Telangana High Court
Vivek Kumar vs The State Of Telangana on 25 April, 2024
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.34732 OF 2023
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. B.Subash, learned counsel for the petitioner, Sri Krishna Chaitanya, learned Asst.Govt.Pleader for Home appearing for respondents 1 to 3 and Smt. Bokara Sapna Reddy, learned counsel appearing for respondent No.4.
2. This Writ Petition is filed to direct the respondents 1 to 3 to locate and produce the son of the petitioner, Master Reyansh Singh, aged about 7½ years, and hand over custody of minor boy for a period of three weeks to him to develop bonding with paternal family. Facts:-
i. The marriage of the petitioner with the 4th respondent was solemnized on 11.12.2013 at Constitution Club of India, New Delhi.
ii. The said marriage was consummated.
iii. They were blessed with a son Master Reyansh Singh on 18.10.2016.2
iv. After the marriage, left for Netherlands. Later, 4th respondent, returned to Hyderabad.
v. Thereafter, disputes arose between them.
3. 4th respondent had filed a petition under Section 13(1) (ia), 24 and 27 of the Hindu Marriage Act, 1955 ( hereafter referred as, 'the HM Act') read with Section 7 of the Family Court Act,1984 vide O.P.No.1659 of 2019 against the petitioner herein seeking dissolution of the marriage dated 11.12.2013 on the ground of cruelty.
4. The petitioner herein has filed a petition under Section 9 of the HM Act, vide O.P.No.38 of 2020 seeking restitution of conjugal rights. He has also filed a petition under Section 9 of the Guardians and Wards Act, 1890 vide GWOP No.27 of 2020 seeking to declare him as guardian and grant custodian rights of the minor child. The said three petitions are pending on the file of the Judge, Additional Family Court, Ranga Reddy District at L.B.Nagar.
5. The petitioner herein had filed I.A.No.981 of 2020 in GWOP No.27 of 2020 seeking visitation rights of minor boy. Vide order dated 30.11.2020, the Family Court allowed the said petition granting visitation rights to the petitioner herein on every Sunday between 11.00 a.m. to 12.00 noon for the duration of one hour starting from the 3 month of December, 2020 during the pendency of the main petition or until further orders.
6. Learned Family Court also appointed an Advocate - Commissioner with certain conditions.
7. Challenging the said order dated 30.11.2020, 4th respondent filed a revision vide C.R.P.No.187 of 2021 and this Court vide order dated 12.03.2021 dismissed the said CRP.
8. The petitioner herein has filed an application vide I.A.No.3645 of 2021 under Section 12 of the Guardians and Wards Act, 1890 to execute the order under Section 51(e) of CPC read with Section 151 of CPC, to grant order for producing the child. Vide order dated 07.01.2022, learned Family Court granted visitation rights to the petitioner of his minor son on every working Monday and Wednesday between 03.00 P.M. to 5.00 P.M. at the Family Court premises, Ranga Reddy District, whenever the father of the boy is in India, till disposal of the main petition. Learned Family Court also directed 4th respondent to produce the child at the Family Court premises, Ranga Reddy District, to have access of the child by the father.
9. Challenging the said order, 4th respondent had filed a revision vide CRP No.291 of 2022. vide order dated 04.03.2022, this Court 4 disposed of the said CRP modifying the order in I.A.No.3645 of 2021 dated 07.01.2022, the petitioner herein was granted physical visitation rights of his minor son on every working Saturday between 1.00 P.M. to 5.00 P.M., whenever the petitioner comes to India, and whenever he is in Netherlands, the petitioner can have visitation rights of the child through video conferencing (online) as ordered by the Court below in I.A.No.981 of 2020 dated 30.11.2020.
10. The complaint of the petitioner in the present writ petition is that despite the aforesaid order dated 30.11.2020 in I.A.No.981 of 2020, order dated 07.01.2020 in I.A.No.3645 of 2021 of learned Family Court and order dated 04.03.2022 of this Court in CRP No.291 of 2022, 4th respondent is not permitting the petitioner to have the visitation rights of the minor boy and is deprived of his visitation rights granted by the learned Family Court as modified by this Court in the aforesaid CRP.
