Telangana High Court
Muppana Divya vs The State Of Telangana on 22 March, 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.3862 of 2024
ORDER:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. P.V.L.Bhanu Prakash, learned counsel for the petitioner, Sri Chaitanya Kiran, learned Assistant Government Pleader appearing for respondent Nos.1 to 4 and Sri Lingam Divakara Rao, learned counsel appearing for respondent No.5.
2. This writ petition is filed seeking a direction to the respondents to produce her minor daughter by name Muppana Ahaana, aged 3 years 4 months, before this Court. Facts:-
i. Marriage of the petitioner was performed with 5th respondent on 03.03.2018 as per hindu rites and customs. ii. They were blessed with a baby girl by name Muppana Ahaana born on 05.10.2020.
iii. After marriage, they resided at Visakhapatnam as 5th respondent was practicing law there. Two years back, they 2 shifted to Hyderabad and residing along with his mother and brother.
iv. They got joined her minor daughter in M/s Firstcry Intellitots Pre-school at Khajaguda, Hyderabad and at present she is studying there.
v. Since marriage, her husband, his mother and brother started harassing her demanding of additional dowry. vi. In routine course, on 07.02.2024 in the morning, she dropped her minor daughter at school and returned back home. On the same day, her husband, his mother and brother forcefully necked her out of the house without any reason. Apprehending danger to her daughter in the hands of 5th respondent, she immediately rushed to school to take her minor daughter, but the school authorities informed her that her husband visited the school in the morning hours and took her daughter away. Thereafter, she again visited the house of 5th respondent and questioned his act and asked him to show her minor daughter. On checking entire house premises, she did not find her daughter.3
vii. Then she had informed the incident to her father who requested 5th respondent to show minor girl but 5th respondent bluntly refused.
viii. The 5th respondent kept minor girl in an undisclosed location.
ix. Then she lodged a complaint with Women Police Station, Gachibowli, Ranga Reddy District on 07.02.2024 against 5th respondent. Though the police officials received and acknowledged the complaint, they have not registered the same and traced her daughter.
x. Her husband intentionally to settle scores with her, abducted her minor daughter from school and is not showing her daughter.
xi. She does not know whether her daughter is alive or not. xii. Being mother of a daughter, she is entitled for custody of the child.
3. 5th respondent had filed counter denying the allegations made by the petitioner contends that:-
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i. On 07.02.2024 he went to Max Vision Eye Hospital, Manikonda to get treatment to conjunctivitis. He received a call from his mother stating that the petitioner, his father-in- law and others entered into his flat, behaved with his mother rudely and took out the luggage and went away. He asked his mother to request them to wait till his return along with the minor girl from school. He extended his appointment and returned back home along with minor girl. By that time, the petitioner and her father went away. ii. He received a phone call from Raidurg Police Station informing that petitioner complained against him stating that he kidnapped the minor girl, and the police asked him to appear before them. Accordingly, he went to Police Station and explained that the child is in his legal custody. Then they instructed him to go to Women Police Station, Gachibowli. He went to the said Police Station where the Police threatened him with dire consequences if he does not hand over the custody of the minor girl to the petitioner. 5 iii. His father-in-law with his influence got the respondent unlawfully detained in the Police Station, and proclaimed that he will separate the respondent from his daughter. iv. In pursuance of the same, he along with the petitioner, police personnel went to his flat to grab the custody of minor girl high handedly. In the meanwhile. as his minor daughter, his mother and brother started to meet him at Police Station, he secured the custody of his minor daughter with great difficulty. He was not even permitted to get eye drops from the pharmacy.
v. His father-in-law who is a Special Public Prosecutor in District Court at Vizianagaram abused his power and subjected him to physical and mental harassment. Thereafter, at about 6.00 p.m. the police set him free. Thus, the petitioner herein left the conjugal society along with her father on 07.02.2024 without any valid reason, along with her belongings, clothes, silver and gold articles. vi. He apprehends danger to his daughter. He is taking utmost care of his child about her health, schooling and recreation 6 etc., He is providing education to his daughter with international standards. The petitioner is staying in a village where she cannot get such good education. vii. The petitioner is suffering from genetic disorder, Albinism, Nystagmus and also has blurred vision. Therefore, the petitioner and her father are not in a position to look after the minor girl.
