Telangana High Court
B.L. Narsing Rao vs Union Of India on 7 June, 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.32406 OF 2023
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. T.K. Sridhar, learned counsel for the petitioner, learned Deputy Solicitor General of India appearing for respondent Nos.1 and 2, Sri Swaroop Oorilla, learned Special Government Pleader appearing for respondent Nos.3, 5 to 10, Sri J.V.Srinesh, learned counsel appearing for respondent Nos.11,13 to 15, Sri S.Viplav Simha Reddy, learned counsel appearing for respondent Nos.12 and 16 and Sri Srinivas Kapatia, learned Special Public Prosecutor for CBI appearing for respondent No.4.
2. This writ petition is filed by the petitioner to direct the respondents 1 to 10 to produce the petitioner's grand-daughter by name Shaila, aged about 7 years, from illegal custody of respondents 11 to 16 and to hand over custody to the petitioner.
3.FACTS:-
i. The marriage of the petitioner's daughter i.e. Leena Bhargavi Bairu, was performed with 11th respondent on 29.05.2013. 2 ii. They were blessed with a girl by name Shaila on 12.05.2016. iii. According to the petitioner, 11th respondent is maintaining illicit relation with respondent No.12, a divorcee, mother of a baby girl. iv. 12th respondent is dental surgeon and she has knowledge and experience to administer anesthetic drugs. v. On 28.06.2022, respondent No.12 trespassed into the house of the petitioner's daughter in USA, abused and revealed her extra marital affair with 11th respondent.
vi. The petitioner's daughter died on 08.11.2022. vii. According to the petitioner, it is unnatural death and 11th respondent committed murder of his daughter conspiring with respondent No.12.
viii. On coming to know about the death of his daughter, as he was in USA, he lodged a complaint with police there and they have collected blood samples etc. ix. He came back to India on 29.01.2023. He has also lodged a complaint with 10th respondent. But he did not act upon the same. Therefore, he has sent representations to respondents 5 to 9 and also filed a complaint under Section 200 of Cr.P.C. before the learned I Additional Junior Civil Judge-cum-I Additional 3 Metropolitan Magistrate at Malkajigiri, who in turn referred the said matter to 10th respondent. Even then, 10th respondent did not register First Information Report. Therefore, the petitioner has filed a writ petition vide W.P.No.30187 of 2023 seeking a direction to 10th respondent to register the complaint. x. Thereafter, 10th respondent has registered a case in Cr.No.879 of 2023 against 11th respondent and others for the offences punishable under Sections 302, 120-B and 498-A of IPC and under Sections 3 and 4 of the Dowry Prohibition Act. Investigation in the said crime is pending.
xi. According to the petitioner, he received death certificate of his daughter on 08.09.2023 which shows the cause of death as Fentanyl and Alprazolam toxicity. The Fentanyl and Alprazolam are two different drugs. Fentanyl is a potent synthetic opioid drug approved by the Food and Drug Administration for use as an analgesic (pain relief) and anesthetic. It is approximately 100 times more potent than morphine and 50 times more potent than heroin as an analgesic.4
xii. According to the petitioner, his daughter's death is not a natural death and 11th respondent conspired with 12th respondent and committed murder of his daughter.
xiii. He has narrated the said aspects in the writ affidavit in detail. xiv. 11th respondent is leading adulterous life with 12th respondent and his parents/respondents 13 to 14 and brother are supporting him. 16th respondent is father of 12th respondent and he is also supporting them.
xv. 12th respondent is a divorcee, she is also having a baby girl. She is leading adulterous life with 11th respondent. There is danger to the life of his grand-daughter and the girl will become an orphan where her custody will be shifted to boarding schools operated by State which is not in the best interest of his grand-daughter. xvi. He has also placed reliance on catena of judgments of various courts and the Apex Court. He is seeking custody of his grand- daughter.
xvii. In paragraph No.16 of the writ affidavit, he has contended that though 11th respondent is a natural guardian, he is unfit to act as a guardian because of his unethical and immoral act as the circumstances are pointing towards his involvement in causing 5 unnatural death of his daughter as such in the paramount welfare of the minor entrusted with the custody with his grand daughter though she is a USA citizen.
xviii. He has also alleged that respondents 11 and 12 have jointly purchased property on 03.08.2023 at Austin city, Texas State, USA indicating their marital status as unmarried man and unmarried woman vide Deed of Trust for transfer of property. He has submitted a representation to 2nd respondent who in turn sent a reply informing the petitioner that he has to request the enforcement agencies for extradition of the accused and also his grandchild.
xix. Thus, according to the petitioner, his granddaughter, aged about 7 years is in illegal custody of respondent No.11.
