Telangana High Court
Smt.Burra Anoosha vs The State Of Telangana on 20 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.2400 of 2024
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. K. Pradeep Reddy, learned counsel for the petitioner, Sri Godugu Mallesham, learned Asst. Govt.Pleader for respondents 1 to 3 and Sri T. Surya Satish, learned counsel appearing for 4th respondent.
2. This writ petition is filed seeking a direction to the respondents 2 and 3 to produce minor child by name Burra Srikruthi, aged about 8 years, daughter of the petitioner, from the unlawful custody of 4th respondent, her natural father, before the Court and to hand over the child to the petitioner.
Facts:-
i. The marriage of the petitioner with the respondent was performed on 22.08.2013 as per the Hindu rites and customs. ii. It is an arranged marriage.2
iii. They blessed with a daughter namely 'Burra Srikruthi' on 29.01.2015 and a son namely 'Burra Jayisnu Charan' on 10.07.2022.
iv. Right from the date of marriage, 4th respondent and his family members started harassing her demanding with a demand of additional dowry.
v. On knowing that she gave birth to female child, 4th respondent and his family members came to hospital after 5 days of the birth of her daughter and abused her for not giving birth to male child.
vi. Second time, she gave birth to a male child namely 'Burra Jayisnu Charan' on 10.07.2022, even then, there was no change in their attitude.
vii. In the month of April 2023, 4th respondent dropped her at her parents' house along with minor son and took away her minor daughter 'Burra Srikruthi' along with him threatening to see her end if any steps are taken against him. However, due to the intervention of the elders, he has handed over her minor daughter back to her custody.
3viii. 4th respondent used to state that he is having illicit affair with his younger brother's wife namely Padma and her children belongs to him. He also used to say that he is not having any feeling on her.
ix. On 09.11.2019, 4th respondent and the said Padma threatened to kill her and her minor daughter by drowning them in water if she did not accept for customary divorce. He forcefully made her to write a suicide letter. They tied a saree to the ceiling fan and threatened her to hang herself, otherwise they kill her minor daughter. On her hues and cries, the neighbors forcefully opened the door, shifted her to hospital and thereby saved her. The 4th respondent along with his family members managed the doctors and took her back to Hyderabad.
x. She has also filed a petition vide M.C.No.34 of 2023 before the Family Court, at Karimanagar against 4th respondent seeking maintenance of Rs.35,000/- for herself, Rs.15,000/- each for her minor daughter and son i.e. petitioners 2 and 3 therein, monthly rent of Rs.10,000/-. The same is pending.
xi. On 03.09.2023, 4th respondent along with one Burra Prashanth came to her parents' house, beat her and her family members 4 and abused them in filthy language. She lodged a complaint against 4th respondent and his accomplices before the police, Vemulwada Town Police Station who in turn registered the same as FIR No.400 of 2023 for the offences punishable under sections 498A, 448, 324 and 506 read with 34 IPC. xii. Her minor daughter 'Burra Srikruthi' is studying at Kids Convent High School at Vemulwada. On 24.01.2024, when she went to Warangal for the purpose of job interview, she received a phone call from her father stating that at about 8:40 a.m. when his minor daughter i.e., 'Burra Srikruthi' was on her way to school in auto rickshaw, some unknown persons along with 4th respondent, obstructed the auto rickshaw near Harihara Function Hall, Vemulawada Town and took away her daughter forcebly.
xiii. On enquiry, the auto driver by name Pittal Thirupati, informed her that the said persons had informed that her husband and other persons took her daughter in a car bearing No.AP 20 AN 8888 and he showed photographs of the said car taken by him. xiv. On information given by the auto driver to her father about the said incident, he approached 3rd respondent on 24.01.2024 and 5 lodged a complaint with them. In spite of receiving the said complaint, the Police did not register the same but falsely stating that they are investigating the same. xv. The petitioner searched for her minor daughter on 24.01.2024 and approached the Police again on 25.01.2024 for which 3rd respondent again asked to lodge a complaint neglecting the earlier complaint dated 24.01.2024. She again gave a complaint which was registered as a case in Cr.No.47 of 2024 dated 25.01.2024 for the offence under section 363 IPC against 4th respondent only. The police are not investigating the case, under the influence of 4th respondent.
xvi. The apprehension of the petitioner is that he may kill her minor daughter as he previously threatened her so.
xvii. Therefore, according to the petitioner, her minor daughter is in illegal custody of 4th respondent and she sought to issue a direction to the respondents to produce her minor daughter by name "Burra Srikruthi."
