You can take legal action under domestic violence Act. Habeas corpus writ is not for a person who voluntarily left the family. Still you can try. But to take any legal action you should know his whereabouts otherwise all proceedings will be futile
Writ petition in SC/HC
Can we file writ petition i.e. habeus corpus for my sister's missing husband for 6months. Actually he has left my sister in December 2019 and told her to pick her after 15 days but he snapped all his communication lines and blocked his numbers to all my family members. Even his parents are not telling about his whereabouts. Please suggest legal action against him . He and his family has persecuted my sister at times . He left govt job after 2 months of marriage for which he received dowry tactfully.
Asked 4 years ago in Family Law
Religion: Hindu
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22 Answers
How to know his whereabouts. Cant we file writ for finding the same. As it has to be confirmed whether he wants to live or not. If yes...then how and if not ..we would certainly take legal action for entire duration of marriage.
Asked 4 years ago
Hi, a petition under habeus corpus is filed when a person is detained illegally...It is a case of desertion ..It is advisable that your sister should file a criminal FIR for dowry harassment under section 498A against him and her in-laws follwed by maintenance application under section 125 crpc
You can lodge report to police about his missing. In, case the police do not take any action, you can file petition under section 482CRPC in the High Court.
Habeas corpus can be filed only, if you allege that he has been illegally detained by naming the person.
You can file the same but HC should entertain it. You can try your luck
First of all file a missing complaint with the nearest police station and then subsequently also file a complaint under desertion on the grounds you have mentioned above, straight away approaching the High court will not be of any help and in most chances the high court will tell you to try your remedy before the lower court.
For finding the whereabouts you should approach the police, and if the police fails to take any action or give you any answer, then approach the court.
The court will also not entertain you till the time you have approached availed your remedy of approaching the Police authorities
I presume your sister has filed missing complaint with police
2) if he is not traceable file writ of habeas corpus in HC to direct police to trace husband
Act as mentioned herein above
2) your sister can also file case of dowry harassment against husband and in laws under section 498 A of IPC read with section 2, 3 of dowry prohibition act
1. Mere fact that a person is missing does not give rise to a cause of action to file habeas corpus. You have to show that he is prima facie in the illegal custody of another.
2. A writ petition may be filed though (not a habeas corpus) to seek a writ against the police to trace him.
1 It appears that her husband has abandoned your sister and had gone into incognito.
2. However if you think there is something more than it meets the eye then you will have to first lodge a complaint of missing person and then you can file writ petition in high court only under Habeas Corpus and Mandamus .
3. I wonder how you could take action against him when you are thinking in terms of habeas corpus petition.
4. For punishing him your sister will have to file a case under section 498A IPC nad case under PWDV Act.
No need to file Writ petition in SC/HC.
If you sister know his PAN account of his from his CIBIL records you will come to know in which city he is residing and working in India. If he is in India.
Get CIBIL transactions you will come to know the Bank Accounts and from Bank saving accounts his all other details and check in which city the Debit or Credit cards of his are swiped
If you don't what to go with such details of CIBIL report than file FIR in the police station Missing of husband from home, So they can find with his passport whether he is in Indian or abroad.
You may file writ of habeas corpus before High Court .
You have to mention whereabouts of husband of your sister in the Petition before High Court.
To prosecute the husband of your sister you need his presence.
First initiate writ of habeas corpus before High Court then prosecute him for Cruelty.
Writ petition or a HCP is not maintainable.
Your sister can lodge a criminal complaint agaisnt him for dowry harassment against him and his family members.
Once the police registers FIR, he will automatically appear from his hideout to obtain anticipatory bail for himself and his parents.
She also can add in the complaint that after taking dowry he has deserted her with an intention to cheat her and he married her only for the purpose of cheating her of her money and that he has taken an amount of ... as dowry immediately after the marriage and has absconded and that his family members are also involved in the scam.
Besides this, she can file DV case seeking protection, residence, compensation for the harassment, monthly maintenance and return of her dowry amount and other household articles/her stridhan held in their possession.
In law you have to follow the procedures as laid down.
