1

Name : Roshini

Reg. No : 518A0087

Class : V Year B.A.LL.B

Section : C

BEFORE THE HON’BLE COURT OF TAMILNADU

Under Article 226 of the Constitution of India

W.P No. of 2016

R.MUTHUKUMAR………………………………………………………PETITIONER

V.

STATE OF TAMILNADU………………………………………………RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

 2

TABLE OF CONTENTS

S.NO TABLE OF CONTENTS P.NO

I LIST OF ABBREVIATION

II INDEX OF AUTHORITIES

1. CASES REFERRED

2. ONLINE SOURCES

3. BOOKS REFERRED

III STATEMENT OF JURISDICATION

IV STATEMENT OF THE FACTS

V STATEMENT OF ISSUES

VI SUMMARY OF PLEADINGS

VII ARGUMENTS ADVANCED

VIII PRAYER

MEMORIAL ON BEHALF OF THE RESPONDENT

 3

LIST OF ABBREVIATIONS

& And
¶ Paragraph
AIR All India Radio
Anr. Another
Co. Company
Corpn. Corporation
Ed. Edition
Govt. Government
Hon’ble Honorable
i.e. That is
Ltd. Limited
MoEF Ministry of Economic Affairs
NGT National Green Tribunal
No. Number
Pvt. Private
PWD Public Works Department
RAJ Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
SEIAA State Environment Impact Assessment Agency
U.P Uttar Pradesh
U.S. United States of America
v. Versus
Viz. Videlicet
Vol. Volume
www World Wide Web

MEMORIAL ON BEHALF OF THE RESPONDENT

 4

INDEX OF AUTHORITIES

CASES REFERRED AND CITED:

• Bandhua Mukti Morcha v. Unoin of India, 1984 SC 802.

• Basappa T.C. v. T.C. Nagappa, AIR 1954 SC 440.
• Bhonru Lal v. State of Raj & Ors16, Laws (Raj) 2011-11-215.
• Cf. Cowley v. Cowley, (1901) AC 450.
• Custodian General of Evacuee Property v. Khan Saheb Abdul Shukoor, AIR 1961 SC
1087.
• Ebrahim Aboobakar v. Custodian General of Evacuee Property, AIR 1952 SC 319.
• Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
• Hari Vishnu Kamath v. Syed Ahmed, AIR 1955 SC 233.
• Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578.
• K.M. Shanmugham v. SRVS Pvt. Ltd., AIR 1963 SC 1626.
• Menaka Gandhi v. State of Union of India, AIR 1978 SC 597.
• Mohd. Ikram Hussain v. State of Uttar Pradesh17, AIR 1964 SC 1625.
• Nagendra Nath Bora v. Commr. Hills Division, AIR 1958 SC 398.
• Nagendra v. Commr., AIR 1958 SC 398 (408).
• N.K Aggarwal v. Union of India (2012), SCC online Del.
• NHRC v. State of Arunachal Pradesh(1996), 1 SC 742.
• Parry & Co. v. Commercial Employees Assn., AIR 1952 SC 179.
• People’s Union for Democratic Rights & Others v. Union of India & Others, (1982) 3
SCC 235.
• Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
• R. v. Electricity Commrs., (1924) 1 KB 171 (CA).
• R. v. Local Govt. Board, (1886) 10 QBD 309 (329)
• R. v. Minister of Agriculture (1955) 2 All ER 129 (138) (CA)
• Satya Narayana Sinha v. S. Lal, AIR 1973 SC 2720.
• Satyanarayan Lakshaminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960
SC 137.
• Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044.
• Ummu Sabeena v. State of Kerala2 (2011), 10 SCC 781.
• U/S Real Estate Agencies v. State of Goa10, AIR 2012 SC 3848.

