HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.19218 OF 2023
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. M.Venkata Rama Rao, learned counsel for the
petitioner, learned Special Government Pleader appearing for
respondents 1 to 4 and Sri K.Venumadhav, learned counsel appearing
for respondents 6 to 9.
2. This writ petition is filed to direct 4th respondent to produce minor child by name Baby Arragunta Eshanvi, aged about 3½ years, daughter of 1st petitioner before the Court.
The undisputed facts of the case are as follows:-
3. Marriage of the 1st petitioner with the daughter of respondents 6 and 7 was performed on 24.02.2018 in Hyderabad. It is a love - cum - arranged marriage. They were blessed with a baby girl by name 'Arragunta Eshanvi' on 11.12.2019. Thereafter, disputes arose between the 1st petitioner and the daughter of respondents 6 and 7 i.e. Smt. Badugu Sarita (hereinafter referred as deceased). A quarrel took place between the deceased and respondents 6 to 9 with regard to 2 payment of chit amount of Rs.5 Lakhs. Ultimately, on 28.03.2023, the deceased committed suicide due to hard discussion with her family members. On the complaint lodged by the brother of the deceased dated 29.03.2023, the Police, Narsingi Police Station, have registered a case in Cr.No.351 of 2023 against the petitioners for the offences punishable under Sections 498-A and 306 of IPC. Ultimately the petitioner No.1 was released on bail.
4. It is specific contention of the petitioners that petitioner No.1 performed final rituals of the deceased at his parents house situated at Changicharla Village, Medipally Mandal, Medchal-Malkajgiri District. On 14.06.2023, respondents 6, 8 and 9 came to the house of the petitioners without informing them or their family members and abducted the minor child. On enquiry of the 1st petitioner, they said that they would return the minor child within ten days. Thereafter, they have not returned.
5. On 27.06.2023 and 05.07.2023, 2nd petitioner lodged a complaint with 4th respondent against respondents 6 to 9. The Police have not taken any action.
6. According to the 1st petitioner, on 19.06.2023 he took admission of the minor child into PP1 Class in Meridian school at 3 Changicherla. Due to illegal custody of the minor child by respondents 6 to 9, the child is missing love and affection of the petitioners and their family members. 6th respondent filed GWOP No.40 of 2023 on the file of Family Court, Ranga Reddy District at L.B.Nagar, seeking guardianship and permanent custody of the minor child, to declare her as a guardian and permanent custody of the minor child. Therefore, according to the petitioners, minor child is in illegal custody of respondents 6 to 9. Therefore, he filed writ present writ petition for production of the minor child.
7. It is the specific contention of the respondents 6 and 7 that their daughter committed suicide due to harassment of both the petitioners. Therefore, they have lodged a complaint against the petitioners and the said case is pending. 1st petitioner developed bad habits and is also maintaining extra marital relationship. He has also demanded huge amount of dowry. He took all the salary amount of their daughter and harassed her both physically and mentally. According to them, 1st petitioner killed their daughter in order to get second marriage and for more dowry. He filed the present writ petition only to escape from the punishment in the aforesaid crime. There is no illegal detention of the minor child by them. They have taken the 4 minor girl with the permission of the petitioners, only but not forcibly as alleged. In view of the extra-marital relationship being maintained by the 1st respondent, he will not be in a position to take care of welfare of the minor child. They have joined the minor child in a reputed school. 6th respondent has also filed GWOP No.40 of 2023 to declare her as a guardian and for permanent custody of the minor child. The petitioners have to pursue the said petition.
8. It is contended by 4th respondent that on 27.06.2023, he has received a complaint from the petitioner stating that respondents 6 and 7 took away the child. They have made G.D. entry of the said complaint and during enquiry it revealed about the death of the deceased and registration of the aforesaid crime. However, 6th respondent has already filed GWOP No.40 of 2023 to declare her as guardian and permanent custody of the minor child.
9. In view of the same, respondents 6 and 7 informed 4th respondent that they will not give custody of the minor child to the 1st petitioner and he is at liberty to pursue the aforesaid GWOP.
