• Clarification on habeas corpus

Hello Experts,

I have married to my girlfriend in 2013 through "Arya Samaj Mandir". My family is aware about it and they are ok with it. 
"However we haven't told anything about it to her family."
After our marriage, she continued to stay with her parents and we tried to convince their parents in these three years, but no luck.
Now we know that there are no more scope left to convince them. Also they don't allow her to carry phone or even going out of the house for anything.

Expectation:
We want to live together as husband and wife and want protection for us and my parents for any illegal/legal action from her parents and police.

Action Plan:
We have decided below after discussing the case with my lawyer,
1. She would escape from their parents on planned date.
2. on the same day we will file "habeas corpus" in highcourt for the protection purpose.
3. Till the hearing date (for habeas corpus), we will be staying to an unknown place to not get caught if their parents try to search us illegaly or by pushing police.

Queries:
- What is the timelines for habeas corpus process till the hearing date? Suppose we are filing it on 1st of any month ?
- when is the right time to file habeas corpus notice(before she escape or after)? Please note once she escapes from her house, she can't go back. I can't take any legal step until she is in their hand.
- Is the Habeas Corpus actually applicable/required in my case? 
- I heard that Habeas Corpus would use a lot of false elegations against their parents. Can we avoid such fake and dirty alegations and still ensure our protection with some alternative legal process?
- Do we really need to register our Arya samaj marriage in Registrar office before filing habeas corpus or the alternative way i asked above? (I quried this to another Lawyer and he said that until you register your marriage even if it is Arya Samaj one, it not authentic in court and No one can help us staying together as husband and wife.)

Based on your answers, i will discuss and do the cross questions to my lawyer.

Looking forward for your Expert openions.

Regards,
Abhishek.
Asked 6 months ago in Family Law from Lucknow, Uttar Pradesh
Religion: Hindu
1) register your Arya Samaj marriage 

2) it won't take long 

3) non registration does not affect validity of marriage 

4) if wife is being held by her parents forcibly and not allowed to leave her house then file Habeas corpus petition to direct police to produce her 

5) in your petition you would have to make allegations against her parents 

6) after filing hearing of petition won't take long 

7) timeline your lawyer can guide you 
Ajay Sethi
Advocate, Mumbai
23192 Answers
1218 Consultations
5.0 on 5.0
1) Habeas corpus is for production. Of person detained against her will 

2) if wife is staying with you then no Habeas corpus would lie 

3) if you and your wife are threatened then file police complaint of criminal intimidation under section 506 of IPC 
Ajay Sethi
Advocate, Mumbai
23192 Answers
1218 Consultations
5.0 on 5.0
Hi, Your is not a fit case to file a Habeas  Corpus petition, Don't use this petition as a weapon if the Court will come to know that you have filed the false case then it will back fire to you and Court will take serious action against to you.

2. First , you register your marriage and inform the parents nothing will happen.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
The writ of habeas corpus is the only remedy available against illegal detention of a citizen. The writ’s object is to secure the release of a person who is illegally deprived of his liberty.  The constitutional law and, therefore, to protect individual liberty a High Court owes a duty to safeguard the liberty of all the citizens by issuing a writ of habeas corpus. Even the Supreme Court has observed that the writ of habeas corpus is “a great constitutional privilege of the citizen” or “the first security of civil liberty”. It provides a prompt and effective remedy against illegal detention under the Act or any other enactment authorising preventive detention. Article 21 provides that no person shall be deprived of life and liberty except in accordance with the procedure established by law. 
Thus haebus corpus petition means to bring out somebody from the illegal custody and not that you will run away and file a petition yourself.








 What is the timelines for habeas corpus process till the hearing date? Suppose we are filing it on 1st of any month ?
 A petition filed before high court in this regard will be taken immediately for hearing within one or two days.







 when is the right time to file habeas corpus notice(before she escape or after)? Please note once she escapes from her house, she can't go back. I can't take any legal step until she is in their hand.

Who is planning to file HCP, you, if so how and in what capacity?  If she escapes how can you file once she is with you or under your custody, this if found out shall turn to be a verious offence.






- Is the Habeas Corpus actually applicable/required in my case? 

In my opinion this is a wrong idea and there is no meaning in filing a HCP.






 I heard that Habeas Corpus would use a lot of false elegations against their parents. Can we avoid such fake and dirty alegations and still ensure our protection with some alternative legal process?

Since you both are already married, she can very well join you in your own home and can refuse to go back to her parents house even if police forces her. She is a major and can approach higher police official against the excesses of local police.






Do we really need to register our Arya samaj marriage in Registrar office before filing habeas corpus or the alternative way i asked above? (I quried this to another Lawyer and he said that until you register your marriage even if it is Arya Samaj one, it not authentic in court and No one can help us staying together as husband and wife.

If you have the certificate issued by Arya samaj for having solemnised the marriage between you and her, it is a valid document to prove your marriage and a formal registration of the marriage with the marriage registrar can be done later on.
T Kalaiselvan
Advocate, Vellore
13979 Answers
127 Consultations
5.0 on 5.0
- I mentioned that my wife can escape from her house and stay with me, "what legal procedure we can follow in this case to get protection for us and my family". I doubt if Habeas corpus will be applicable here.

In my opinion you have been misguided or misinformed about the provisions of HCP. 
There is no use of filing HCP whether she elopes with you fleeing her house or walks out of her house on her own and stays away from her home.
If you plan to take her out of her home and live together and fear of criminal assaults from her parents side then you may seek the help of police through higher police officials.
T Kalaiselvan
Advocate, Vellore
13979 Answers
127 Consultations
5.0 on 5.0
1. Habeas Corpus is maintainable only when a person has been held illegally. Once she escapes she cannot be said to be in custody. So it ought to be filed only during the subsistence of her custody.

2. Arya Samaj marriage or registration of marriage is not a condition precedent to the filing of HC.

3. If you want protection from further harassment then file a protection petition and not HC except if she is held against her will..
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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