MEMORIAL ON BEHALF OF THE RESPONDENT

 5

STATUTES:

1. Constitution of India
2. Hindu Marriage Act, 1955
3. The Code of Criminal procedure, 1973
4. Indian Penal Code, 1860

BOOKS, ARTICLES AND TREATIES:

1. Constitution of India by Narendra Kumar

2. Family Law by Peeyushi Diwan and Paras Diwan
3. Hindu Law by Basant K Sharma
4. The Code of Criminal Procedure by S.N. Misra
5. Indian Penal Code by S.N. Misra

ONLINE DATABASES:
www.scconline.com
www.manupatra.com
www.indiankanoon.in
www.legalservicesindia.com

MEMORIAL ON BEHALF OF THE RESPONDENT

 6

THE STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HONORABLE HIGH COURT OF INDIA, UNDER THE
ARTICLE 226 OF THE INDIAN CONSTITUTION. THE PETITIONER STATES THAT THE
JURISDICTION OF ART 226 OF THE INDIAN CONSTITUTION WHICH PROVIDES PROTECTION
TO THE CITIZEN OF INDIA FROM ANY KIND OF VIOLATION OF THERE FUNDAMENTAL
RIGHTS, IS APPLICABLE IN THIS CASE.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS.

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority
or person may also be exercised by any High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person is not
within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such
interim order; and

MEMORIAL ON BEHALF OF THE RESPONDENT

 7

(b) giving such party an opportunity of being heard, makes an application to the High Court for the
vacation of such order and furnishes a copy of such application to the party in whose favour such
order has been made or the counsel of such party, the High Court shall dispose of the application
within a period of two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High Court is closed on the
last day of that period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2) of Article 32.

MEMORIAL ON BEHALF OF THE RESPONDENT

 8

STATEMENT OF FACTS

1. Raja S/O Muthu Kumar residing in no.14, Vadivudai amman street, Thiruvottiur, Chennai – 19.

2. He belongs to a middle class family aged 24. On 28 june 2016 morning usually he went to office but
he did not return to his home.

3. Raja’s parents called Raja, but there was no response.

4. The next day morning Raja’s father went to some of his friends house and his office and asked about
him.

5. Later one of the Raja’s friend knows that he’s under the police custody then they went to police
station but Raja was not in the station, Raja’s father and friends asked about Raja there is no proper
response from police station.

6. But one of the police said that his son was unlawfully detained by the Inspector.

7. Then he asked them to write a complaint in station, after two days Raja’s father and friends went to
police station but still there was no proper response from the police station.

MEMORIAL ON BEHALF OF THE RESPONDENT

 9

8. The Raja’s father and friends trying continuously to get any of the details about Raja.

9. But there is no use. One of his friend Ram’s uncle was a lawyer. So ram gave the full details to his
uncle then, he suggested them to file a write petition before the court.

10. Next day Raja’s father filed a Habeas Corpus write petition before the High court.

MEMORIAL ON BEHALF OF THE RESPONDENT

 10

ISSUES RAISED

The following questions are presented for adjudication in the instant matter:

1. WHETHER THE HABEAS CORPUS PETITION IS MAINTAINABLE IN THE PRESENT CASE.

2. WHETHER ALTERNATIVE REMDIES BAR THE JURISDICATION OF HIGH COURT
3. WHETHER THE ORDER PASSED BY THE TRIBUNAL IS BEYOND JURISDICTION AND
PERPETUATES ILLEGALITY.

MEMORIAL ON BEHALF OF THE RESPONDENT

 11

SUMMARY OF ARGUMENTS

1. WHETHER THE HABEAS CORPUS PETITION ISN’T MAINTAINABLE IN THE

PRESENT CASE.

The humble submission before the hon’ble High Court of Tamilnadu is that the writ petition of
habeas corpus is not maintainable in the present case due to the underlying principles for Writ
jurisdiction of a High Court. A writ of habeas corpus is issued for release of a person who has been
detained unlawfully by the State or by any private individual. In this case Raja is living with
his parents by her own will and there is no illegal detention hence writ is maintainable

Moreover, there is no violation of any constitutional or statutory right in present case. Also the writ
does not lie in the present circumstances because the action lies against private individuals (Raja’s
family) and the act so performed doesn’t relate to a public function,

2. WHETHER ALTERNATIVE REMDIES BAR THE JURISDICATION OF HIGH COURT

The humble submission is that the writ jurisdiction under Articles 226/227 of the Constitution of
India shall not be exercised if any alternate remedy is available to litigants. In the present petition of
habeas corpus the petitioner has an alternative remedy available under section 97 of CrPC. or the
restitution of conjugal rights remedy. Thus, the petition of habeas corpus is liable to be dismissed on
the ground that two alternative remedies are not available.

