Legal Advice

How to release wife from her parents custody

Shivendra Pratap Singh


High Court Lucknow

Family Law

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Question asked on: 2 Apr, 2021

Sir I want to know how to release wife from her parents custody? I am a Physics teacher and used to give home tuition. During the lockdown I went to teach home tuitions to a girl student at her home. Gradually, we love each other and decided to marry. Her parents were against our marriage, therefore, we solemnised our marriage in a temple. We went to register our marriage but her parents were present at the registrar office. They took my wife and threatened me to keep distance from my wife.

Thereupon, my father in law lodged a FIR against me for kidnapping. My wife’s age is twenty years and she is of sound mind. She will not give any statement against me in that case. I want to take my wife back from the custody of her parents. Please help.

Question from: Karnataka

Your wife’s age is twenty years and she is free to solemnise marriage as per her wish. She does not need consent of her parents before the marriage. Therefore, your marriage is valid under section 5 of the Hindu Marriage Act. A valid marriage confers some rights and liabilities on the husband. Husband becomes the guardian of wife after the marriage. Hence, parents of wife cannot claim guardianship over her daughter.

An adult girl has the right to choose her life partner. Your wife has exercised her right because she is above the ager of eighteen years. Later on, custody of parents against the will of daughter becomes illegal. Therefore, you can prove that she has been in illegal custody.

How to release wife from her parents custody?

The detention of your wife is illegal. You can seek release of your wife from her parent’s custody under section 98 of the Code of Criminal Procedure. The District Magistrate has the power to pass an order of immediate restoration of liberty. Therefore, you should file a complaint to the District Magistrate under section 98 crpc. This is the most swift and effective process to release wife from illegal detention of her parents.

Don’t file writ petition under Article 226

Article 226 of the Constitution of India vests a special power in the High Court to issue a writ of Habeas Corpus. The High Court issues writ of Habeas Corpus to release a person from illegal detention. This is an extraordinary power of the High Court. The High Court exercises such power against the State or public servant. When a private person wrongfully detains a person, the court does not entertain its writ jurisdiction under Article 226.

Thus, you should not file a writ petition for releasing your wife from her parents custody. In this situation, section 98 impowers the District Magistrate to free a person from illegal detention of private person. However, the Sub-divisional Magistrate and First Class Judicial Magistrate can also exercise such a power under section 98 crpc. You should file a complaint before any of them.