You cannot file a writ petition under HCP directly without giving a man missing complaint with the local police and exhaust that remedy.
You may go through my previous post on this and consult a local lawyer for taking further and proper legal action as per law in this regard on the advise and instructions from the local lawyer.
- You cannot file Writ Petition or Habeus corpus , if the person missing just for 6 months, specially when that man is the husband of your sister , because it is looking that her husband is deliberately hiding himself , and that's why his parents are not telling about his whereabouts.
- Your sister should file cases against him with the address of her matrimonial home . When court will issue warrant against him , then the police will himself produce before the court.
- Hence you should know that legally your sister is having the following right and claims from her husband.
1. As per law, A wife has the right to claim decent living standards and basic comforts of life from her husband. Hence for claiming the maintenance for her & child, she should file a petition under section 125 CrPc.
- Her husband is under legal obligation to provide the same to her at any cost, even he is working or not.
2. Law entitles wives a basic right to reside in the matrimonial/ home, whether the house owned by her husband or his parents, a rented property or officially provided to him.
- Hence, for claiming her residential right, medical expenses etc, and also for teaching a lesson to the family members of her husband, who subjected her torture & harassment, she should file a petition under the provisions of Domestic Violence Act.
3. As per the Supreme Court, A wife has complete ownership rights over all her Streedhan, the gifts and money given to her before and after marriage. The denial of Streedhan to the wife makes the husband and in-laws liable for criminal charges.
- And further, if the husband or his family members subjected a woman to cruelty for the dowry demand, then they can be booked under Section 498-A.
- Your sister should lodge a written complaint against her husband & his family members, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment.
- The women cell firstly will try to reconcile between them, otherwise, they will lodge an FIR against all the person, who subjected your sister cruelty.
- However, your sister can lodge her complaint for the missing of her husband before the police and higher official.
- Writ Petition is not a valid step for missing a person whereabout.
- You can count on the police reports and question the way of investigation is carried by the Police department.
- Once you feel Police personal is not taking the investigation seriously or you have doubt that no serious efforts are made. Do either try to connect with CP-Gurugram or file complaint against the police department at Gurugram CJM Court U/s 200 of CrPC.
- Can feel free to connect if needed further guidelines.
Regards
Vivek Arya
Dear querist,
- Writ of Habeus corpus means bring the body, if someone is detained unlawfully, only then the writ of habeus corpus is exercised and has limited scope. in your case it will not be a best legal remedy.
Your sister has these legal remedies against her husband:
1. Filing a maintenance application under section 125 crpc.This would ensure that summons/warrant are issued and if he is evading the proceedings, then the police will be directed to search for him, arrest him and present before the court.
2. Filing of various applications such as residential right, medical expenses etc alongwith the residential order, protection order from in laws under domestic violence act
3. Your sister should lodge a written complaint against her husband & his family members, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment. which will take the shape of 498A matter. He cant evade the legal proceedings at it will the prerogative of the police to search for him and present him before the court.
In case you need my assistance in the matter, you can contact me for consultation or on linkedin,
https://www.linkedin.com/in/yuganshu-sharma-655091183/
Regards,
Response to your first post:
It appears from your post that, your sister's husband purposely severed his relations with the family.
If your sister had filed complaint to trace out missing person (missing person complaint) with police it can be taken forward.
If you have records and prove payment of dowry, she can file Dowry Harassment case under section 498-A IPC and also under Sec.2 & 3 of Dowry Prohibition Act against her in-laws and husband.
Response to your second post:
Under above circumstances, writ petition of "Habeas Corpus" in High Court seeking direction against police to trace her husband can be filed.
Depending on the developments after tracing him, further action can be taken against her in-laws and husband for cheating etc.
File a missing complaint.
Habeas Corpus is not applicable here.
Yes you can file Writ of habeus corpus in HC. habeas corpus plea is a seeking a direction to authorities to produce a missing person.
your sister can file Dv and 498a against Husband.
Better file FIR of cheating and dowry demand and DV.
When his demand not met, he left the wife. Police will find him
