Telangana High Court
Sara Fatima vs The State Of Telangana on 27 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, Juvvadi Sridevi
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.2263 of 2024
ORDER:
(per Hon'ble Sri Justice K. Lakshman) Heard Sri Mohd. Azhar, learned counsel for the petitioner, Sri Godugu Mallesham, learned Assistant Government Pleader representing learned Additional Advocate General appearing for respondent Nos.1 to 5 and Ms. Seema Yasmeen, learned counsel representing Mr. C. Vikram Chandra, learned counsel appearing for respondent Nos.6 to 8.
2. The marriage of the petitioner with respondent No.6 was performed on 01.05.2010. Thereafter, petitioner converted from Hinduism to Islam. They blessed with two children on 14.02.2011 and 23.04.2014. They are now aged 14 years and 10 years respectively. According to the petitioner, the children are in the illegal custody of respondent No.6 from July, 2018. Therefore, she has filed a writ petition vide W.P.No.22040 of 2018. This 2 W.P.No.2263 of 2024 Court vide order dated 01.08.2018, observing the fact that there are serious disputes between the petitioner and respondent No.6, he has taken away the minor children to Dubai and that petitioner herein has not raised a specific plea that respondent No.6 herein has forcibly taken away the children from her custody, held that the action of respondent No.6 in taking the children to Dubai along with him cannot be per se termed as either illegal or unlawful or that he has illegally detained the two minor children. The dispute between the parties primarily pertains to the custody of minor children. Such a dispute can only be resolved through the competent Court of law. With the said observation, this Court dismissed the said writ petition granting liberty to the petitioner to avail appropriate remedies as per law seeking custody of the minor children. According to the petitioner, she has lodged complaints/representations to several authorities. She has narrated the same in the writ affidavit. However, she has filed an application under Sections 10 and 25 of the Guardians and Wards 3 W.P.No.2263 of 2024 Act vide G.W.O.P.No.61 of 2022 seeking custody of the minor children. The said O.P. is pending.
3. According to the learned counsel for petitioner, respondent No.6 is leaving one country after another along with the children and petitioner is not in a position to trace out the address of respondent No.6 and children. He is intentionally avoiding notice in G.W.O.P., therefore, the same is pending. It is coming for his appearance.
4. She has filed three interlocutory applications in the said OP i.e., (i) seeking visitation rights, (ii) restraining 6th respondent from leaving the country with the children and (iii) to deposit original passports of respondent No.6 and children in the Family Court. The said three applications and the aforesaid G.W.O.P. are pending. She is working in Dubai and is earning an amount of Rs.2,00,000/- per month. The children are minor i.e., aged about 14 years and 10 years and being mother, she is entitled for custody of children. In a matter like this, welfare of children is paramount consideration. Thus, 4 W.P.No.2263 of 2024 according to the petitioner, the minor children are in the illegal custody of respondent No.6. Sometimes, respondent No.6 is moving away by keeping the children in the custody of respondent Nos.7 and 8 i.e., his father and sister. With the said submissions, she filed the present writ petition.
5. Respondent Nos.6, 7 and 8 have filed separate counters. Respondent No.6 made specific allegation against the petitioner herein that she is maintaining illegal relationship with one Ramesh and in proof of it, he filed e-mails, photographs, etc. Respondent Nos.7 and 8 have filed counters contending that they have nothing to do with the internal disputes/matrimonial disputes between the petitioner and respondent No.6.
6. Sri Godugu Mallesham, learned Assistant Government Pleader submitted written instructions of Sub-Inspector of Police, Balapur Police Station wherein he has stated that on receipt of complaint dated 25.11.2023 from the petitioner, he made G.D. entry and 5 W.P.No.2263 of 2024 contacted respondent No.6, who informed him that the children are in his custody and they are studying in Akshara International School, Yapral, Hyderabad. He has also taken the photograph of children along with respondent No.6 and closed the said complaint.