6
3. Denying the said allegations and admitting the marriage and children, 4th respondent filed counter contending as follows:-
i. His daughter is studying in Delhi Public School, Miyapur since 1st Class and now she is in 4th Class. To create false record, the petitioner admitted the minor girl in Kids Convent, Vemulawada on 25.09.2023 without transfer certificate from the said Delhi Public School.
ii. He took away the minor girl with prior intimation to the petitioner and her sister by name Kaira Akshara and also to 3rd respondent. He also informed to Superintendent of Police, Rajanna Sircilla District. He never kidnapped his daughter. iii. He never demanded additional dowry.
iv. He is very happy for being blessed with a girl child who is more attached to him.
v. He is working from home since 2020 and taking care of his daughter left by the petitioner.
vi. When the petitioner was pregnant for the second time, she left to her parents' house three months before delivery and came back four months after delivery and during that period, his daughter stayed in his sister's house without any complaint. 7 vii. His daughter is studying in the school of her interest and he is providing her all comforts. The Petitioner suddenly changed school of the child against her wish.
viii. The petitioner attempted to commit suicide thrice in front of the minor daughter and disturbed his daughter a lot. ix. His daughter has been suffering from hypothyroidism, gastroenteritis and has been under treatment at Rainbow Hospital, Banjara Hills.
x. The Petitioner took her in August, 2023 and had shown to some doctor at Vemulawada, which aggravated the child's illness. xi. In the month of April, 2023, the Petitioner had gone to her parent's house, but he brought his daughter along with him as she wished to stay with him. Since April, 2023, his daughter has been staying with him. In August, 2023, on the eve of Rakhi festival on the demand of the petitioner, he left his daughter at his in-laws house stating that he would come back in a day or two and pick her up. Thereafter, the petitioner and her family members never allowed him to meet his daughter and filed a false complaint against him and his other brothers on 8 03.09.2023 which is registered as a case vide FIR No.400 of 2023.
xii. He took her to hospital when she tried to commit suicide. She also wrote in a notebook the details of money spent by him towards her treatment at Omni hospital when she tried to commit suicide in November 2019.
xiii. He is not aware of M.C.No.34 of 2023 filed by the petitioner before the learned Family Court at Karimnagar since no notice was served on him till date.
xiv. His daughter also explained mental agony which she was going through at Vemulawada because of making her to sit and work in kirana shop which is explained to this Court during the interaction on the last date of hearing.
xv. A false complaint was lodged on 25.01.2024 with 3rd respondent and got another FIR No.47 of 2024 registered against him under section 363 of IPC.
xvi. He, being the natural guardian and father of the minor child, he is more concerned with her welfare and future.
4. Opposing the said averments of the counter filed by 4th respondent, the petitioner herein filed reply contending as follows:-:- 9
i. When the 4th respondent abducted her daughter while she was on the way to school on 24.01.2024. 4th respondent and his family members switched off their mobiles and made her run around the Police Station and other places along with her son aged about 18 months and her old aged parents. ii. He is working as a software Engineer and staying at Sircilla. In Crl.P.No.12301 of 2023 filed by him under Section 482 of CrPC, he mentioned his residential address as Sircilla. But in the counter, he mentioned some unknown address at Hyderabad, only to mislead the Court.
iii. He cannot take care of her daughter's day to day needs. iv. Her daughter needs medication for ailments for which her daughter adjusts with herself only.
v. He left them since April 2023 but portraying that he has concern about his daughter.
vi. Since he left them mercilessly at her parents home and shifted to Sircilla from Hyderabad, she has admitted her daughter at Vemulawada in a good school. He never objected for joining her daughter in the said school.10
vii. Instead of contesting M.C.No.34 of 2023 filed by her, 4th respondent illegally took away her daughter. viii. Even the notice sent to the 4th respondent in the present writ petition was returned as no such person in the said address. This itself clearly shows that his acts are illegal. ix. He did not inform to anybody while taking away her daughter.
CC footages of locality clearly describes his unlawful act of abducting her daughter. The contention of 4th respondent that he informed to 3rd respondent-Superintendent of Police clearly shows that he planned to kidnap her daughter. x. Her daughter is regularly going to school and is now in 4th class and there are no complaints.
xi. When Court permitted her to interact with her for five minutes and during the said five minutes, her daughter was under fear and continuously cried stating that she wishes to come with her. xii. On 09.10.2021, 4th respondent beat her and threatened to bring additional dowry and made her to write the expenses incurred towards her from the date of marriage and now using the said note to his benefit.11
xiii. 4th respondent in Crl.P.No.1301 of 2024 filed on 05.02.2024 mentioned his residential address as Sircilla and now in the present counter he mentioned his address as Hyderabad which is within a week.
xiv. She being post graduate of M.Tech in JNTU, aware of the needs of a minor daughter.
