary objection raised by the respondents.

The issue about locus was not earlier raised and decided by the Court. Accordingly, we find reasons to accept the issue of maintainability of the writ petition in the hands of the petitioner.

In view of the above, the writ petition is dismissed as is not maintainable in the hands of the petitioner.

The copy of the order passed by the trial Court on the private complaint is taken on record.