Telangana High Court
Smt. B.Vimala K.Vimala vs The State Of Telangana on 29 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.2863 of 2024
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. G.Anil Kumar, learned counsel for the petitioner, Sri G.Mallesham, learned Assistant Government Pleader for respondents 1 to 4 and Sri B. Anil Kumar Yadav, learned counsel appearing for 5th respondent.
2. This writ petition is filed seeking a direction to the official respondents to produce minor children of the petitioner/the natural mother, by names B.Vihansi, aged 5 years and B.Parthiv, aged 4 years from the unlawful custody of 5th respondent/the natural father so as to enable the petitioner to confirm as to whether her children are alive or not and hand over them to the petitioner.
Facts:-
i. Marriage of the petitioner was performed with 5th respondent was performed on 06.05.2017 as per hindu rites and customs. ii. At the time of marriage, petitioner's parents gave cash, gold ornaments and other household articles including a house plot 2 towards dowry on demand of 5th respondent and his family members.
iii. Since marriage, 5th respondent herein harassed her physically and mentally for want of additional dowry. iv. There was no change in the attitude and behavior of 5th respondent.
v. They blessed with one female child on 06.08.2018 and one male child on 04.08.2019.
vi. Due to 5th respondent's frequent visits, nuisance created by him at her work place in front of her colleague and friends demanding money, her employer removed her from job. vii. In the month of June, 2023, 5th respondent beat her indiscriminately and necked her out by keeping children with him.
viii. Having no other go, she went to her parents house at Waddepally, Hanamkoonda District.
ix. When she tried to get back her children, 5th respondent not allowed her to enter into the house and see the children and threatened her.3
x. 5th respondent filed F.CO.P.No.891 of 2023 before the Judge, Family Court at Kalpataru, Hyderabad seeking divorce with false allegations. He also filed G.W.O.P.No. 890 of 2023 before the same Court, to declare him as sole guardian and to retain the children with him permanently.
xi. 5th respondent started threatening her to cause harm to her children if she does not give divorce to him unconditionally. Unable to bear the harassment, she lodged a complaint before the Women Police Station, Warangal, who in turn registered a case in Cr.No.242 of 2023 on 04.09.2023 against 5th respondent and his parents for the offences punishable under Sections 498- A and 506 of 1.P.C. and Sections 3 and 4 of the Dowry Prohibition Act.
xii. The petitioner has no source of income. She is taking shelter at her parents house as such she has filed Tr.C.M.P.No. 416 of 2023 before this Court seeking transfer of GWOP No. 890 of 2023 now pending on the file of the Judge, Family Court at Kalpataru, Hyderabad to the court of learned Judge, Family Court at Hanamakonda or Warangal, to try the same. This Court 4 vide order dated 13.10.2023 pleased to grant interim stay of all further proceedings in GWOP No. 890 of 2023. xiii. She apprehends danger to the life of her children. She lodged a complaint dated 23.01.2024 with 3rd respondent to provide protection to her children. Having received the complaint, 3rd respondent did not take any action.
xiv. With the said submissions, the petitioner sought to allow the writ petition.
3. 5th respondent filed counter denying the allegations made by the petitioner and contended that:-
i. Instead of filing a petition for visitation of minor children in the said GWOP No.890 of 2023, the petitioner filed this writ petition only to harass the respondents.
ii. The Petitioner lodged a complaint which is registered as a case in Cr.No.242 of 2023 for the offences punishable under Section 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act against 5th respondent and his family members as a counterblast only after receipt of intimation about filing of FCOP 891 of 2023 and GWOP No. 890 of 2023 filed by 5th respondent. On completion of investigation, the Investigating 5 Officer has laid charge sheet against 5th respondent and others and the same was taken on file. as CC NO. 2162 of 2023 and the same is pending.
iii. There is no demand of dowry and there was no physical and mental harassment by 5th respondent as alleged by the petitioner.
iv. She is highly educated and working as Eco Technician. v. Under the guise of training, the petitioner used to go to Vijayawada with relatives and spend lavishly and 5th respondent has to make an enquiry for her with the office staff and that was the only time, he visited her office. He is not at all responsible for removing her from employment.
vi. The petitioner voluntarily left the matrimonial home leaving behind the two minor children with 5th respondent. Despite his request, she did not turn up.
vii. The Golconda Police also conducted counseling, but she did not turn up. She also complained to Women and Child Welfare office at Ameerpet, the same was later closed. viii. 5th respondent filed FCOP No. 891 of 2023 and GWOP No. 890 of 2023.6
ix. Mother of 5th respondent filed DVC No.363 of 2023 before IV Metropolitan Magistrate at Kalpataru, Hyderabad, subsequently the same was sent to the Protection Office on 08.08.2023 vide DIR No. 337/2023/DV/2023 wherein petitioner did not give any response.
x. The petitioner along with henchmen came to the house of 5th respondent on 24.01.2024 without permission of neither Family Court at Hyderabad nor Habeeb Nagar police, abused him and tried to take two minor children from the parents of respondent forcibly. Then he called dial 100 and reported the illegal entry of the petitioner, they sent two constables to his house and the petitioner and her hence men ran away.
xi. 5th respondent also submitted representation to the Commissioner of Police, Additional Commissioner of Police and the Deputy Commissioner of Police, Hyderabad by Speed Post on 01.02.2024 to take action on the complaint lodged by mother of 5th respondent and till date no action is been taken by the said Police authorities.