10. The aforesaid facts would reveal that the marriage of 1st petitioner with the deceased was performed on 24.02.2018. It is a love
- cum - arranged marriage. Before marriage, both the spouses were 5 working as software employees in their respective companies. They blessed with a baby girl by name 'Arragunta Eshanvi' dated 11.12.2019. At present she is 3 ½ years. Thereafter, disputes arose between the petitioner and the deceased. According to the 1st petitioner, the deceased committed suicide. Whereas, according to the respondents 6 and 7, the 1st petitioner killed her by harassing both physically and mentally. However, on the complaint lodged by brother of the deceased, Police, Narsingi Police Station have registered a case in Cr.No.351 of 2023 for the offences punishable under Sections 498-A and 306 of IPC. 1st petitioner was sent to judicial custody and he was released on bail.
11. According to the petitioners, respondents 6, 8 and 9 abducted the minor child illegally and therefore, minor child is in illegal custody of the respondents 6 to 9. Whereas, according to respondents 6 and 7, 1st petitioner is maintaining illicit relationship with another woman, he has harassed their daughter both physically and mentally. According to them, 1st petitioner killed their daughter. The minor child is aged about 3½ years and they have joined her in a reputed school.
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12. In the light of the aforesaid allegation, the petitioners herein may not take care of the welfare of the minor child. Therefore, being maternal grandparents, they are intending to take care of the minor child and also her welfare. She is not in their illegal custody and they never abducted the minor child as alleged by the petitioners.
13. Aforesaid facts would reveal that there is strained relationship between the petitioner and respondents 6 and 7. Investigation in the aforesaid crime is pending. Admittedly, the minor child is aged about 3½ years. 6th respondent has already filed GWOP No.40 of 2023 on the file of Family Court, Ranga Reddy District at L.B.Nagar, against 1st petitioner seeking to declare her as guardian to the minor child and permanent custody of the minor child to her. The said petition is pending.
14. This is a writ of Habeas Corpus. The proceedings in writ of Habeas Corpus are summary in nature. In the present writ petition, the only issue which we have to decide is as to whether the minor child is in illegal custody of respondents 6 to 9 as alleged by the petitioners.
15. Apex Court 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:-
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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.
16. 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 where in the circumstances of a particular case ordinary remedy provided by the law is either invaluable or is ineffective, otherwise a writ will not be issued in a 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 pronouncement issue in question in Supreme Court and High Courts, the 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. 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 and case to case basis. Finally High Court has to decide whether the custody is lawful or not.
18. In the light of the aforesaid legal position, in normal circumstances, 1st petitioner, being the father is entitled for the custody of the minor child. 1st petitioner is the father and 2nd petitioner is paternal grandmother of minor child. Respondents 6 and 7 are maternal grandparents of the minor child. In normal circumstances, we will give custody of the minor child to the petitioners. Whereas, in the present case, there are serious allegations against 1st petitioner. According to respondents 6 and 7, 1st petitioner is maintaining illicit relationship with another woman and harassed their daughter both physically and mentally. He killed their daughter. According to the petitioners, the deceased committed suicide. However, the aforesaid crime was registered against the 1st petitioner for the offences punishable under Sections 498-A and 306 of IPC 9
19. As discussed supra, 6th respondent has filed the aforesaid GWOP seeking to declare her as guardian of the minor child and permanent custody of the minor child to her. The same is pending on the file of Family Court, Ranga Reddy District at L.B.Nagar. Family Court will have benefit and advantage of interacting with the petitioners, respondents 6 and 7 and minor child while deciding the said GWOP. The petitioners can as well file a petition seeking visitation rights/interim custody of the minor child during pendency of the said GWOP in the said GWOP. The said Court will consider the same and pass appropriate orders in accordance with law.
20. In the light of the aforesaid discussion, there is no abduction of the minor child by respondents 6 and 7 and according to us, the minor child is not in illegal custody of the respondents 6 and 7 as alleged by the petitioners. In fact, they are maternal grandparents of the minor child. She is with the grandparents.
21. In view of the aforesaid discussion, this writ petition is disposed of granting liberty to the petitioners and respondents 6 and 7 to pursue the proceedings in G.W.O.P.No. 40 of 2023 pending on the file of Family Court, Ranga Reddy District at L.B.Nagar, filed by 6th 10 respondent. Liberty is also granted to the petitioners to file appropriate application seeking interim custody/visitation rights of the minor child and it is for the said Court to decide the same on merits by following the procedure laid down under law.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN ____________________ JUSTICE K. SUJANA Date:06.09.2023.
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