Telangana High Court
Smt. Sujatha Jadav Sujatha Sharma vs The State Of Telangana on 23 November, 2023
Author: K.Lakshman
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
&
THE HONOURABLE SMT JUSTICE K.SUJANA
WRIT PETITION No.29274 OF 2023
O R D E R:
(Per the Honourable Sri Justice K.Lakshman) This is a Writ of Habeas Corpus filed by the petitioner seeking to produce her minor son Master Yash Sharma, aged about 5 years from the illegal custody of respondent No.6.
02. Heard Sri M.Naga Raghu, learned counsel representing Sri M.V.S.Sai Sharath, learned counsel for the petitioner, Sri Godugu Mallesham, learned Assistant Government Pleader representing learned Advocate General and Ms.Farhath Ather Sultana, learned counsel for respondent No.6 and perused the record.
03. The brief facts of the case are that:
The petitioner is the wife of respondent No.6. Their marriage was performed on 03.07.2017 as per Hindu rites and customs. It is an arranged marriage. They lived happily for some time. According to the petitioner, 2 respondent No.6 has informed her that he is suffering with 'HIV/AIDS' and he cannot continue his martial life with her. Respondent No.6 is taking treatment for the said disease with respondent No.5. The said fact was shocking to the petitioner and she informed the same to her family members and also to the family members of respondent No.6 to take steps for separation from respondent No.6 in accordance with law. With the intervention of the family members of both parties, respondent No.6 and petitioner entered into Memorandum of Understanding dated 31.10.2018 in the presence of family members of both parties and the said marriage was declared as break down.
They have decided to obtain decree of divorce with mutual consent.
3.1. It is contended by the learned counsel for the petitioner that after entering into the said Memorandum of Understanding, the petitioner and respondent No.6 have lived separately. They have not filed any petition before any Court seeking dissolution of marriage. Elders and well-wishers of their family members made efforts for 3 reunion of the petitioner and respondent No.6. They have advised the petitioner and respondent No.6 to go for adoption of a child belonging to the poor community. Therefore, on the advise of elders and well-wishers they were reunited. They have made enquiries with regard to adoption of a child. The said efforts were fruitful. They have adopted a 7 days newly born child of Smt.R.Rajlaxmi. They have also entered into a Deed of Adoption dated 30.05.2019. They have joined the boy in Hyderabad Scout International School. The petitioner and respondent No.6 stayed under one roof along with child. However, petitioner used to take care of the child. She was not allowing the child to contact respondent No.6 who is suffering with 'AIDS/HIV'. Several disputes arose with respondent No.6 on the said aspect. Respondent No.6 tried to move with the boy which was resisted by petitioner. Thus the relationship between the petitioner and respondent No.6 were strained.
3.2. It is further contended by the learned counsel for the petitioner that in the month of February, 2023 4 respondent No.6 thrown away the petitioner from his marital house by keeping the custody of the minor child. The petitioner and her family members made several efforts to get the custody of the minor boy but in vain. Therefore, she filed the present Writ Petition.
04. Whereas respondent No.6 filed counter-affidavit contending that his marriage with the petitioner was second marriage. The petitioner did not obtain divorce legally from her first husband. The said fact was not informed to respondent No.6. Even to him, it is second marriage but he has obtained decree of divorce from his first wife. Even after the marriage, they lived together for a period of one year for the purpose of children. When he went to medical check-up, he came to know that he has 'HIV/AIDS' disease and taking treatment with respondent No.5. On coming to know about the said fact, the petitioner decided to get separate from respondent No.6 by signing Memorandum of Understanding dated 31.10.2018. Even after signing Memorandum of Understanding dated 31.10.2018, they have not obtained decree of divorce. 5 However, he requested petitioner to permit him to stay with her. The same was accepted. The petitioner and respondent No.6 were staying in the upstairs of the house owned by the parents of respondent No.6. The petitioner did not cooperate with him and started harassing him on one ground or the other. However, they have decided to adopt a child. The said fact was informed to the parents of respondent No.6 who contacted Smt.R.Rajlaxmi of their village, who agreed to give her child in adoption. The husband of Smt.R.Rajlaxmi died when she was pregnant. Therefore, the parents of respondent No.6 agreed to bear the hospital expenditure for delivery of Smt.R.Rajlaxmi and other aspects. Smt.R.Rajlaxmi was having two children, therefore, the father of respondent No.6 taken care of day- to-day necessities of the said Smt.R.Rajlaxmi. Deed of Adoption dated 30.05.2019 was entered into between petitioner and respondent No.6 and the said Smt.R.Rajlaxmi.