4. 11th respondent filed counter denying the allegations made by the petitioner in the writ affidavit. According to him, his wife got COVID in May, 2022 and since then, she had been complaining of weakness and intermittent chest pain as post-COVID symptoms, She also suffered with severe cold and sinus issues. His wife died due to pneumonia. It is a natural death. His daughter is with him He is taking care of and welfare of his daughter. After the incident, his daughter was 6 scared to live in the same house where her mother passed away and wanted them to move. 12th respondent is only his tenant and he never maintained illicit relation as alleged by the petitioner. 11th respondent being natural father is in legal custody of the minor child. The petitioner cannot seek custody making false allegations against 11th respondent herein. The petitioner visited the house of 11th respondent twice and spoiled the mind of the minor girl and also neighbours. Therefore, according to the 11th respondent, he, being natural father, is entitled for custody of the minor girl and minor child is in his legal custody.
5. 12th respondent also filed counter denying all the allegations made against her. According to her, she was tenant of the 11th respondent and paid rent. Thereafter, she has shifted the said house. After giving birth to a baby girl, disputes arose between her and her husband and therefore, she has obtained divorce and leading her normal life along with her daughter. She never maintained illicit relation with 11th respondent as alleged by the petitioner.
6. Respondents 13 and 15 have also filed counters in the same lines as that of 11th respondent.
7. 16th respondent filed counter denying allegations leveled against him. According to him, 12th respondent is his daughter and she 7 was dragged into the present case illegally. She is not maintaining illicit relation with 11th respondent as alleged by the petitioner.
8. 4th respondent-CBI filed counter contending that CBI is empowered to investigate all offences notified by the Central Government under Section 3 of the Delhi Special Police Establishment Act, 1946 (for short, 'DSPE Act') predominantly pertaining to bribery/ corruption in various departments of Central Government, serious frauds in Banks, Stock Exchanges, Financial Institutions, Joint Stock Companies, Public Limited Companies, and those offences having inter- state and international ramification. Therefore, they cannot investigate into the present case since it is a dispute between the petitioner and 11th respondent.
FINDINGS OF THE COURT:-
9. The aforesaid facts would reveal that the minor child is aged about 7 years and she was born on 12.05.2016. There is no dispute that daughter of the petitioner and wife of 11th respondent died on 08.11.2022. There is dispute with regard to her death. According to the petitioner, it is unnatural death. According to the 11th respondent, it is natural death. However, this Court cannot go into the said aspects in a writ of habeas corpus and a case in Cr.No.879 of 2023 is registered. It is 8 for the Investigating Officer to consider the said aspects and also trial Court on filing of charge sheet, if any.
10. 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 girl is in illegal custody of 11th respondent as alleged by the petitioner. In a matter like this, welfare of the child is of paramount consideration while deciding this writ petition.
11. 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.
12. 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. Article 226 of Constitution of India has been described as a writ of right which is grantable 'ex debito justitiae'. 9 Though a writ of right, it cannot be deemed as a writ of course. The applicant/petitioner must establish a prima facie case of unlawful 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.
13. 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,
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.
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14. 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.
15. In the light of the aforesaid principles laid down by the Apex Court, coming to the case on hand, as discussed supra, no doubt that the minor girl is aged about seven years. 11th respondent is her natural father. The petitioner herein is her maternal grandfather. While deciding custody matters, welfare of the minor child is paramount consideration.
16. The writ petitioner made serious allegations against respondent Nos.11 and 12. He has narrated the same in detail in the writ affidavit. But it is a writ of Habeas Corpus filed by the petitioner seeking production and custody of his minor grand-daughter. Therefore, the said aspects are not much relevant to consider in detail. 11
17. In the present case, we have to decide as to whether the custody of the minor girl with the 11th respondent is illegal.
18. As discussed supra, we have to decide the present writ petition basing on the affidavits. According to the petitioner, his daughter's death is unnatural. We cannot go into the said aspects in view of the pendency of the aforesaid crime. There is no dispute that the minor girl was born and brought up in USA and she is a citizen of USA.
19. According to the respondents 11 and 12, they are not leading adulterous life as alleged by the petitioner. 12th respondent is only a tenant of 11th respondent and she has paid rent to 11th respondent. Now she moved out of the said house.
