HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
HON'BLE DR. JUSTICE SHAMEEM AKTHER
Writ Petition No.5839 of 2021
ORDER: (Per Hon'ble Sri Justice A.Rajasheker Reddy)
This Writ Petition is filed seeking writ of habeas corpus directing
the respondents to produce the petitioner's minor daughter Mudunuru
Hansika D/o.Mudunuru Vijayaramaraju and consequently to order custody of the minor daughter to the petitioner.
Heard Sri Pappu Srinivasa Rao, learned counsel for the petitioner, Sri T.Srikanth Reddy, learned Government Pleader for Home appearing for respondents 1 to 3 & 5 and Sri Nanduri Sriram, learned counsel for the 4th respondent.
Learned counsel for the petitioner submits that the father is the custodian of the detenue and being father, he is entitled for custody of the child. He submits that the mother, who is not in sound state of mind has made contradictory statements one before the police and another in the counter affidavit and it is not in the best interest of the detenue to keep her in the custody of the respondent/mother. He submits that the petitioner is biological father of the detenue child as such, petitioner cannot be deprived of the custody of the child, especially in the present circumstances prevailing and also considering the state of mind of the respondent/wife. In support of his contention, he relied on the judgment reported in Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari [2019 AIR SC 2318].
However, he does not dispute that the petitioner has alternate remedy of approaching Family Court, but submits that some interim arrangement should be made before approaching the Family Court. He also submits that the writ petition is prerogative and extraordinary 2 remedy available to a citizen and that can be invoked by this Court in the facts and circumstances of the case.
On the other hand, learned Government Pleader for Home appearing for learned Advocate General submits that the issue in the writ petition is essentially a dispute between the petitioner/husband and respondent No.4/wife and they have alternate remedy before the Family Court.
Sri Nanduri Sriram, learned counsel for the 4th respondent/wife submits that the petitioner is not the biological father of the detenue/child and that is why the petitioner cannot seek custody by way of habeas corpus petition as the petitioner has effective alternate remedy. He also submits that the writ petition is not maintainable as disputed questions of facts are involved, which cannot be effectively decided in the writ petition by exercising the extraordinary power of jurisdiction under Article 226 of the Constitution of India.
In this case, it is to be seen that the learned counsel for the 4th respondent/wife seriously disputed about the paternity basing on the counter affidavit, which is a purely a question of fact and same cannot be decided in the writ petition under Article 226 of Constitution of India. When the petitioner has efficacious alternate remedy available before the Family Court, this Court is not inclined to entertain the writ petition and that no extraordinary circumstances brought before this Court for entertaining the writ petition.
In view of above facts and circumstances, without expressing any opinion on the merits of the case, the writ petition is disposed of granting liberty to the petitioner to avail alternate remedy before the Family Court and it is for him to obtain interim or final orders, if he is so advised.
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There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
__________________________ A.RAJASHEKER REDDY, J __________________________ DR.SHAMEEM AKTHER, J Date:14.06.2021 kvs