7. The aforesaid facts would reveal that the children are in the custody of respondent No.6/father from July, 2018. The said fact was admitted by the writ petitioner in the writ affidavit itself. Pursuant to the liberty granted by this Court vide order dated 01.08.2018 in W.P.No.22040 of 2018, she has filed G.W.O.P.No.61 of 2022 seeking custody of the children and the said O.P. is pending before the Family Court, Ranga Reddy District at L.B. Nagar. It is posted to 12.03.2024 for appearance of respondent No.6. Admittedly, the three interlocutory applications filed by her are pending. According to the petitioner, respondent No.6 is intentionally avoiding notice and is not entering appearance in the aforesaid O.P. 6 W.P.No.2263 of 2024
8. In the light of the aforesaid serious allegations against each other and also considering the fact that the disputes between the petitioner and respondent No.6 are matrimonial disputes and the children are minor, we have interacted with the petitioner, respondent No.6 and children separately. During the interaction, petitioner informed us that she is staying in Dubai and is working in a Company. She is trying her level best to get her children and to see them. Respondent No.6 is moving from one country to other, therefore, she is not in a position to see the children, and thus, deprived of visitation rights.
9. During the interaction, respondent No.6 informed us that he is working in Australia and at present, he is residing in Hyderabad i.e. H.No.1-4-161/8A, Akash Enclave, Street No.10, Raja Rajeshwari Colony, Yapral, Sainikpuri, Secunderabad. He has joined the children in Akshara International School, Yapral. It is further informed that he is not moving from India to any other 7 W.P.No.2263 of 2024 country including Australia. He is working from home. If his presence is required in any other country including Australia, he would obtain prior permission from the Family Court in G.W.O.P. and leave the country.
10. Proceedings in Writ of Habeas Corpus are summary in nature. We have to decide the same basing on the affidavits filed by the parties. In a Writ of Habeas Corpus, we have to examine as to whether there is any detention, much less illegal detention, of the minor children.
11. Admittedly, the children are minor, aged about 14 and 10 years. Petitioner, being the mother of the children, is entitled for their custody, visitation rights, etc. In a matter like this, welfare of the minor children is paramount consideration.
12. In the order dated 09.08.2023 in W.P.Nos.46148 of 2022 and 8087 of 2023, in paragraph Nos.51 and 52, this Court held as follows:
8W.P.No.2263 of 2024
51. The sum and substance of the aforesaid judgments is as follows:-
i. Proceedings in writ of Habeas Corpus are summary in nature.
ii. Writ of Habeas Corpus is maintainable in child custody matters.
iii. Welfare of minor is the paramount consideration while deciding matters with regard to child custody and it will prevail over Principle of Comity, Principle of First Strike.
iv. Since the proceedings in writ of Habeas Corpus are summary in nature, the same have to be decided basing on the affidavits filed by the parties. v. Each case has to be examined basing on its own facts and circumstances and on case to case basis.
52. Habeas Corpus proceedings is 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.
13. In the light of the aforesaid discussion, in a Writ of Habeas Corpus, we cannot decide complicated/disputed questions of facts like allegation of respondent No.6 that 9 W.P.No.2263 of 2024 the petitioner is maintaining illicit relationship with one Ramesh, that respondent No.6 is moving from one country to another only to deprive the petitioner of visitation rights and custody of the minor children. It is for the Family Court to decide the same. As stated supra, petitioner has already filed G.W.O.P. and the same is pending, therefore, she cannot pursue parallel remedies.
14. In the light of the aforesaid discussion, we are of the considered view that the minor children are not in illegal custody of respondent No.6 as alleged by the petitioner herein. Respondent No.6 is father and the children are in his custody from July, 2018 onwards.
15. In the light of the aforesaid discussion, this Writ Petition is disposed of, directing respondent No.6 to appear before the I Additional Family Court, Ranga Reddy District at L.B. Nagar in G.W.O.P.No.61 of 2022 on 12.03.2024 without fail and cooperate with the Family Court in disposal of the said GWOP. The learned Family Court shall decide the three interlocutory applications 10 W.P.No.2263 of 2024 filed by the petitioner as expeditiously as possible, preferably within a period of one (1) month from today. The learned Family Court shall decide the said G.W.O.P.No.61 of 2022 also by conducting day-to-day proceedings strictly in accordance with law, as expeditiously as possible, preferably within a period of six (6) months from today. Liberty is granted to the petitioner and respondent No.6 to raise all the contentions and pleas which are raised in the present writ petition, before the Family Court and it is for the Family Court to consider the same. No costs.
As a sequel, the miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
____________________ K. LAKSHMAN, J ______________________ JUVVADI SRIDEVI, J February 27, 2024 N.B.:
Issue C.C. in two days. B/o. AJR/REV