3. WHETHER THE HON’BLE TAMILNADU HIGH COURT HAS THE JURISDICTION

TO HEAR AND DECIDE UPON THE PRESENT MATTER

This Hon’ble Court has the authority to decide upon this case.

MEMORIAL ON BEHALF OF THE RESPONDENT

 12

ADVANCED ARGUMENTS

THAT THE PETITION OR HABEAS CORPUS IS MAINTANABLE

It is humbly contended before the Hon’ble court that the present matter should not be held maintainable
before the Hon’ble High court and should be referred to the Central Administrative Tribunal instead. The
discretionary power of the High court should not interfere with the authority and jurisdiction of the central
administrative tribunal and thus the matter at hand should be referred to the tribunal instead, going directly
to the High Court.

The humble submission before the Hon’ble High Court of Tamilnadu is that the writ petition of habeas
corpus isn’t maintainable in the present case. Habeas Corpus literally means ‘to have the body of’. It is
generally used to regain the custody of the people who have been detained or imprisoned unlawfully. It is
generally understood as an extension of Article 22 of the Constitution of India, 1950 (hereinafter
referred to as the Constitution). A writ of habeas corpus is in the nature of an order upon the person who has
detained another to produce the latter before the court, in order to let the court, know on what ground he has
been confined and set him free if there is no legal justification for the imprisonment. The writ of habeas
corpus has been described as a writ of right and is grantable ex debito just itae. The writ has been described
as the first security of civil liberty.1In the case of Ummu Sabeena v State of Kerela2 it was observed that
“the writ of habeas corpus is the oldest writ, evolved by the Common Law of England to protect the
individual liberty against the invasion in the hands of the executive and even private persons.”In India, the
writ of habeas corpus is maintainable under Article 226 as well as Article 32 of the Constitution. However,
the relief under Article 226 does not lie in the light of the facts of the present case.

1.1. THAT THERE IS NO DEPRIVATION OF PERSONAL LIBERTY The humble submission is that the
remedy of habeas corpus is an extension of Article 21.Article 21 of the Constitution grants the right of life
and personal liberty to all the citizens and non-citizens3 of the State. Additionally, a person can be deprived
of this right only by the procedure of law.4 In the present case, Raja, is willingly staying with her parents.
The same is evident from the fact that she has applied for a divorce from Ram on her own. Raja is 181 years
old and an adult. Thus, she is entitled to stay wherever she wants. Since, she is choosing to stay with her
parents,

________________________________________

Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628;

Vijay Kumar Karwa v. Official Liquidator 2008 (3) SCALE 311.2

MEMORIAL ON BEHALF OF THE RESPONDENT

 13

it cannot be stated that her right to personal liberty has been infringed.Moreover in the case of
Rajeshbhai Nanjibhai Prajapati vs State of Gujrat5 it was held that in view of the statement made by
corpus Mayakumari before the Court that she is not in illegal detention of her parents and she wants to
reside with them who are personally present before the Court, since the corpus Mayakumari is more than 18
years of age, she is sui juris and hence, no fetters can be placed upon her choice of the person with whom
she has to stay. Therefore, the court permitted her to go with her parents.

1.2. THAT THERE IS NO BREACH OF CONSTITUTIONAL OR STATUTORY RIGHT

The humble submission is that in any application filed under Article 226, the petitioner must establish
breach of constitutional or statutory right.6 Marriages in India are sacrosanct and co-habitation is a right that
goes hand in hand with it.

However, in the present case, Raja has continued to stay with her parents according to her own will.
The petitioner is trying to impose the doctrine of coverture on Raja. Doctrine of coverture states that upon
marriage, the wife loses her separate identity under the law, and her husband in effect had complete legal
and economic control over her.

This doctrine was struck down in the case of Joseph Shine v. Union of India8.In the light of the above
assertion, the humble submission is that the right so claimed by the petitioner has been struck down by the
Supreme Court and therefore, there is no violation of any constitutional or statutory right.

________________________

8 Joseph Shine v. Union of India

MEMORIAL ON BEHALF OF THE RESPONDENT

 14

1.3. THAT WRIT DOESN’T LIE AGAINST A PRIVATE PERSON

The humble submission is that a writ under Article 226 doesn’t lie in the present circumstances.
Even though the scope of the writ jurisdiction of Article 226 is much wider as compared to the Article 32,
it isn’t wide enough to include the action in the present circumstances.

