Telangana High Court
Smt. Dr. B. Priyanka vs The State Of Telangana on 22 December, 2023
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P.SREE SUDHA
WRIT PETITION No.32696 of 2023
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. T. Pradyumna Kumar Reddy, learned Senior Counsel representing Sri Ravinder Reddy Muppu, leaned counsel for the petitioner, Sri Godugu Mallesham, learned Asst. Govt.Pleader for respondents 1 to 3 and Sri A.Prabhakar Rao, learned counsel for 4th respondent.
2. This writ petition is filed seeking a direction to the respondents 1 to 3 to produce the minor children i.e. Baby D.Devanshi aged about 7 years and Baby D.Vivanshi, aged about 2 years from the unlawful custody of 4th respondent, their natural father, before the Court and to hand over the children to the petitioner, their natural mother.
Facts of the case:-
3. The marriage of the petitioner is performed with 4th respondent who is none other than the son of the petitioners' paternal aunt on 15.08.2014. It is a love marriage. They are blessed with two 2 daughters i.e. Baby D. Devanshu born on 12.11.2016 aged about 7 years and Baby D. Vivanshi, born on 12.08.2021 aged about 2 years Thereafter, disputes arose between them. According to the petitioner, 4th respondent and his family members harassed her both physically and mentally saying that she gave birth to female children. 4th respondent necked her out of their house on 05.05.2023. Since then she along with her two daughters is residing at her parents house. On 23.06.2023, 4th respondent, without her permission, took away elder child from school. On the next day, he requested her parents to attend family function at his house and to send the younger daughter and assured that he will return both the children soon. When she asked him to return the children, he demanded 20 lakhs as dowry, otherwise he would not return the children. On 05.07.2023, she went to his house and asked to hand over the children, for which he along with his mother D. Vijayalakshmi and his brother D. Rajesh refused to hand over her children. Instead of returning the children, they beat her, abused and snatched her cell phone. Then she lodged a complaint with 3rd respondent against them alleging that 4th respondent demanded Rs.20,00,000/- from her to return her children. Despite receiving and acknowledging the same, 3rd respondent did not register any case and 3 not taken any action. Thereafter, she made a complaint before the Deputy Commissioner of Police, West Zone, Hyderabad on 10.07.2023 but no action was taken. Then she lodged a complaint on 13.07.2023 before 2nd respondent but in vain for the reasons best known to them. Aggrieved by the inaction of the official respondents, she has filed W.P.No.20657 of 2023 seeking a direction to 3rd respondent to register FIR and to hand over her children to her. Later she withdrew the same and filed the present writ petition. If the custody of the children is not given, she and her children are put to mental agony. Therefore, the present writ petition.
4. On the other hand, opposing the said allegations, admitting the marriage and children, 4th respondent filed counter contending that the petitioner was a medical graduate by the time of marriage. She prosecuted Post Graduation in MIX (Radiology) in a private Medical College. She also started doing private medical practice at Bachupally in the name of 'Sunshine Medical Diagnostic Centre in the month of September, 2022. There she developed acquaintance with one Karthik who was working as supervisor of the building where her clinic is located. Since December, 2022 she completely stopped to attend household duties and taking care of the children. He found drastic 4 change in her conduct. On verifying her call list, it was found that herself and Mr. Karthik exchanged messages and some financial transactions were also taken place between them. The said acquaintance was developed into illicit relationship. The petitioner and Karthik were regularly having chatting on phone. In the 2nd week of May 2023, when he questioned her conduct and the relationship with said Karthik, she left the house along with children without intimating him and his family members and started residing with her parents. Thereafter, he went to his in-laws house, informed them about her relationship, shown the messages exchanged in between them and screen shots of money transactions for which they assured him to take steps for closure of the diagnostic centre.