4.1. It is further contended by respondent No.6 that he had one brother who is married but he has no issues. 6 Though on the paper, as a formality, the child was adopted in the name of the petitioner and respondent No.6, the petitioner never cared to look after the child properly. The child was brought up in a complete sense by respondent No.6's brother and his wife. The petitioner was leading a life as visitor with respondent No.6. She used to come and live with respondent No.6 for sometime. The petitioner used to take away hard earned income of respondent No.6 who is an auto driver. Even she demanded to pay more amount. On one day, the petitioner got disappeared with the child and after great efforts, respondent No.6 came to know that petitioner took away the child and she demanded Rs.50,000/- for sending back the child and the father of respondent No.6 paid the said amount through online. She used to openly say that she is not ayaa for taking care of the unwanted child. She used to take away the child and demand money. Respondent No.6 and his brother paid Rs.50,000/- on 02.11.2022 by way of transfer to return the child. She left the company of respondent No.6 by taking amount in the month of November, 2022 and deserted respondent No.6 and minor child and she 7 came out with present petition with all false and frivolous allegations.
05. The petitioner filed rejoinder denying all the allegations. According to her, respondent No.6 made said allegations only to succeed in the present Writ Petition. The minor child is in illegal custody of respondent No.6.
06. Sri M.Naga Raghu, learned counsel appearing on behalf of the petitioner would contend that the boy is aged about 5 years and he should be in the safe custody of the petitioner. The minor boy needs protection. Respondent No.6 is suffering from HIV/AIDS disease. Therefore, keeping the minor child with respondent No.6 is unsafe. While deciding the custody petitions, this Court has to consider welfare of minor child as paramount consideration.
07. He relied upon following decisions in:
i. Yashita Sahu v. State of Rajasthan 1 ii. Rajeshwari Chandrasekar Ganesh v. State of Tamil Nadu and others 2 1 (2020) 3 SCC 67 8
08. Whereas learned counsel for respondent No.6 would submit that the petitioner never took care of minor boy. Therefore, giving custody of minor child to the petitioner is not proper in the interest of minor boy. Respondent No.6 with the help of his brother and his wife looking after welfare and protection of the minor child. The minor boy is pursuing his studies and they have joined him in reputed school i.e., Hyderabad Scout International School. He is comfortable with respondent No.6 and his family members. Therefore, only to demand money, she filed the present Writ Petition.
09. Aforesaid facts would reveal that the marriage of respondent No.6 with petitioner was performed on 03.07.2017. It is second marriage to both of them. In the counter-affidavit, respondent No.6 has specifically contended that it is second marriage to both of them. However, petitioner did not obtain decree of divorce legally from her first husband. The said aspect was not informed by petitioner to respondent No.6 at the time of their 2 (2022) SCC Online 885 9 marriage. Respondent No.6 obtained decree of divorce from his first wife. Thus, the petitioner had suppressed about said fact while performing the marriage. However, they have led marital life for one year for the purpose of children. It was not happened. After undergoing medical check-up, respondent No.6 came to know that he is HIV/AIDS positive. On coming to know the said fact, the petitioner decided to get separated from respondent No.6. They have entered into Memorandum of Understanding dated 31.10.2018 in the presence of family members of both parties.
