HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.25840 OF 2023
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. S. Suman, learned counsel for the petitioner and Mr.
Godugu Mallesham, learned Assistant Government Pleader
representing learned Additional Advocate General appearing on
behalf of respondent Nos.1 and 2 and Mr. Khaja Aijazuddin, learned
counsel for respondent No.3.
2. This writ petition is filed to issue a writ of habeas corpus declaring the detention of i) Kancharla Gayathri (13 Years); ii) Kancherla Kesava Sai (12 Years), who are minors by respondent No.3 as illegal and for a consequential direction to respondent No.2 to produce the said minors before this Court and set them at liberty and hand over to the petitioner
3. In the affidavit filed in support of the writ petition, the petitioner contended as follows:
i) This writ petition is filed by the petitioner, wife of respondent No.3. While she was a minor aged 16 years, respondent No.3 abducted her and married her in a temple forcing her parents to 2 KL,J & SKS,J W.P. No.25840 of 2023 concede to his demand and to marry her as per Hindu rites and customs. Out of their wedlock, they blessed with three children viz., i) Kancharla Deva Harshini, aged 15 years; ii) Kancharla Gayathri, aged 13 years and iii) Kancharla Kesava Sai, aged 12 years and all of them are school going children.
ii) Respondent No.3, the husband of the petitioner, started behaving an arrogant manner and treated her cruelly after birth of children. He is not taking proper care of her and their children. The disputes arose between them cropped up and ultimately the petitioner left the matrimonial house and started living independently from 2022.
iii) Despite giving reports to the police, the police are not entertaining the same at the instance of respondent No.3 being an employee in Police Department. Respondent No.3 beat the petitioner severely causing injuries to her body and he used to abuse her physically and mentally under the influence of alcohol.
iv) In the absence of the petitioner on 11.03.2022, her husband booked a cab and with the help of cab driver, took all the three children from her residence. However, their eldest daughter, Ms. K. Deva Harshini is able to understand the evil designs of her husband, escaped by getting down from the cab and returned to her. On coming 3 KL,J & SKS,J W.P. No.25840 of 2023 to know the same, she approached respondent No.2 and requested to produce her children, but they did not take any steps. On 12.03.2022, when the petitioner went to her husband and requested him to give back their children for which he became wild and beat her severally and injured her body and face. Seeing the said incident, the neighbours dialed 100, then police came, but did not register any case against her husband. Thereafter, she was shifted to hospital.
iv) The aforesaid two children are minors and they should be under her guardianship. Therefore, she filed the present writ petition seeking the aforesaid relief.
4. Respondent No.3 - husband of the petitioner, filed counter affidavit denying the averments made in the affidavit. He further contended as under:
i) The petitioner is guilty of suppressing of material;
ii) The petitioner is involved in immoral activities with Mr. Vaddi Balaji and she got missing from the matrimonial home which compelled him to file police complaint on 08.03.2022 at Rajendranagar Police Station vide FIR No.452 of 2022 as woman missing and on 12.03.2022 the petitioner herself came to the house;4
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iii) He filed a petition before the Family Court at Ranga Reddy District seeking dissolution of marriage with the petitioner on the ground of cruelty and other grounds vide O.P. No.904 of 2021 and the same is pending;
iv) The petitioner bore grudge against him and filed a false case under Section - 498A of IPC, wherein the police on completion of investigation laid charge sheet and the same was taken on file as CC No.1618 of 2022, which is also pending before the Rajendranagar Court;
v) The allegations that he abducted the petitioner and married the petitioner; that he harassed her physically and mentally; that he used to beat the petitioner severely and that he being police constable influenced the police in not registering a case against him on the complaint lodged by the petitioner etc., are false and baseless.
vi) Since the petitioner was involved in immoral activities with Mr. Vaddi Balaji and got married him who is also working as Police Constable with Andhra Pradesh Police, custody of the aforesaid two children cannot be given to the petitioner;
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vii) Respondent No.3 is working in the Discipline Force of Telangana Police, he is very much taking care of his two children and they are happily studying; and
viii) With the aforesaid submissions, he sought to dismiss the writ petition.
5. The aforesaid facts would reveal that the marriage of the petitioner with respondent No.5 was performed on 20.07.2005 and they blessed with three children. Elder daughter is aged 15 years and she is with the petitioner herein - mother. Younger daughter and son aged about 13 years and 12 years respectively are with respondent No.3 - father. There are matrimonial disputes between the petitioner and respondent No.3. Respondent No.3 has already filed a petition vide O.P.No.904 of 2021 against the petitioner seeking dissolution of marriage on the ground of cruelty. Whereas, the petitioner herein has filed a complaint against respondent No.3 and the same was registered in Crime No.493 of 2022 of Rajendranagar Police Station, for the offence punishable under Section 498-A of IPC. After completion of investigation, the police laid charge sheet against respondent No.3 for the offences punishable under Sections - 498A and 323 of IPC and the same was taken on file as C.C. No.1618 of 2022, which is pending. 6
KL,J & SKS,J W.P. No.25840 of 2023 Thus, there are strained relations between the petitioner and respondent No.3. Respondent No.3 herein has made serious allegation of adulterous life by the petitioner. He has also mentioned the details of the same. The said OP and the CC are pending. Respondent No.3 has also lodged a complaint with Rajendranagar Police Station, who in turn, registered a case in Crime No.452 of 2022 for 'woman missing' and thereafter it was closed. According to respondent No.3, the petitioner was involved in immoral activities with Mr. Vaddi Balaji during subsistence of first marriage with respondent No.3. The said Vaddi Balaji is also a police constable. In the light of the same, we have interacted with the petitioner, respondent No.3 and their children separately.
