Andhra Pradesh High Court - Amravati

Chitti Dinesh Reddy vs The State Of Andhra Pradesh on 6 December, 2023

Author: U. Durga Prasad Rao

Bench: U. Durga Prasad Rao

                                1




      HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                              AND
    HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA

           WRIT PETITION NO. 21574 of 2023

Between:

Chitti Dinesh Reddy,
S/o. Late Venkateswara Reddy, aged 32 years,
R/o. D. No.15-9-392/A. 5th Line, Lanchester Road,
Sangadigunta.
                                              .... Petitioner
                              And

The State of A.P. Rep by its Principal Secretary,
Department of Home, Velagapudi, Guntur District and
6 others.

                                              ....Respondents

ORDER:

- (Per Hon'ble Smt. Justice Kiranmayee Mandava)

This Writ Petition is filed for issuance of Habeas

Corpus directing the official respondents to produce his minor

daughter namely Chitti Vedanshi, aged about four (04) years,

before this Court and set her at liberty.

2. The facts leading to the filing of the present Writ

Petition, as stated by the petitioner are that he got married to

one, Ms. Nagamani in the year 2016, and out of their

wedlock, they were blessed with a baby girl by name Chitti

Vedanshi in the year 2019. And that in the year 2022, his

wife died on account of heart ailments. After the death of his

wife, he submits that his minor kid was staying with him and

the unofficial respondents 5 & 6, who are grandparents of

the minor child were visiting them now and then, and on

23-04-2023, the unofficial respondents took the minor child

along with them, stating that they would send her back in a

week. He submits that believing their word, he had let them

take her along with them. Thereafter, he states that the

unofficial respondents 5 and 6 after taking his minor child

along with them did not send her back, driving him to file the

present Writ Petition.

3. On notice, the unofficial respondents 5 to 7

entered their appearance through their counsel and filed their

counter affidavit. The respondents 5 to 7 state that after

delivery of the first child, the doctors have advised the

deceased wife of the petitioner, not to procreate children,

despite the said advise, the deceased succumbing to the

pressure of the petitioner and his family members, conceived ,

and that the same ultimately led to her unfortunate death.

The respondents have further submitted that they are

resourceful and would take care of the minor child, with

utmost care, love and affection, if her custody is given to

them.

4. This Court vide order dated 26.09.2023, directed the

unofficial respondents to produce the minor child before the

Court. Pursuant to the same, on 04.10.2.23, the minor child

of the petitioner was produced before this Court. And this

Court on 04.10.2023 had interacted with the minor girl and

observed as follows:

"Pursuant to the direction issued by this Court on 26.09.2023, respondents 5 to 7 have produced the minor child by name Vedanshi. We had an interaction with the minor child, who is four years old, in the chambers. During our interaction, although she stated that she intends to live with her maternal grandparents and that she is not willing to live with her father, we are of the considered opinion that she is not fully matured to express any opinion according to her free volition, as she is four years old. The petitioner, who is the father of the minor child, is working in Pune and it is stated by him that now he is working from home in Guntur. When questioned as to how he would take care of his child if he is called back to Pune to work in office, it is stated by him that his mother, who is a widow, would follow him and take care of the child in Pune. His mother is also present in the Court and when we questioned her, initially, she stated that she is not willing to go to Pune. But, again she stated that she would go to Pune along with his son to look after the minor child.

Learned counsel for the petitioner is directed to file an affidavit of the mother of the petitioner explaining whether she would follow

the petitioner to Pune and live with him and would look after the minor child or not in clear terms without any ambiguity by the next date of hearing, to pass appropriate orders in this Writ Petition after considering the same.

The 5th respondent, who is the maternal grandfather of the minor child, is also present and he states that he got a son and another daughter, who are married and that he is an agriculturist by profession and that he got 10 acres of land and earning Rs.2.00 Lakhs per annum on it. He has admitted that when the child is in the custody of the petitioner, who is her father, that the 7th respondent brought her from his custody at their instance and since then the minor child is in their custody.

List the matter on 07.10.2023."

5. Pursuant to the directions of this Court dated

07-10-2023, the mother of the petitioner filed an affidavit

dated 06-10-2023 and 11-10-2023, stating that she would

stay with his son, wherever he is, on account of his

professional discharge of duties, and take care of the minor

child.

6. Heard, Smt. Marella Radha, learned counsel for

the petitioner, Sri T.S. Rayalu, learned counsel for respondent

Nos.5 to 7 and learned Additional Advocate General for

respondent Nos.1 to 4.

7. The learned counsel for the petitioner relies on the

decision of the Allahabad High Court, in Master Namish

Gupta Alias Guddu Gupta Vs. State of U.P. and others in

Habeas Corpus W.P. No..229 of 2022, dated 25.07.2023 and

also relies on the decision of this Court in Ganji Siva

Bhujanga Prabhakar Rao and another - petitioners Vs.