A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or
discharges a public duty.9 Such functions are those which are closely related to the functions of the State

In the case of U/s Real Estate Agencies v. Govt of Goa10 it was held that since writ jurisdiction is
exercised by the High Court in public law domain, generally, court doesn’t pass orders under Article 226
against private individuals.

It isn’t because the court doesn’t have power but because public law remedy should not be extended to
private disputes.

Moreover, it was held by the Delhi High Court in the case of N.K. Aggarwal v. Union ofIndia11, that since
the respondent which was a private body, didn’t perform a public function,a writ petition couldn’t lie against
it. Thus, since in the present case, the action lies against private individuals (Raja’s family) and the act so
performed doesn’t relate to a public function, the Writ is liable to be dismissed on this score alone.

_________________________

5 Rajeshbhai Nanjibhai Prajapati vs State of Gujrat, 2010 SCC OnLine Guj 13615

10 U/s Real Estate Agencies v. Govt of Goa

MEMORIAL ON BEHALF OF THE RESPONDENT

 15

2.THAT AN ALTERNATIVE REMEDY IS AVAILABLE

The humble submission is that the writ jurisdiction under Article 226 of the Constitution shall not be
exercised if any alternate remedy is available to litigants.

This alternate remedy may be by way of normal forum of hierarchy of Courts or forum provided in a
statutory provision or may otherwise exists.

In the case of Smt Sudesh Kumari v. State of HP12, the petition was rejected on the ground that an
alternative remedy is available to the petitioner under that Motor Vehicles Act, 1988

.In the case of Seeta Devi v. Mata Pher, the writ of Habeas Corpus was dismissed and the court stated that
the legal perspective that emerges is that a writ of habeas corpus should not, as a matter of course, be
given upon the request of a husband against his wife’s parents or other close relatives.

This exceptional remedy should only be used in extreme circumstances. In most cases, the appellant should
seek out the remedy given under Section 97 CrPC, or the restitution of conjugal rights remedy

.Furthermore, in the cases of Whirlpool Corporation v. Registrar of Trademarks, Mumbai14and the case of
Harbanslal Sahnia v. Indian Oil Corpn Ltd., three exceptions to the principle of alternative remedy
were discussed.

These exceptions are-

(i) where the writ petition seeks enforcement of any fundamental rights;

(ii) where there is a failure of principles of natural justice or

(iii) where the orders or proceedings are wholly without jurisdiction or vires of an act is challenged

.However, none of these conditions are fulfilled in the present case. Therefore, an action under Article 226
isnt maintainable due to the principle of alternative remedy

________________

12 Smt Sudesh Kumari v. State of HP

MEMORIAL ON BEHALF OF THE RESPONDENT

 16

2.1. THAT REMEDY IS AVAILABLE UNDER SECTION 97 OF THE CODE OF CRIMINAL

PROCEDURE

.The humble submission is that in the present case, the petitioner has an alternative remedy under Section
97 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC).

According to Section 97 of CRPC, if any District Magistrate, Sub- divisional Magistrate or Magistrate of
the first class has reason to believe that any person is confined under such circumstances that the
confinement amounts to an offence, he may issue a search- warrant ,and the person, if found, shall be
immediately taken before a Magistrate, who shall make such order as in the circumstances of the case
seems proper.

Thus, before seeking the high court’s extra- ordinary jurisdiction, an aggrieved party must first
exhaust all other legal remedies accessible to him or her which, in the present case, is remedy under
section 97 of CrPC.

Also in the case of Bhonru Lal v State of Raj & Ors16, it was held that the petitioner has an alternative
remedy under Section 97 of The Code of Criminal Procedure, 1973 for the relief sought in the present
habeas corpus petition.

In these circumstances, we do not intend to entertain this habeas corpus petition and the same is,
accordingly, dismissed on the ground of availability of alternative remedy to the petitioner.

In the case of Mohd. Ikram Hussain v. State of Uttar Pradesh, the Supreme Court reprimanded the
petitioner for filing a writ of Habeas Corpus for restitution of conjugal rights, and asked him to
approach the authorities under Section 97 CrPC or file for a civil remedy.