11. Perusal of the record would reveal that several proceedings are pending between the petitioner and 4th respondent. DVC No.24 of 2023, C.C.No.3092 of 2022 for the offence punishable under Section 498-A of IPC; C.C.No.2606 of 2022 for the offences punishable under Sections 354-D, 506 and 504 of IPC and C.C.No.2609 of 2023 for the 5 offences punishable under Section 323, 506 and 504 of IPC and CC No.2606 of 2022 for the offences punishable under Sections 323, 506 and 504 of IPC are pending against the petitioner herein at the instance of the 4th respondent. The 4th respondent has filed a petition under Section 125 of Cr.P.C. vide M.C.No.1491 of 2023 against the petitioner herein seeking maintenance and the same is pending.
12. The aforesaid facts would reveal that there are strained relation between the petitioner and 4th respondent.
13. 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 boy is in illegal custody of 4th respondent as alleged by the petitioner. In a matter like this, welfare of the child is paramount consideration while deciding this writ petition.
14. It is also settled law that 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 6 circumstances of a particular case where ordinary remedy provided by the law is either unavailable 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.
15. It is relevant to note that this Court in Tarannum Naaz v. The State of Telangana 1 considered several aspects and the law laid down by the Apex Court in deciding custody petitions. In paragraph No.59 of the said judgment, this Court observed that while 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, 1 MANU/TL/0956/2023 7
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. 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 custody matters. Finally, High Court has to decide whether the custody is lawful or not.
17. 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 against each other. According to the petitioner, 4th respondent is maintaining illicit relation with one Mr. Anindya Anand Bhattacharya. The said aspects are serious disputed questions of fact which we cannot decide in exercise of power under Article 226 of Constitution of India. The power to determine the same vests with the Family Court upon conducting full-fledged trial.
8
18. In the light of the aforesaid factual situation and law laid down, coming to the facts of the present case, the petitioner herein has filed the aforesaid GWOP No.27 of 2020 seeking to declare him as a guardian of the minor child and for interim custody. He has filed I.A.No.981 of 2021 in the said GWOP, seeking visitation rights. Vide order dated 30.11.2020, learned Family Court granted visitation rights to him of his minor son. Thereafter, the petitioner herein has filed a petition vide I.A.No.3645 of 2021 for execution of the order under Section 51 (e) read with Section 151 of CPC to grant order for producing the child. Vide order dated 07.01.2022, learned Family Court allowed the said petition modifying visitation rights to the petitioner herein on every working Monday and Wednesday between 3.00 p.m. to 5.00 p.m, at the Family Court premises, Ranga Reddy District, whenever the petitioner is in India, till disposal of the main petition. Learned Family Court also directed 4th respondent to produce the child at Family Court Premises, Ranga Reddy District, to have access by the father of the child.
19. Challenging the said order dated 07.01.2022, 4th respondent filed CRP No.291 of 2022. Vide order dated 04.03.2022, this Court disposed of the said CRP modifying the order passed by the Family 9 Court. The petitioner herein was granted visitation rights of his minor son on every working Saturday between 1.00 P.M. to 5.00 P.M., whenever the petitioner herein comes to India, whenever he is in Netherlands, the petitioner herein can have visitation rights of the child through video conferencing (online) as ordered by the trial Court in I.A.No.981 of 2020 dated 30.11.2020.
20. There is no dispute that while deciding the custody petitions, welfare of the minor child is paramount consideration. Admittedly, the minor boy is now aged 7 ½ years.
21. The petitioner herein has also made serious allegations against 4th respondent that she is staying with one Mr. Anindya Anand Bhattacharya. He has also made serious allegation against her character that she is a prostitute and engaged in flesh business.
22. The grievance of the petitioner in the present writ petition is that despite granting visitation rights to the petitioner herein by the Courts in various proceedings, the 4th respondent overtly violated the said orders. It is also his grievance that he had not interacted with his child both physically and through video conference for the last seven and six months respectively. The information about the change of child's school was concealed from him and the Courts in CRP 10 No.2210 of 2023 before the High Court and the Family Court. Despite warnings, service of summons for issuance of warrants, and pending contempt of court cases in both the Courts, there has been no apparent impact on 4th respondent.