viii. His daughter requires regular vaccination and health check-
up at Mathpathi Children and Specialty Clinic at O.U.Colony, Shaikpet, Hyderabad, and Schooling at Firstcry Intellitots at Prashant Hills, Khajaguda, Hyderabad. ix. The acts of the petitioner, her father and five Police Personnel on 07.02.2024 were recorded in CC Camera Footage of his apartment i.e. TVS Lake view apartments, at Manikonda and same was captured with screen shot photos and filed herewith.
x. He had filed GWOP No.18 of 2024 under Sections 7 and 9 of Guardians & Wards Act, 1890 read with Section 6 of Hindu Minority & Guardianship Act, 1956 read with Section 7 7(1) (g) of Family Court Act, 1984 to declare and appoint him as the natural guardian of minor girl and grant custody of the minor girl to him considering her best interests. xi. In the said GWOP, he had filed I.A.No.170 of 2024. Learned Judge, Principal Family Court, Ranga Reddy District at L.B.Nagar vide order dated 13.02.2024 granted interim custody of the minor girl to him. The said I.A.No.170 of 2024 is pending and the interim order is subsisting. Petitioner knows the said order and even then, she has filed the present writ petition.
4. With the aforesaid submissions, he sought to dismiss the present writ petition.
5. The learned Asst. Govt.Pleader had produced written instructions of the Sub Inspector of Police, WPS Gachibowli/ respondent No.4, wherein it is stated that on 07.02.2024 at 13.32 hours the petitioner herein has lodged a complaint stating that her husband, mother-in-law and brother-in-law harassed her physically and mentally with a demand of additional dowry. On 07.02.2024 petitioner's father came to their house in order to take her and her 8 child to her parents house. Her husband went to her minor daughter's play school and abducted her and kept in some place. Basing on the said complaint, they along with Raidurgam patrolling staff, went to the house of the petitioner and found it locked. Then respondent No.4 called her husband over phone and held counseling, but her husband not agreed to return the daughter stating that he is Advocate by profession, knows about the provisions of law and wants to proceed legally. In pursuance of the order dated 14.02.2024 of this Court, he served notice on 5th respondent.
6. During the course of hearing, learned counsel on both side reiterated the aforesaid contentions.
Findings of the Court:-
7. 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 5th respondent as alleged by the petitioner. 9 Welfare of the minor child is paramount consideration while deciding this writ petition.
8. 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 detention of a minor child or parents and others is illegal without any authority of law.
9. 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 1 MANU/TL/0956/2023 10 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.
10. 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. 11
11. Coming to the facts of the present case, according to the petitioner, her marriage was performed with 5th respondent on 03.03.2018. They were blessed with a baby girl by name Muppana Ahaana born on 05.10.2020. Since marriage, her husband, mother- in-law and brother-in-law harassed her physically and mentally demanding with a demand of additional dowry. On 07.02.2024 her husband forcibly necked her out. Her husband forcibly abducted her daughter from school and kept in his illegal custody and not allowing her to see her daughter. Despite lodging a complaint, the police concerned did not take any action and trace her daughter. Police facilitated 5th respondent from 07.02.2024 to 13.02.2024 so that he will get an order from the Family Court suppressing the said material fact. The petitioner, being the mother of the minor girl, is entitled for custody of the child.
12. According to 5th respondent, on 07.02.2024 when he went for eye treatment to hospital, the petitioner herein left the conjugal society along with her father without any valid reason and she has taken all her belongings, clothes, silver and gold articles. She had lodged a false complaint with Raidurg Police Station 12 against him stating that he kidnapped the minor girl. The police harassed him basing on the said complaint under the influence of his father-in-law who is a Special Public Prosecutor in District Court at Vizianagaram. Even the Police, Women Police Station, Gachibowli threatened him with dire consequences if he does not hand over the custody of the minor girl to the petitioner. Unable to bear the harassment by the petitioner, he had filed GWOP No.18 of 2024 to declare and appoint him as the natural guardian and also grant custody of the minor girl to him considering her best interest. In the said GWOP, he had also filed a petition vide I.A.No.170 of 2024 seeking continuation of custody of minor girl with him. Learned Judge, Principal Family Court, Ranga Reddy District at L.B.Nagar vide order dated 13.02.2024 restrained the petitioner herein from disturbing the minor child. The petitioner is staying in a village, where she cannot provide comforts and needs to the minor girl. The petitioner being a patient of some ailments, not in a position to look after the minor girl. His daughter requires regular vaccination and health check-up at Mathpathi Children and Specialty Clinic at O.U.Colony, Shaikpet, Hyderabad, and 13 Schooling at Firstcry Intellitots at Prashant Hills, Khajaguda, Hyderabad. The acts of the petitioner, her father and five Police personnel who entered into his house on 07.02.2024 and searched for minor girl were recorded in CC Camera Footage of his apartment.