5. During the course of hearing learned counsel on both side reiterated the aforesaid contentions.
Findings of the Court:-
6. 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 child is in illegal custody of 4th respondent as alleged by the petitioner. Welfare of the minor child is paramount consideration while deciding this writ petition.
7. 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 12 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.
8. 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 13
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.
9. 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 High Court has to decide whether the custody is lawful or not.
10. 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 matrimonial disputes between the parties. According to the petitioner, 4th respondent abducted the minor girl while she was on her way to school and she is in his illegal custody. He is demanding additional dowry to return the minor girl. Due to the intervention of the elders, he handed over her minor daughter back to her. There is 14 also allegation against him that he along with his brother's wife by name Padma threatened her to kill her and her minor daughter if she did not accept for customary divorce. They forcefully made her to write a suicide letter. They forced her to commit suicide by hanging herself to a ceiling fan. There are also criminal cases pending against him. He is maintaining illicit relationship with his brother's wife 'Padma'.
11. On the other hand, 4th respondent alleges that his daughter is not in his illegal custody as alleged by the petitioner. He took away his daughter with prior intimation to the petitioner. He never demanded for additional dowry. He never forced her to commit suicide. His daughter wishes to stay with him. His daughter suffering from ailments and he is providing treatment to her in Rainbow Hospital, Banjara Hills. He dropped her daughter at her parental home on her request on the occasion of Rakhi festival but not to get additional dowry.
12. The aforesaid allegations made against each other are very serious disputed questions of fact which we cannot decide in exercise of power under Article 226 of Constitution of India. It is the Family 15 Court which has power to consider the same on conducting full- fledged trial.
Even according to 4th respondent, he took the minor girl from auto informing the same to the petitioner's sister who spoke to the minor girl over phone. He has also informed the said fact to Superintendent of Police concerned. As discusses supra, 4th respondent cannot take the minor child from auto while she was going to school. If he wants custody of the child, he has to take steps in accordance with law. He has to file appropriate application seeking custody/visitation rights before Family Court which will have the benefit of interacting with the parties, child and pass appropriate orders.
13. Admittedly, the minor girl is 8 years. It is a tender age. She needs care and support of mother. The minor girl needs medication. The minor girl will be comfortable with the mother. According to 4th respondent, he is staying in his sister's house at Hyderabad and his sister is taking care of the minor girl. But his sister cannot substitute mother of the minor girl. In normal circumstances, the mother is entitled for custody of the children. Welfare of minor children is paramount consideration while deciding custody petitions. 16
14. In the light of the aforesaid discussion, we are of the considered opinion that the minor girl should be with the petitioner, the mother. 4th respondent has to appear in M.C.No.34 of 2023 and cooperate with the learned Magistrate in deciding the same.
15. It is relevant to note that we have interacted with the petitioner, 4th respondent and minor girl. During interaction, the minor girl informed us that she is willing to continue her studies in Delhi Public School and she is comfortable there. Admittedly, 4th respondent is staying with his married sister. During the course of hearing, Sri K.Pradeep Reddy, learned counsel for the petitioner, on instructions, submitted that the petitioner will shift to Hyderabad, stay at Hyderabad and continue the minor child in Delhi Public School. She will also provide treatment to the minor girl.
16. In view of the aforesaid discussion, this writ petition is disposed of holding that :-
i. The petitioner, natural mother, is entitled for custody of the minor girl i.e. Burra Srikruthi, aged about 8 years. 17 ii. 4th respondent is directed to hand over the minor child by name 'Burra Srikruthi', aged 8 years, to the petitioner herein within one week from today.
iii. Liberty is granted to 4th respondent to file appropriate application in terms of Section 7 of the Guardians and Wards Act, seeking to declare him as a guardian, custody and visitation rights of minor girl before the juridictional Family Court which will have the benefit of interacting with the parties and minor child and consider the entire material on record, other relevant factors on the subject matter and decide the said application. iv. 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. v. 4th respondent shall appear in M.C.No.34 of 2023 pending in Family Court, Karimnagar on the next date of hearing and cooperate with the Family Court in early disposal of the same, irrespective of service of notice. Learned Family Court shall make an endearvour to decide the said M.C.No.34 of 2023 as 18 expeditiously as possible considering the fact that the petitioner has two children aged 8 years and 18 month.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date:20.02.2024 Vvr