Telangana High Court
Jakkoju Mounika vs The State Of Telangana on 8 February, 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.33190 OF 2023
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. P.Devender, learned counsel for the petitioner, Sri Godugu Mallesham, learned Assistant Government Pleader for respondent Nos.1 to 5 and Sri Mandapati Muralikrishna, learned counsel for respondents Nos.6 to 8.
2. This writ petition is filed to direct the respondents-Police to produce the detenu by name Ruthvik, aged about 8 ½ years, only son of the petitioner and respondent No.6 before the Court.
3. In the present writ affidavit, the petitioner contended that her marriage with the 6th respondent was performed on 17.05.2014 at Narsampet, Warangal District. It is an arranged marriage. They were blessed with a baby boy by name Ruthvik on 18.04.2015. Till 10.12.2016, they lived happily. Thereafter disputes arose between them. On 10.12.2016 she lodged a complaint against him with Ameenpur Police Station. She also filed a complaint with Duggondi Police Station. On receipt of the same, the police conducted 2 counseling, but the 6th respondent did not change his attitude. The respondent No.6 got issued legal notice dated 08.10.2018 to the petitioner inviting her to join conjugal life. She had issued reply dated 12.10.2018 and the 6th respondent also sent rejoinder, dated 19.11.2018 to the said reply. Thereafter, 6th respondent approached parents of the petitioner and a panchayath was held on 26.11.2020 at Narsampet. In the panchayath, the 6th respondent and his parents assured that they will look after the petitioner well and on said assurance, the petitioner joined matrimonial home.
4. The 6th respondent and his family members harassed the petitioner by demanding dowry, beating her and necked her out of the house. 6th respondent and his family members also detained her son illegally and also shifted her son to various places. In this regard, she came to know that the 6th respondent had filed a writ petition vide W.P.No.42012 of 2022 with false and frivolous allegations. In the said case this Court directed the police not to interfere. In view of the said direction, the police are not taking action against illegal detention of her son.
5. Her son is 8½ years old and studying 3rd Class. He needs mother's care. The 6th respondent and his family members illegally 3 detained her son and not informing his whereabouts. 6th respondent and his family members forced her to leave the premises leaving her son. When she refused to leave her son, they abused her in filthy language. Now she is living with her parents. She apprehends danger to her life and her child's life in the hands of 6th respondent and his family members. They are not allowing her to see her son and did not inform her about his well-being.
6. On the other hand, 6th respondent filed counter, denying the allegations made by the petitioner, admitting marriage and birth of son. In his notice, dated 08.10.2018 he invited her to join matrimonial life. There were mediations took place between both the families but in vain. She filed a false complaint against him and his family members. As the respondent Nos.4 and 5 are interfering with his family matters, he filed W.P.No.42012 of 2022 wherein this Court vide order dated 18.11.2022 directed the police not to interfere. She did not contest the said writ petition. The petitioner also filed a complaint, dated 25.11.2022 at Duggondi Police Station who in turn registered a case in Cr.No. 158 of 2022 for the offences punishable under Sections 498-A IPC, Sections 3 and 4 of the Dowry Prohibition 4 Act. After completion of investigation, a charge sheet was filed and the same was numbered as CC No. 784 of 2022.
7. He further contends that he has filed Crl.P.No.2563 of 2023 to quash the proceedings in the said CC and this Court passed an order dispensing with attendance of A.3 to A.6 in the above CC. They never strained the relationship as alleged by the petitioner and all such allegations are a matter of trial. They never stopped her from visiting the child and showing her love and affection towards the child. Even in the recent past, she had visited the child at their residence and spent some time with him, however, the child didn't evince any interest in spending time with his mother. It is the petitioner who left him leaving the child to his custody, more precisely on 14.11.2022 and thereafter she tried to take custody of child illegally by filing police complaints. The boy is studying 3rd Class in Academic Heights School at Ameenapur and is about to complete the same in next two months. Even earlier, the petitioner took the child to her native and spoiled his education, for which the school authorities "Platinum Jubilee High School, Warangal" issued a letter dated 31.10.2018.