23. As discussed supra, this writ of Habeas corpus and this Court has to see as to whether there is any detention much less illegal detention of the minor boy.
24. As discussed supra, this Court vide order dated 04.03.2022 in CRP No.291 of 2022 modified the order dated 07.01.2022 and the petitioner herein is granted physical visitation rights of his minor son on every working Saturday between 1.00 p.m. to 5.00 p.m. whenever he comes to India. Whenever he is in Netherlands, he can have visitation rights of the child through video conferencing (online) as ordered by the trial Court in I.A.No.981 of 2020 dated 30.11.2020.
25. The petitioner has already filed contempt cases before this Court and also Family Court against the 4th respondent alleging violation of the said orders. The said Contempt cases are pending.
26. It is the specific case of 4th respondent that she never violated any order granted either by this Court or Family Court. Even in her affidavit dated 07.04.2020, she stated that she does not have any 11 intention to disobey order of this Court. She further asserts that she has complied with the orders of the Family Court as well as this Court, but there was some communication gap in intimating the order dated 04.03.2022 in CRP No.291 of 2022 and there was some delay in implementing the said order. Therefore, she has tendered unconditional apology. If the 4th respondent violates any of the orders passed by this Court, the petitioner is at liberty to take steps against the 4th respondent.
27. As discussed supra, as the petitioner has already filed contempt case i.e. C.C.No.2350 of 2023 against the order dated 04,03.2022 in CRP No.291 of 2022, against 4th respondent before this Court and before the Family Court and while the same are pending, he cannot pursue parallel remedies by way of filing the present Writ Petition. Therefore, he cannot say that the 4th respondent is not implementing the said orders of granting visitation rights by the Family Court and this Court to him.
28. Learned counsel for the petitioner has relied on the judgment of Division Bench of Karnataka High Court in Mahesh D. Yatnalli vs. State of Karnataka 2 In the said case, there was a compromise between the spouses and they have arrived at 2 Order dated 23.05.2023 in WPHC No.34 of 2023 12 unconditional settlement. As per the said settlement, 4th respondent therein/wife was appointed as a guardian of son, whereas, father was granted visitation rights during weekends as well as custody of child during Summer and Winter. There was violation of the said order. On consideration of the facts of the said case, Division Bench of Karnataka High Court directed the 4th respondent therein/wife to handover the custody of the son to the petitioner therein/husband as per the terms of the compromise.
29. Coming to the case on hand, the facts are altogether different. The orders passed by the Family Court are modified by this Court vide order dated 04.03.2022 in CRP No.291 of 2022.
30. Learned counsel for the petitioner also placed reliance on the judgment dated 19.08.2023 of this Court in W.P.No.20129 of 2023 wherein on consideration of the facts of the case that 5th respondent i.e. wife has obtained orders by suppressing the order passed by this Court and that the minor child was a baby girl, aged 4 years one month and that mother left to USA leaving the child with her parents, this court directed the parents of the wife to comply with the orders passed by the Family Court. But the facts of the present case are altogether different.
13
31. Learned counsel for the petitioner has also relied on the principle laid down by the Apex Court in Yashita Sahu vs. State of Rajasthan 3, Gaurav Nagpal vs. Sumedha Nagpal 4, Amyra Dwivedi vs. Abhinav Dwivedi 5, Syed Sajjad Basha vs. The State of Telangana 6 and Kamala Devi vs. State of Himachal Pradesh 7. The facts therein are altogether different to the facts of the case on hand.
32, Therefore, in the light of the aforesaid discussion, we are of the considered opinion that there is no detention much less illegal detention of the minor boy by the 4th respondent. She is the mother of the minor boy aged 7 ½ years and the minor boy is pursuing studies.
33. Therefore, this writ petition is liable to be dismissed and is accordingly dismissed.
Consequently, miscellaneous petitions, if any, pending in this writ petition shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date:25.04.2024.
Vvr 3 AIR 2020 SC 577 4 AIR 2009 SC 557 5 Civil Appeal No.2067 of 2020 (Arising out of SLP© No.15215 of 2019 6 W.P.No.10259 of 2019 7 AIR 1987 HP 34