The Madhya Pradesh High Court has held that writ of habeas corpus cannot be issued against an individual residing outside the territory of India.
The Division Bench comprising of Justice Vivek Rusia and Justice Amar Nath in this view dimissed a petition for securing the custody of seven months old girl child who was under the custody of her father in Netherland.
It was the petitioner's case that after two days of the marriage, she was subjected to cruelty for demand of dowry. She then soon shifted at the work place of her husband in France. From there they went Dubai and finally after two and half years shifted to Netherland.
She submitted that she faced harrasement and cruelty by her husband for which he was restrained to stay nearby by the Netherland Police. Since, the petitioner was unable to survive without financial support so she left the Netherland and came back to India. According to the petitioner under local Rules and Laws, she was not permitted to travel with child to India without the consent of her husband. Therefore she had to return to India without the child who was given under the custody of her husband.
The petitioner had got registered the case under Section 498-A, 506 of IPC and Section 3 & 4 of Dowry Act against her husband and his family. With the present writ-petition, she intended to secure the child's custody.
The core issue before the Court was whether this Court can issue a writ of habeas corpus against the person who is residing outside the territory of India?
Answering in negative to the same, the Court observed:
"The High Court shall have the power throughout the territories
in relation to which it exercises jurisdiction to issue to any person or
authority including any government within whose territories directions,
order or writs for the enforcement of any of the rights conferred by
Part III and for any other purpose. Therefore, the high Court can issue a
writ under
Article 226 of the Constitution of India to any person within its
territory, thus, this writ petition is not maintainable and liable to be
dismissed on this ground alone. Even otherwise admittedly, the
respondent No.5 is biological father of corpus, therefore, the custody
cannot be said to be illegal for issuance of writ in the nature of
habeas corpus."
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(With input from news agency language)
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