8. Both the learned counsel extensively made their submissions referring to the pleadings.
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9. Learned Assistant Govt.Pleader, has submitted written instructions of the 5th respondent wherein it is stated that the petitioner did not lodge any complaint against the respondents 6 to 8 complaining illegal detention of her minor son. The respondents 6 to 8 have earlier filed WP.No 42012 of 2022 before this Court stating that the police officials are interfering with their life and liberty and matrimonial disputes between 6th respondent and Petitioner herein. Sub-Inspector of Police, Ameenmpur Police Station has filed written instructions dated. 18.11.2022 stating that the petitioner herein lodged a complaint with the Station House Officer, Ameenpur Police Station, on 13.11.2022 alleging that her husband and in-laws have harassed her and did not allow her to go outside the house and locked the door. She dialed phone helpline No.100 and requested to take necessary action. On that, GD entry was made and enquiry was conducted and petitioner's husband was called to the Police Station for the purpose of enquiry. Instead of co-operating with the police during enquiry, he filed W.P.No 42012/2022 wherein this Court vide order dated 18.11.2022 directed the Ameenpur Police not to interfere in matrimonial disputes and child custody disputes between the unofficial respondents and the petitioner herein until further orders. 6 By virtue of the said interim order, the Ameenpur Police informed the petitioner to pursue her remedies before the concerned Court.
10. The aforesaid stated facts would reveal that the marriage of the petitioner with the 6th respondent took place on 17.05.2014. It is an arranged marriage. They were blessed with a baby boy by name Ruthvik on 18.04.2015. According to the petitioner, they lived happily till 10.12.2016 i.e. about 2½ years after marriage. Thereafter, disputes arose between them. They narrated the said disputes in writ affidavit and counter affidavit etc. The petitioner has lodged complaints with the police against the respondent and his family members. The 6th respondent also filed W.P.No.42012 of 2022 and obtained interim direction from the Court preventing the police from interfering with his family issues. The minor boy is aged about 8½ years. He is studying 3rd class in Academic Heights School at Ameenapur. Admittedly, the minor boy is in the custody of 6th respondent. Both the petitioner and the 6th respondent are making allegations against each other.
11. Referring the said disputes in detail are not required to decide the present writ of Habeas Corpus. According to the petitioner, the 6th respondent and his family members harassed, beat and necked 7 her out from their matrimonial home without giving the boy to her. According to him, she left the home leaving the boy with him without any reason. CC No.784 of 2022 is pending against the 6th respondent basing on the complaint lodged by the petitioner for the offences punishable under Sections 498-A of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The petitioner contends that she apprehends danger to her son in the hands of 6th respondent and his family members.
Findings of the Court:-
12. 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 6th respondent as alleged by the petitioner. In a matter like this, welfare of the child is paramount consideration while deciding this writ petition.
13. 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 8 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.
14. It is relevant to note that this Court in Tarannum Naaz v. The State of Telangana 1 considered the several aspects and law laid down by the Apex Court in deciding the 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, 1 MANU/TL/0956/2023 9
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.
15. 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 straitjacket formula in deciding the custody matters. Finally, the High Court has to decide whether the custody is lawful or not.
16. 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 6th respondent against each other. The said aspects cannot be decided by this Court in the present writ petition in exercise of power under Article 226 of Constitution of India.
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17. Admittedly, the boy is aged about 8½ years. It is tender age. He needs care and support of the mother. Welfare of minor children is paramount consideration while deciding custody petitions.
18. As discussed supra, in the present writ petition, we have to decide as to whether there is detention much less illegal detention of minor child by 6th respondent. Admittedly, the boy is in the custody of 6th respondent, his father since 2022. She has lodged two complaints in the year 2022 and 6th respondent filed W.P.No.42012 of 2022. This Court directed the police not to interfere in matrimonial disputes. The petitioner herein except stating that 6th respondent necked her out of his home, did not mention the date, time and other particulars. She has filed the present writ petition only on 06.12.2023. Boy is studying 3rd class in Academic Heights School at Ameenapur and disturbing him in the end of academic year is not proper. Moreover, 6th respondent and his parents are taking care of the minor boy. Therefore, we are of the considered opinion that there is no detention much less illegal detention of the minor child by 6th respondent. The petitioner has to approach jurisdictional Family Court seeking custody of minor child by filing appropriate application and Family Court will have benefit of considering the material on record, interacting with the parties and the 11 minor boy and decide the said petition after conducting full-fledged trial.
19. In view of the aforesaid discussion, this writ petition is disposed of holding that :-
i. The petitioner is not entitled for custody of the minor child i.e. Ruthvik aged about 8 ½ years and he is not in illegal custody of 6th respondent as alleged by the petitioner. ii. Liberty is granted to the petitioner to file appropriate application in terms of Section 7 of the Guardians and Wards Act, seeking to declare her as a guardian, appropriate application seeking custody of the minor boy before the juridictional Family Court.
iii. Liberty is also granted to the parties to raise all the contentions and grounds raised in the present writ petition before the Family Court and it is for the said Court to consider the same and pass appropriate orders in accordance with law. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date:08.02.2024.
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