10. It is mentioned in the said MOU that since last six months disputes arose between them, the disputes are not yet settled inspite of elders and well-wishers mediation. They have decided to live separately and break down their marriage by way of obtaining decree of divorce. The said MOU was signed by them in the presence of three witnesses. Despite agreeing to live separately and to obtain divorce from competent Court of law, they have not obtained divorce. According to respondent No.6, petitioner 10 requested respondent No.6 and his family members that she will stay with respondent No.6 for which they have permitted.
11. It is not in dispute that the petitioner and respondent No.6 have decided to adopt a child in view of health condition of respondent No.6. Accordingly, they adopted the child namely Master Yash Sharma at the age of 7 days. He is a new born child. Deed of Adoption dated 30.05.2019 was entered. The said deed of adoption was signed by the petitioner and respondent No.6 in the presence of witnesses. It is a notarized deed of adoption.
12. It is the specific contention of respondent No.6 that on deciding to take adoption, he has informed the same to his parents. The parents of respondent No.6 contacted the said Smt.R.Rajlaxmi of their village and she also agreed. The said Rajlaxmi's lost her husband during her pregnancy. She has two children by that time. Therefore she agreed for the adoption. After giving birth to a male child, she has entered into the said Deed of Adoption dated 30.05.2019.
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13. It is further specific contention of respondent No.6 that his parents met entire expenditure of the hospital and day-to-day necessities of Smt.R.Rajlaxmi and her two children. The petitioner never used to care the boy and he is taking care of the boy with the help of his brother and his wife and parents. He is an auto driver. The petitioner used to come to his house as a visitor. The petitioner left the house of respondent No.6 along with child without informing him and with great difficulty they have traced her out. Thereafter to return the boy, she demanded Rs.50,000/- on 02.11.2022 and the father of respondent No.6 paid the said amount through online. There is specific assertion with regard to the same by respondent No.6 in paragraph No.6 of the counter-affidavit. Though the petitioner filed rejoinder, the said fact was not rebutted specifically. However, she has stated that respondent No.6 taken some money from her mother and retuned the same. She has also stated about conducting of mediation and the same was failed. Thus, according to respondent No.6, the petitioner left his company leaving child on 02.11.2022. 12 Whereas, according to petitioner, respondent No.6 necked her out of the house in the month of February, 2023.
14. Aforesaid facts would reveal that according to the petitioner, she is staying away from child from February, 2023. Except stating that she has made efforts to get custody of the minor child, she has not specifically mentioned the details of the same. Whereas according to respondent No.6, the petitioner left his company along with the child on 02.11.2022 and demanded Rs.50,000/- and the said amount was paid by father of respondent No.6. Thus, according to the petitioner, the minor boy is in illegal custody of respondent No.6. Whereas, according to respondent No.6 the minor boy is in his legal custody.
15. This is a Writ of Habeas Corpus. The proceedings in writ of Habeas Corpus are summary in nature which we have to decide basing on affidavits. While deciding this Writ Petition, we have to consider as to whether the minor child is in illegal custody of respondent No.6 as alleged by the petitioner, while deciding custody of minor child welfare is paramount consideration. The said 13 principle was laid down by the Honourable Apex Court in the aforesaid Judgments relied on by Sri M.Naga Raghu, learned counsel appearing on behalf of the petitioner.
16. The Habeas Corpus proceedings are not to justify or examine the legality of the custody. The proceedings in a Writ of Habeas Corpus 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.
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17. As held by the Honourable Apex Court, the High Court may invoke extraordinary 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. Finally, the High Court has to decide whether the custody is lawful or not.
18. As discussed supra, while deciding a petition for custody of the minor child, welfare of the minor child is paramount consideration. The Honourable Apex Court in Lahari Sakhamuri Vs. Sobhan Kodali 3 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:
i. Maturity and judgment, ii. Mental stability, iii. Ability to provide access to schools, iv. Moral character, 3 (2019) 7 SCC 311 15 v. Ability to provide continuing involvement in the community, vi. 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.
19. In Ruchi Majoo Vs. Sanjeev Majoo 4, the Honourable 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. A High Court may, therefore, invoke its extraordinary 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.
