HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.24017 OF 2023
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. Sri Nadella Venkateswara Rao, learned counsel for
the petitioner, learned Special Government Pleader appearing for
respondents 1 to 4 and Sri T.L.Nayan Kumar, learned counsel
appearing for 5th respondent.
2. This writ petition is filed to direct the respondents-Police to produce the minor boy by name G.Devansh Reddy, before the Court forthwith and to handover the child to the petitioner.
3. Marriage of the petitioner with 5th respondent was performed on 23.03.2019. It is an arranged marriage. They blessed with a baby boy i.e.'G.Devansh Reddy' on 29.05.2021 and he is aged about 2 years 03 months. Thereafter, disputes arose between them. The petitioner and 5th respondent narrated the said disputes in writ affidavit, counter affidavit and reply affidavit. Referring the said disputes in detail are not required to decide the present writ petition of Habeas Corpus. According to the petitioner, on 29.05.2023 5th 2 respondent forcefully entered into her house and took away her child. She lodged a complaint with the 4th respondent who in turn, registered a case in Cr.No.440 of 2023 for the offences punishable under Sections 498-A 323 and 506 of IPC. Investigation is pending in the said crime. The respondents-Police did not respond and whereabouts of her child are not known till date. 5th respondent and his parents are pressuring her to give divorce and not showing her child to her. While the boy was with the 5th respondent, he developed health complications. There are cigarette burnt marks on his cheeks. Therefore, she is apprehending danger to her child in the hands of 5th respondent and his family members. boy is aged only 02 years 03 months. It is tender age and therefore, he requires mother's care and protection.
4. On the other hand, 5th respondent filed counter denying the averments made by the petitioner against him and stated that the child is in his legal custody. The petitioner left his company on her own without any reason. He has issued a legal notice dated 08.11.2022 inviting her to matrimonial home along with the minor child, but she did not respond. They have also entered into Memorandum of Understanding (MOU) dated 21.08.2023 on certain terms and 3 conditions to take mutual consent divorce and re-marry on their own accord. In compliance of the orders of this Court, he has handed over the boy to the petitioner herein. Therefore, he seeks custody of the minor boy on Saturday and Sunday from 9.00 A.M. to evening 8.00 P.M by modifying the orders dated 15.09.2023. Vide order dated 15.09.2023, this Court granted custody of the child to the petitioner by permitting 5th respondent to spend with his son on every Saturday and Sunday between 5.00P.M. to 7.00P.M.
5. The petitioner filed reply affidavit stating that immediately after taking custody of the minor child by virtue of Court order, she took the child who is suffering from mouth ulcers, to hospital and provided treatment. 5th respondent and his parents ill-treated her son. Parents of 5th respondent used to harass her for her salary and 5th respondent used to suspect her on every issue. She was forced by the 5th respondent to leave matrimonial home. She is not interested to take divorce from him. Even after leaving matrimonial home, 5th respondent did not pay anything to support her and her child. She is taking utmost care of the child and the child is hale and healthy with her.
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6. According to the petitioner, 5th respondent forcefully took away the minor boy namely 'G.Devansh Reddy' and he is in illegal custody of 5th respondent. Whereas, according to the 5th respondent, she left matrimonial home on her own along with the child without any reason. The child is in his legal custody of him. According to the petitioner, the 5th respondent tortured the minor boy with cigarette burnt injuries and made him to become unhealthy. In proof of the same, she also filed photographs of the same. It is also specific contention of the 5th respondent that they were entered into MOU for taking divorce. According to the petitioner, she is not interested in divorce.
7. Sri T.L.Nayan Kumar, learned counsel appearing for 5th respondent referring to writ affidavit and reply affidavit filed by the petitioner to the counter filed by the 5th respondent would submit that in writ affidavit, the petitioner herein stated that 5th respondent took minor child on 29.05.2023 and in reply affidavit she has stated that same was on 25.05.2023. There is discrepancy. She has filed false affidavit and she has approached this Court with unclean hands. Referring to various judgment of the Apex Court, he would submit 5 that since the petitioner did not make any effort to see the boy and therefore, she is not entitled for the custody of the boy.