4. During the course of hearing learned counsel on both side reiterated the aforesaid contentions.
7Findings of the Court:-
5. 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 children are in illegal custody of 5th respondent as alleged by the petitioner. Welfare of the minor children is paramount consideration while deciding this writ petition.
6. 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 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 8 detention of a minor child or parents and others is illegal without any authority of law.
7. It is relevant to note that in Tarannum Naaz v. The State of Telangana 1 this Court considered 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,
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.
8. 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 1 MANU/TL/0956/2023 9 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.
9. Coming to the facts of the present case, according to the petitioner, 5th respondent detained the minor children, they are in his illegal custody and he is not allowing her to see the children.
10. According to 5th respondent, the petitioner voluntarily left matrimonial home in June, 2023 leaving behind the minor children with him. Despite his request, she did not turn up. Even according to the petitioner, minor children are with 5th respondent from June, 2023 onwards. She has mentioned the said fact in paragraph No.4 of the writ affidavit. It is also not in dispute that 5th respondent has already filed FCOP No.891 of 2023 against the petitioner herein seeking dissolution of marriage on the ground of cruelty. He has also filed GWOP No.890 of 2023 to declare him as sole guardian and permanent custody of the minor children. It is also not in dispute that the petitioner has lodged a complaint with Women Police Station, 10 Warangal, who in turn registered a case in Cr.No.242 of 2023 against 5th respondent and his parents for the offences punishable under Sections 498-A and 506 of 1.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. On completion of investigation, the Investigating Officer laid charge sheet against 5th respondent and others and the same was taken on file vide C.C.No.2162 of 2023. It is also not in dispute that the petitioner herein has filed Tr.C.M.P.No. 416 of 2023 to transfer GWOP No. 890 of 2023 now pending on the file of the Judge, Family Court at Kalpataru, Hyderabad to the court of learned Judge, Family Court at Hanamakonda or Warangal, to try the same. This Court though initially vide interim order dated 13.10.2023 granted stay of all further proceedings in GWOP No.890 of 2023, the said Tr.CMP was dismissed by this Court vide order dated 02.02.2024. The petitioner has lodged a complaint dated 23.01.2024 with 3rd respondent to provide police protection to her children. Counseling was also conducted. She has also lodged a complaint with Women and Child Welfare Officials at Ameerpet, Hyderabad which was closed.
11. The aforesaid facts would reveal that there are serious matrimonial disputes between the petitioner and 5th respondent. 5th 11 respondent has also filed the aforesaid FCOP No.891 of 2023 seeking dissolution of marriage and GWOP No.890 of 2023 seeking to declare him as sole guardian and permanent custody of the minor children. She has filed Tr.C.M.P.No. 416 of 2023 and the same was dismissed on 02.02.2024. It is also relevant to note that on the same day, she has filed the present writ petition seeking to produce minor children of the petitioner from unlawful custody of 5th respondent so as to enable her to confirm as to whether her children are alive or not and hand over them to her. Thereafter, she has filed Interlocutory Application to amend the relief in the writ petition and the same was allowed. Thus, she has filed the present writ petition in haste and suppressed the fact of filing of Tr.C.M.P.No.416 of 2023 and dismissal of the same on 02.02.2024.
12. Admittedly, the minor children are with 5th respondent from June, 2023 onwards. The petitioner did not take any steps either filing a writ petition or appropriate application before the Family Court seeking custody of the children including visitation rights etc. On the other hand, 5th respondent has filed application before the Family Court. The petitioner has to file application in GWOP No.890 of 2023 seeking interim custody or visitation rights of the minor children. 12 Instead she filed the present writ petition seeking custody of the minor children.
13. As discussed supra, there is no detention much less illegal detention or abduction of the children by 5th respondent. He is father of the minor children. Minor children are with him from June, 2023. She has not filed any application seeking interim custody or visitation rights of the children in GWOP No.890 of 2023. Therefore, we are of the considered opinion that the minor children are not in illegal custody of the 5th respondent as alleged by the petitioner.
14. It is also relevant to note that the learned counsel for the petitioner has filed photographs and contends that daughter of the petitioner suffered with viral fever and her health is not good. She has admitted in hospital on 12.09.2023 and discharged on 14.09.2023. The said fact was informed to the petitioner who came there and spent two days with the minor daughter in the hospital. However, it is a factual aspect which cannot be considered by this Court in the present writ petition.
15. With regard to the allegation of the petitioner that 5th respondent harassed her both physically and mentally, demanded additional dowry and harassed her at workplace etc., are serious 13 questions of facts which we cannot decide in exercise of extraordinary power under Article 226 of the Constitution of India. The petitioner has to approach the Family court to decide the said aspects. As discussed supra, 5th respondent has also filed GWOP No.890 of 2023 and the petitioner can take all the pleas and grounds before the Family Court in the said petition. Therefore, this writ petition is liable to be dismissed.
16. In the light of the aforesaid discussion, this writ petition is dismissed. Liberty is granted to the petitioner and 5th respondent to take all the pleas and grounds which they have taken in the present writ petition before the Family Court in GWOP No.890 of 2023.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date:29.02.2024 Vvr