20. Referring to the photographs and whatsapp chats, learned counsel for the petitioner would contend that the minor child of 11th respondent and baby girl of 12th respondent are studying in the very same school which shows adulterous life of respondents 11 and 12. Therefore, according to him, there is danger to the life of the minor child. It is a factual aspect. This Court cannot go into the same in a writ petition filed under Article 226 of the Constitution of India. No doubt, this Court can go into certain factual aspects but certainly not 12 complicated /disputed questions of fact. The aforesaid aspects are complicated/disputed questions of fact which we cannot go into.
21. The petitioner herein has also specifically alleged that 11th respondent has transferred certain amounts to 12th respondent and purchased property in the name of 12th respondent. Both the respondents 11 and 12 denied the said aspect in the counters filed by them. It is a factual aspect which this Court cannot consider in a writ petition filed under Article 226 of India.
22. There is no doubt that the petitioner herein is maternal grandfather of the minor child. He is seeking custody of the minor child. There are various statutes which have legislative recognition. The Guardian and Wards Act, 1890 (for short, 'the Act') is enacted to consolidate and amend the law relating to Guardian and Ward.
23. Section 4 of the Act defines the word 'minor', 'guardian' and 'ward' as follows:-
(1) "minor" means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is to be deemed not to have attained his majority:
(2) "guardian" mean's a person having the care of the person of a minor or of his property, or of both is person and property:
(3) "ward" means a minor for whose person or property, or both, there is a guardian:13
Sections 5 to 19 in Chapter-II of the Act deals with appointment and declaration of guardians. Section 7 deals with power of the Court to make order as to guardianship. Section 17 of the Act deals with the matters to be considered by the Court in appointing guardian which is relevant and extracted below:-
Section 17:- Matters to be considered by the Court in appointing guardian.--
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) ............(omitted)..........
(5) The Court shall not appoint or declare any person to be a guardian against his will.
Therefore, if the petitioner wants custody of the minor child, he has to approach competent jurisdictional Family Court by way of filing an application under Section 7 of the Act to appoint him as guardian and seek interim custody of his granddaughter. Learned Family Court will have benefit of interacting with the parties including the petitioner, 11th respondent and minor girl. The only issue that arises in the present case 14 is that 11th respondent is in USA and the minor girl also is in USA with 11th respondent. She is USA citizen, born and brought up there itself.
24. Referring to the same, learned counsel for the petitioner expressed difficulty that would arise in the service notice on 11th respondent. But, he can serve notice on 11th respondent through e-mail or whatsapp with the permission of the learned Family Court.
25. As rightly contended by 2nd respondent, the petitioner has to request Enforcement Agencies to seek extradition of the accused and also the minor child. Admittedly, the aforesaid crime is pending. The Investigating Officer will take all the steps in accordance with law, while conducting investigation in the aforesaid crime.
26. It is also relevant to note that there are many cases wherein the minor children are in USA and the spouses/grand-parents are seeking custody of the said children. Therefore, National Commission for the Protection of Child Rights (NCPCR) has appointed a Committee consisting of three Members. The Ministry of Home Affairs, Government of India has also issued guidelines for approaching said Committee and the procedure to be followed by the said Committee. The petitioner has to avail any of the aforesaid remedies. Instead of doing so, he has filed the present writ petition.
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27. As discussed supra, at the cost of repetition, 11th respondent, being the natural father of the minor child is having custody of the minor child. Just because, the petitioner made allegations against 11th respondent that he has committed murder of his wife, we cannot say that the minor child is in illegal custody of 11th respondent. Investigation in the said crime is pending.
28. In the light of the aforesaid discussion, this writ petition is disposed of granting liberty to the petitioner to file appropriate application in terms of Section 7 of the Guardians and Wards Act, seeking custody of the minor child i.e. Shaila, aged about 7 years, before a competent jurisdictional Family Court and it is for the Family Court to decide the said application in accordance with law. Liberty is also granted to the petitioner to seek interim custody of the minor child and to approach Enforcement Agencies for extradition of 11th respondent and the minor child 'Shaila'. Liberty is also granted to the petitioner to approach National Commission for the Protection of Child Rights (NCPCR) and also the committee appointed by it. The Investigating Officer shall conduct investigation in the aforesaid crime strictly in accordance with law.
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Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
________________________ JUSTICE K. LAKSHMAN _________________________ JUSTICE P.SREE SUDHA Date:07.06.2024.
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