5. It is further contended that the petitioner on the request of her parents came to his house along with children, but continued relationship with said Karthik. When he questioned, she left the house leaving the children with him. The children are prosecuting their studies in Sister Nivedithi School, Ameerpet. The petitioner filed W.P.No.20657 of 2023 without making him as party. The said writ petition was dismissed as withdrawn. Thereafter the present writ petition is filed. 4th respondent filed a complaint under Section 200 5 Cr.P.C. vide Crl.(SR) No.3390 of 2023 before XI Additional Chief Metropolitan Magistrate, Medchal-Malkajgiri district at Kukatpally. The Learned Magistrate recorded his statement on 04.07.2023. The private complaint is pending for consideration.
6. He further stated that on 25.04.2023, he red handedly caught the petitioner and said Karthik in a room on 4th floor of the diagnostic center building and took away cell phone of the petitioner and said Karthik skipped away from the spot. After disclosure of their illicit relationship, they started threatening him to eliminate him and children if he does not accept their illicit relationship. Even on 20.05.2023, the said Karthik came to the diagnostic center and threatened him not to take any legal steps against the petitioner. Thus, he is apprehending threat to his life and lives of the children from the petitioner. Therefore, he sought to dismiss the writ petition.
7. The aforesaid facts would reveal that the petitioner is legally wedded wife of 4th respondent who is none other than the son of her paternal aunt. The said marriage is a love marriage. They blessed with two daughters i.e. Baby D. Devanshu aged about 7 years born on 12.11.2016 and Baby D. Vivanshi aged about 2 years, born on 12.08.2021. Thereafter, disputes arose between them. According to 6 the petitioner herein, 4th respondent and his family members harassed her both physically and mentally saying that she gave birth to female children and necked her out on 05.05.2023. Since then, she and her daughters have taken shelter with her parents. On 23.06.2023, 4th respondent without permission took away her elder daughter from school by informing the school teachers that he would bring her back on Monday. Thereafter, on the next day, 4th respondent has requested parents of the petitioner to attend family function at his house, to send her younger daughter with an assurance that he will return both the children by coming Monday. But there is no mention in the writ affidavit whether the parents of the petitioner accepted the request made by the 4th respondent to send the younger daughter to his house and sent. However, according to the petitioner, both the children were with 4th respondent and when she asked 4th respondent to return the children on Monday, he started demanding an amount of Rs.20 Lakhs as dowry, otherwise he would not return the children.
8. It is further contended by the petitioner that when 4th respondent failed to return the children, she visited house of 4th respondent with a request to hand over the children on 05.07.2023 for which respondent No.4, his mother and brother refused to hand over 7 the children. On the other hand, he beat her and his mother abused her, pushed her out of their house by snatching away her cell phone. She lodged a complaint with 3rd respondent on 05.07.2023. Despite receiving and acknowledging the said complaint, 3rd respondent did not act upon the same. Therefore, she made a complaint with the Deputy Commissioner of the Police, West Zone, on 10.07.2023 and also with 2nd respondent on 13.07.2023. Even then, there is no action from the respondents. She filed a writ petition vide W.P.No.20657 of 2023 seeking a direction to official respondents to register FIR and produce her daughter. The same was dismissed as withdrawn.
9. According to the learned Asst. Govt.Pleader appearing for respondents 1 to 3, complaint filed by 4th respondent under Section 200 Cr.P.C. is pending and therefore, petitioner has to approach competent Court seeking custody of minor children. Findings of the Court:-
10. This is a writ of Habeas Corpus. The proceedings in a writ of Habeas Corpus are summary in nature. We have to decide the same basing on the affidavits filed by the parties. In the present writ petition, we have to consider as to whether the minor children are in illegal custody of 4th respondent as alleged by the petitioner. In a 8 matter like this, welfare of the child is paramount consideration while deciding this writ petition.
11. Habeas Corpus proceedings are not to justify or examine the legality of the custody. The Habeas corpus proceedings is a medium through which custody of child is addressed to the discretion of the Court. Habeas Corpus is a prerogative writ which is an extra ordinary remedy and the writ is issued in the circumstances of a particular case where ordinary remedy provided by the law is either invaluable or is ineffective, otherwise a writ will not be issued in child custody matters. The power of High Court in granting writ is qualified only in cases where the detention of minor is to a person who is not entitled to his legal custody. In view of the same, in child custody matters, writ of Habeas Corpus is maintainable where it is approved that the detention of a minor child or parents and others is illegal without any authority of law.