8. Learned counsel for the petitioner would submit that due to inadvertence, petitioner has mentioned different dates. It is neither willful nor wanton. In the light of the same, in a matter like this, the said inadvertence cannot be considered while deciding this writ petition filed for custody of the minor child. We have to consider welfare of the minor child which is paramount consideration. Both the petitioner and 5th respondent are working.
9. According to the learned counsel for 4th respondent four months back, the minor child was with the 5th respondent, she did not make any effort to see the boy and she has filed the present writ petition straightaway.
10. According to the learned Special Govt.Pleader, the investigation in the aforesaid crime is pending. The parties have to approach competent Court seeking custody of the minor child.
11. The aforesaid facts would reveal that there are serious disputes between the petitioner and 5th respondent. There are strained relations between them. The aforesaid crime was registered against 5th respondent on the complaint lodged by the petitioner and the same is 6 pending. Therefore, welfare of the minor child is paramount consideration.
12. It is relevant to note that considering the said aspects, age of the boy and also the principle laid down by the Apex Court, this Court vide order dated 15.09.2023 directed 5th respondent to give custody of the minor boy to the petitioner herein and also permitted the 5th respondent and his parents to spend with minor boy on every Saturday and Sunday between 5.00PM. and 7.00 P.M. The petitioner was also directed not create any problem during the said period. Respondent No.5 shall hand over minor boy to the petitioner thereafter. Parties shall follow the said days, timings and directions strictly, failing which it will be viewed seriously. This Court also granted liberty to respondent No.5 to file appropriate application under Section 7 of the Guardians and Wards Act, 1890 and also appropriate Interlocutory Applications seeking interim custody and visitation rights of the boy before competent jurisdictional Family Court and it is for the said Court to decide the same. However, the 5th respondent requested the Court to give the custody of the boy to him on every Saturday and Sunday between 9.00A.M. to 8.00 P.M. instead of visitation rights. 5th respondent, did not file any application under Section 7 of the 7 Guardians and Wards Act seeking to appoint him as guardian, interim custody of the minor child and visitation rights.
13. 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 Vs. 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.
14. In Ruchi Majoo Vs. 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 1 (2019) 7 SCC 311 2 (2011) 6 SCC 479 8 the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra 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.
15. In Tejaswini Gaud vs 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.
16. 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 3 (2019) 7 SCC 42 4 AIR 1987 HP 34 9 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 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.
17. In Gaurav Nagpal vs Sumedha Nagpal5, 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.
5 (2009) 1 SCC 42 10
18. In view of the above legal principles, admittedly, son of the petitioner and 5th respondent was born on 29.05.2021. He is aged about two years four months. It is tender age. He needs care and protection of his mother. According to us, the minor boy should be with the petitioner, his mother. However, 5th respondent being father, is entitled to spend with the boy. The 5th respondent and his parents, being paternal grandparents of the boy, are entitled to spend with the minor boy on every Saturday and Sunday between 5.00 P.M. to 8.00 P.M. Liberty is also granted to the petitioner to file appropriate application under Section 7 of the Guardians and Wards Act seeking to appoint him as guardian, to give him interim custody of the minor child and visitation rights, before competent jurisdictional Family Court which will have benefit of considering entire record, interacting with the parties and decide the said application. Therefore, it is for the said Court to decide the said application in accordance with law. The aforesaid visitation rights granted to the 5th respondent and his parents are subject to the orders to be passed by the Family Court. However, it is made clear that the Family Court shall decide the said application to be filed by the 5th respondent strictly in accordance with law on merits 11 uninfluenced by any of the findings/observations given/made by this Court in this order.
19. In view of the above discussion, this writ petition is disposed of accordingly with the above directions.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN ____________________ JUSTICE K. SUJANA Date:09.10.2023.
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