20. In Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari 5, the Honourable Apex Court held that the Court while deciding the child custody cases is not bound by the 4 (2011) 6 SCC 479 5 (2019) 7 SCC 42 16 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.
21. In Kamla Devi v. State of H.P. 6, 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 a 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, 6 AIR 1987 HP 34 17 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.
22. In Gaurav Nagpal vs Sumedha Nagpal 7, 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.
23. In view of the above legal position, coming to the case on hand, as discussed supra, the minor boy is aged about 5 years. It is tender age. He requires proper care and protection. He needs congenial atmosphere. He is presently with respondent No.6. Respondent No.6 joined the minor boy in Hyderabad Scout International School. It is also undisputed fact that respondent No.6 is suffering 7 (2009) 1 SCC 42 18 with HIV/AIDS disease. He has brother, brother's wife and his parents. His brother is also issueless. Therefore, he is taking care of minor boy with the help of his family members. In normal circumstances, we will give custody of a minor boy, aged about 5 years to the mother. But as discussed supra, the petitioner herein is not natural mother of the minor boy. Petitioner and respondent No.6 have adopted the minor boy by way of Deed of Adoption dated 30.05.2019.
24. As discussed supra, both petitioner and respondent No.6 agreed to obtain decree of divorce. They have not filed any application seeking divorce. They have adopted minor boy. It is a second marriage for both of them. It is specific allegation that the petitioner did not obtain divorce legally from his first husband, from the competent Court of Law. The said fact was suppressed by her at the time of marriage with respondent No.6. Though there is specific allegation, the petitioner herein did not deny the said aspect specifically in the said reply affidavit. 19
25. Aforesaid facts would reveal that there are strained relations between petitioner and respondent No.6. Respondent No.6 is taking care of the minor boy's welfare with the help of his brother and his wife and parents. Minor boy is comfortable with them. According to the petitioner, the minor boy is with respondent No.6, who is suffering with HIV/AIDS disease. In the month of February, 2023, respondent No.6 necked her out of the house, she has not mentioned a specific date. She did not made any effort to take custody of the minor child. However, it is the specific contention of respondent No.6 that the petitioner left the company of respondent No.6 along with minor boy on 02.11.2022 by taking an amount of Rs.50,000/- to return the minor boy. Thus, according to respondent No.6, the boy is in his company and petitioner left him and the boy on 02.11.2022 itself.
26. As stated supra, there are special statutes governing the rights of the guardians, but the welfare of the minor child is the supreme consideration in cases concerning custody of the minor children. Welfare of the 20 child is paramount consideration for the courts in custody matters.
27. In the light of the aforesaid facts and circumstances of the case, we are of the considered view that the minor boy should be with respondent No.6 for the present. However, if the petitioner wants guardianship and visitation rights, she has to approach competent jurisdictional Family Court by way of filing appropriate application. Therefore, liberty is granted to the petitioner to approach a competent Family Court by way of filing appropriate applications seeking guardianship and interim custody and visitation rights etc. The learned Family Court will have the benefit of interacting with the child, parties and to consider the entire material on record for granting relief. We have to examine each case basing on its own facts and circumstances on case to case basis. We have to decide whether the custody is lawful or not. We have to decide each case on examination of the facts of each case.
28. In the light of the aforesaid discussion, the boy i.e., Master Yash Sharma, aged 5 years is not in illegal 21 custody of respondent No.6, adopted father. Therefore, this Writ Petition is liable to be dismissed.
29. Accordingly, this Writ Petition is dismissed. However, the petitioner is at liberty to file appropriate application seeking guardianship and visitation rights of the minor child by approaching competent jurisdictional Family Court, if she so desires. Liberty is also granted to the petitioner to raise all the contentions and grounds raised in the present Writ Petition before the learned Family Court and it is for the said Court to consider the same and pass appropriate orders, in accordance with law. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________ K.LAKSHMAN, J _____________ K.SUJANA, J Date: 23-NOV-2023 KHRM