The Court noted that, “exigence of the writ at the instance of a husband is very rare in English Law, and in
India the writ of habeas corpus is probably never used by a husband tore gain his wife” In the light of

MEMORIAL ON BEHALF OF THE RESPONDENT

 17

above assertions, the humble submission is that in the present petition of habeas corpus the petitioner
has an alternative remedy available under section 97 of CrPC.

Therefore, petitioners should, be refrained from directly going to the high court with writ petitions and
must first exhaust other remedies.

Having a remedy under S. 97 which fast-tracks the process of ending wrongful confinement without the
involvement of the Court is very important in a country where the citizens do not have equal access to legal-
mechanisms and thus the present writ petition should be dismissed.

However, Section 97 cannot be resorted to:(a) Where a woman is living voluntarily with her
parents.18(b) Where the woman is an adult and is not being confined against her will.19(c) Being an adult
desires to go back to the place from which she was brought.

The sine qua non of application of section 97 of Code of Criminal Procedure, 1973 is that there has to
be prima facie finding that the person has been in wrongful confinement and that wrongful confinement
must amount to an offence.

MEMORIAL ON BEHALF OF THE RESPONDENT

 18

2.2. THAT AN ALTERNATIVE REMEDY IS AVAILABLE UNDER PERSONAL LAWS

The humble submission is that an alternative remedy is available to the petitioner under Hindu
Marriage Act, 1955 (hereinafter referred to as HMA 1955). Section 9 of HMA 1955 entitles a spouse for
restitution of conjugal rights.

It states that when either the husband or the wife has without reasonable excuse, withdrawn from the society
of the other, the aggrieved party may apply, by petition for restitution of conjugal rights.

In Harvinder Kaur vs Harmander Singh Choudhry22, This high court held that this remedy is aimed at
preserving the marriage and not at disrupting it as in the case of divorce or judicial separation.

The remedy of restitution of conjugal rights provided by section 9 of the Act is based on the assumption that
the spouses have a reciprocal right to the society, company or companionship of each other.

If the assumption proves wrong, divorce is the only “escape route out of a difficult situation.”23In the
light of the above assertion, the humble submission is that the petition of habeas corpus is liable to be
dismissed on the ground that two alternative remedies are available to the petitioner.

MEMORIAL ON BEHALF OF THE RESPONDENT

 19

2.3. THAT CRIMINAL MACHINERY HAS NOT BEEN SET INTO MOTION

The humble submission is that the petitioner has not filed any FIR against Raja’s family against alleged
abduction.

Ram alleges that Raja’s family has abducted her however, his conduct in the instant case does not supports
this contention as the petitioner has not taken recourse of any remedy.

Instead he simply approached the high court A writ of habeas corpus is maintainable only when it is a
case of illegal detention.

Since in Lalita Kumari v .Government of UP & Ors.25, it was held that upon receipt of information by
a police officerin-charge of a police station disclosing a cognizable offence, it is imperative for him
to register a case under Section 154 of the Code.

An FIR must have been filed by the petitioner so that the police could have inquired about the case and
the matter could have resolved without approaching high court.

The Lucknow bench of Allahabad high court in the case of Waseem Haider v. State of UP &Ors.26, held
that a complainant has statutorily engrafted remedies to ensure that his complaint is taken to its logical end.

Thus, he must first exhaust said remedies and cannot invoke extra-ordinary writ remedy as a matter of
course, even when crime is not registered and there is no progress in the investigation .

On the basis of above assertions it is most respectfully submitted before this Hon’ble court that the instant
writ petition is liable to be dismissed considering present circumstances

MEMORIAL ON BEHALF OF THE RESPONDENT

 20

PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited, it is humbly submitted before the Hon’ble High Court of Tamilnadu to kindly adjudge and declare:

THAT THE PETITIONER ISN’T ENTITLED TO THE ORDER OF HABEAS CORPUS AGAINST THE
RESPONDENT

ALL OF WHICH IS RESPECTFULLY SUBMITTED

SD/-______________________________

COUNSEL FOR THE RESPONDENT.

MEMORIAL ON BEHALF OF THE RESPONDENT