6. The proceedings in writ of habeas corpus are summary in nature and we have to decide the same basing on the affidavits filed by the parties. The Hon'ble Supreme Court and this Court time and again categorically held that while deciding custody petitions, welfare of the minor children is paramount consideration.
7. As discussed above, the elder daughter of the petitioner and respondent No.3 is 15 years and she is studying 10th class. Younger daughter is in 9th class and she is 13 years old and son is 12 years and 7 KL,J & SKS,J W.P. No.25840 of 2023 he is studying 7th class. According to the petitioner, in her absence on 11.03.2022, respondent No.3 took all the three minor children in a Cab. However, the elder daughter came back to her. She has already initiated steps by filing an application under the Guardian and Wards Act before the Family Court, Ranga Reddy District at L.B. Nagar seeking custody of the second daughter and visitation rights of son. According to learned counsel for the petitioner, the said petition was returned for want of jurisdiction. Thus, she has already filed the aforesaid petition seeking the custody of second daughter and visitation rights of the son. She has lodged a complaint with the police department on 13.03.2022. Thus, even according to the petitioner, the minor children i.e., younger daughter and son are with respondent No.3 from 11.03.2022.
8. In normal circumstances, keeping in view the welfare of the minor children, we will grant custody of minor children to the mother, more particularly, a girl aged 13 years old requires mother's care and protection. In the present case, the facts are altogether different. We have interacted with the three children separately. We have also interacted with the petitioner and respondent No.3. During 8 KL,J & SKS,J W.P. No.25840 of 2023 interaction, the petitioner informed us that she is also doing a real- estate business.
9. As discussed supra, while deciding a petition for custody of the minor child, welfare of the minor child is paramount consideration. The Apex Court in Lahari Sakhamuri v. Sobhan Kodali 1 considered the following as the crucial factors which have 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.
10. In Ruchi Majoo v. Sanjeev Majoo 2, the Apex Court held that nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. High Court may, therefore, invoke its extra 1 . (2019) 7 SCC 311 2 . (2011) 6 SCC 479 9 KL,J & SKS,J W.P. No.25840 of 2023 ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody.
11. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari 3, the Apex Court held that the Court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the Court ought to be child interest and welfare of the child.
12. In Kamla Devi v. State of H.P. 4, it was held that in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human statues nor by strict rules of evidence or procedure not by precedents. In selecting proper guardian of an 3 . (2019) 7 SCC 42 4 . AIR 1987 HP 34 10 KL,J & SKS,J W.P. No.25840 of 2023 minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, may bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above, physical comforts, moral and ethical values cannot be ignored. They are equally, even more important, essential and indispensable considerations.
13. In Gaurav Nagpal v. Sumedha Nagpal 5, the Apex Court as follows:-
"The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word "welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded."
14. In the light of the aforesaid discussion, according to us, there is no detention, much less illegal detention of the aforesaid two minor children of the petitioner and respondent No.3. At the cost of repetition, as stated above, the minor children are with respondent 5 . (2009) 1 SCC 42 11 KL,J & SKS,J W.P. No.25840 of 2023 No.3 from 11.03.2022. She has filed a petition under Section - 7 (b) of the Guardian and Wards Act seeking custody of the second daughter and visitation rights of third child on 29.07.2022 on the file of Principal District Judge, Family Court, Ranga Reddy District at L.B. Nagar. According to learned counsel for the petitioner, it was returned on the point of jurisdiction. Therefore, either she has to convict the said Court on the point of jurisdiction or file a petition before appropriate Court having jurisdiction and pursue the same. In the light of the aforesaid discussion, we are of the considered view that two minor children viz.., i) Ms. Kancharla Gayathri, aged 13 years and ii) Mr. Kancharla Kesava Sai, aged 12 years, are not in illegal custody of respondent No.3. There is no detention, much less illegal detention.
15. In the light of the above discussion, the present writ petition is disposed of granting liberty to the petitioner to pursue the said G.W.O.P. filed by her seeking custody of the second daughter and visitation rights of third child/son which was returned for want of jurisdiction, or to file a fresh GWOP before appropriate Court seeking the aforesaid relief. The Family Court will have benefit of considering entire material and interaction with the parties before 12 KL,J & SKS,J W.P. No.25840 of 2023 passing necessary orders. It is for the Family Court to decide such application in accordance with law. In the circumstances of the cases, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 17th November, 2023 Mgr