13. The aforesaid facts would reveal that there are matrimonial disputes between the petitioner and 5th respondent. He has filed the aforesaid GWOP No.18 of 2024 seeking to declare and appoint him as the natural guardian and also grant custody of the minor girl to him. He has also filed a petition vide I.A.No.170 of 2024 and vide order dated 13.02.2024, learned Family Court restrained the petitioner from disturbing the custody of the minor child.
14. The aforesaid allegations made by the parties against each other are serious questions of facts which we cannot decide in exercise of extraordinary power of this Court under Article 226 of the Constitution of India. Learned Family Court will decide the said aspects.
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15. Thus, 5th respondent is seeking custody of the minor girl on the following two grounds:-
i. Petitioner is suffering with genetic disorder, albinism, nystagmus and has blurred vision.
ii. Petitioner is staying in a village situated at Vijayanagaram District, AP, therefore, she may not be in a position to provide proper facilities to the minor child such as vaccination, health check up, schooling.
16. It is relevant to note that the minor girl is aged 3 years 4 months and there is no complaint against the petitioner that she is not taking care of the minor child due to her ailments. For the first time, 5th respondent made such an allegation. It is not a ground to deny custody of the minor girl to the petitioner. Even according to 5th respondent, petitioner has her parents and her father is a Public Prosecutor. They are residing at Nellimerla Village and Mandal, Vijayanagaram District, Andhra Pradesh which is not a remote place as alleged by 5th respondent.
17. With regard to vaccination, health check up etc., Nellimerla village is a Mandal Headquarter and there would not be 15 any problem to the petitioner to get vaccination and health check up of the minor child. On the said ground, this Court cannot deny custody of the minor girl to the petitioner.
18. As discussed supra, while deciding petitions with regard to custody of minor child, welfare of the child is paramount consideration. In the present case, minor child is a girl child aged 3 years 4 months. More than anything, she needs care and protection of mother. If the petitioner has any problem including health problem as alleged by the 5th respondent, she can take help of her mother. The said aspects were not considered by the learned Family Court while granting the aforesaid interim order dated 13.02.2024.
19. In the said order dated 13.02.2024, despite referring the age of the minor girl, learned Family Court, injuncted the petitioner from disturbing the custody of the minor child. No reasons were assigned by the Family Court, except stating that considering the averments in the petition, documents on record and age of the child. It is also apt to note that though the Family Court held that the child was produced and seen actively playing with mother and 16 brother of 5th respondent. If the 5th respondent is deprived of the custody of the child, the child would be put to hardship since she is accustomed to the custody of her father and that the petitioner herein has left the daughter with 5th respondent's mother while leaving the house on 07.02.2024. The said finding of the learned Family Court is not on consideration of actual facts on record stated supra. Learned Family Court adjourned the matter to 27.02.2024, from 27.02.2024 to 09.03.2024 and 09.03.2024 to 28.03.2024. Learned Family Court cannot adjourn the Interlocutory Application filed for custody of minor child just like that in a routine manner. Family Court has to consider the pleadings and documents of both the parties and decide the said application at the early. In the present case, learned Family Court did not do so.
20. Admittedly, the minor girl is aged about 3 years 4 months. It is a tender age. She needs care, protection and support of mother. The minor girl needs medication. The minor girl will be comfortable with the mother. Nobody can substitute mother for caring at such tender age. Welfare of the minor child is of paramount consideration while deciding custody petitions. 17
21. In view of the aforesaid discussion, we are of the considered view that the custody of the minor child should be with the petitioner/mother. If the 5th respondent wants interim custody, visitation rights of the minor child, he has to seek the same from the Family Court which will have benefit of interacting with the parties including the child and material available and decide the same.
22. Therefore, this writ petition is allowed as follows:-
i. 5th respondent is directed to hand over the minor child by name Muppana Ahaana, to the petitioner herein within one week from today.
ii. Liberty is granted to 5th respondent and petitioner to pursue GWOP No. 18 of 2024 filed by him before the learned Principal Family Court, Ranga Reddy District at L.B.Nagar, to declare and appoint him as a guardian, custody and visitation rights of minor girl.
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 18 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:22.03.2024 Vvr