12. It is relevant to note that this Court in Tarannum Naaz v.
The State of Telangana 1 considered the several aspects and law laid down by the Apex Court in deciding the custody petitions. In paragraph No.59 of the said judgment, this Court observed that while 1 MANU/TL/0956/2023 9 deciding a petition for custody of the minor children, the following crucial factors are to be kept in mind by the Courts for gauging the welfare of the children equally for the parents:-
1. Maturity and judgment,
2. Mental stability,
3. Ability to provide access to schools,
4. Moral character,
5. Ability to provide continuing involvement in the community,
6. Financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parents as an individual.
13. In the aforesaid cases, the Apex Court has taken a view that the High Court may invoke extra ordinary jurisdiction to determine the legality of the detention. The High Court has to decide the Habeas Corpus petition by conducting summary proceedings basing on the affidavits filed by the parties. The High Court has to examine each case basing on its own facts and circumstances on case to case basis.
There will not be any straightjacket formula in deciding the custody matters. Finally High Court has to decide whether the custody is lawful or not.
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14. In the light of the aforesaid principles laid down by the Apex Court, coming to the case on hand, as discussed supra, there are serious allegations made by the petitioner as well as 4th respondent. According to the petitioner, 4th respondent abducted the children and they are in his illegal custody. He is demanding an amount of Rs.20 Lakhs to return the children. He has taken first child from the school without permission and second child on the pretext of family function and did not return.
15. According to 4th respondent, petitioner is maintaining illicit relation with one Karthik and in proof of the same, he has filed photographs, whatsapp chats and hotel bills etc. However, learned counsel for the petitioner disputes the same contending that 4th respondent created the same only to defame the petitioner. The said aspects which are serious disputed questions of fact which we cannot decide in exercise of power under Article 226 of Constitution of India. It is the Family Court which has power to decide the same on conducting full-fledged trial.
16. Admittedly, the children are female children. Their age is tender age. They need care and support of mother. In normal circumstances, the mother is entitled for custody of the children. But 11 in the present case, facts are slightly different. As discussed supra, both the petitioner and 4th respondents are making serious allegations against each other which will be considered by Family Ccourt after conducting full fledged trial.
17. Welfare of minor children is paramount consideration while deciding custody petitions. Both the minor children are with 4th respondent from 23.06.2023 and 24.06.2023. The petitioner, except stating that she has lodged a complaint with the Police, she has not initiated any other steps to seek custody of the minor children. According to 4th respondent he is staying with his parents and his mother is taking care of the minor children apart from 4th respondent and his father.
18. As discussed supra, in the present writ petition, we have to decide as to whether there is detention much less illegal detention of minor children by 4th respondent. In the light of the aforesaid discussion, we are of the considered opinion that there is no abduction or detention much less illegal detention of the minor children by 4th respondent. Therefore, the petitioner has to approach jurisdictional Family Court seeking custody of minor children by filing appropriate 12 application and Family Court will have benefit of considering the material on record, interacting with the parties and children and decide the said petition after conducting full-fledged trial.
19. In view of the aforesaid discussion, this writ petition is disposed of holding that :-
i. The petitioner is not entitled for custody of the minor children i.e. Baby D.Devanshi aged about 7 years and Baby D.Vivanshi, aged about 2 years.
ii. Liberty is granted to the petitioner to file appropriate application in terms of Section 7 of the Guardians and Wards Act, seeking to declare her as a guardian, appropriate application seeking custody of the minor children before the juridictional Family Court which will have the benefit of interacting with the parties and minor children and consider the entire material on record, other relevant factors on the subject matter and decide the said application.
iii. Liberty is also granted to the parties to raise all the contentions and grounds raised in the present writ petition before the Family 13 Court and it is for the said Court to consider the same and pass appropriate orders in accordance with law. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date: 22.12.2023 Vvr