The State of A.P. and others - Respondents in W.P.

No.16965 of 2019, dated 05.11.2019.

8. The learned counsel for the respondents

Sri. T.S. Rayalu, relies on the decision of the Division Bench

of this Court in the case of Cheenu Gopi Vs. The State of

Andhra Pradesh in W.P. No.No.25607 of 2022 dated

12.09.2022.

9. This Court, in the case of Cheenu Gopi Vs. The

State of Andhra Pradesh's case referred supra, relied upon

by the learned counsel for respondents, referring to the

decisions of the Supreme Court, and after referring to the

facts involved in the case, wherein certain immoralities have

been attributed to the father of the child, observed as under:

"26. In the case of Ajali Kapoor v. Rahjiv Baijal,(5 supra) where the custody of a minor child was claimed by the father being the natural parent from the maternal

grandmother, the mother having died in childbirth, it was held by Apex Court that taking proper care and attention in upbringing the child is an important factor for granting custody of child, and on facts, the child having been brought up by the grandmother since her infancy and having developed emotional bonding, the custody of the child should be allowed to be retained by the maternal grandmother. While considering the competing rights of natural guardian vis-à-vis the welfare of the child, the test for consideration by the Court was to be; what would best serve the welfare and interest of the child. Referring to the earlier decisions in Sumedha Nagpal v. State of Delhi, (6 supra), Rosy Jacob v. Jacob A.Chakramakkal, (7 supra), Elizabeth Dinshaw v. Arvand M. Dddinshaw, (8 supra) and Muthuswamy Chettiar v. K.M.Chinna Muthuswami Moopanar, (9 supra), it was held that the welfare of child prevails over the legal rights of the parties while deciding the custody of minor child. The observations made in the judgment in this regard are as follows:

"14. The question for our consideration is, whether in the present scenario would it be proper to direct the appellant to hand over the custody of the minor child Anagh to the respondent.

15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such

a question cannot be decided merely based upon the rights of the parties under the law."

27. The above cases were also referred in Rajeswari Chandraseka Gaanesh v. State of Tamil Nadu & Others (2 supra) relied on by the learned counsel for the respondents 6 & 7.

28. The Hon'ble the Supreme Court in Tejaswani Goud and Others v Shekhar Jagdish Prasad Tewari and Others(1 supra) relied on by the learned counsel for the petitioner also held that welfare of the minor child is paramount consideration and further held that the Court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian, but welfare of the minor is supreme consideration in cases concerning custody of minor child."

10. The welfare of the minor child is paramount

consideration, this Court, in the facts of the above said case,

had refused to grant writ of Habeas corpus as prayed for by

the petitioner.

11. In the facts of the present case, as seen from the

pleadings of the unofficial respondents, nothing as regards

any immoral character or conduct of the petitioner, except to

state that, beyond the medical advice, the petitioner had

forced their deceased daughter to have children, which led to

her unfortunate death.

12. In cases of this nature, as held by the Apex Court

in catena of judgements, primary and utmost consideration,

while deciding the custody of minor children, should be

his/her welfare. In the present case, the petitioner, who is the

father and natural guardian of the minor child, and who

remained a widower as of date, after the demise of his wife,

having sufficient means, being a software engineer, to look

after the minor child with the support of his mother, cannot

be deprived of his parenthood, in the absence of any

accusations or allegations being levelled against him by the

unofficial respondents, as regards his character or conduct

which make him unfit and unsafe to seek the custody of the

minor child. On the other hand the maternal grandparents,

i.e., the unofficial respondents herein, may be having

sufficient means to look after the minor child, but that may

not be a sole criterion to grant custody of the minor child to

them. The father who is equally financially and otherwise

competent to take care and look after the welfare of the

minor child and further in the absence of any other

allegations against the father, we do not see any reason to

refuse custody of the minor child to him, keeping in view, the

overall welfare of the minor child, we deem it appropriate to

direct the custody of the minor child should be with father i.e.

the petitioner herein.

13. Accordingly, this Writ Petition is allowed, with the

following directions:

a) The unofficial respondent Nos.5 to 7 shall

hand over the minor child, baby Vedanshi, to the

petitioner herein within three (03) days and her

custody shall remain with the petitioner, who is her

natural guardian.

b) The unofficial respondent Nos.5 & 6, being the

grandparents of baby Vedanshi, may be permitted to

visit the child during every Sunday between 08.00 am

to 02.00pm.

14. However, the unofficial respondents are at liberty

to approach Competent Court, if so advised, seeking

custody/guardianship of their minor granddaughter, baby

Vedanshi, under the provisions of the Guardians and Wards

Act, 1890.

15. With the above directions, the Writ Petition is

accordingly allowed. No costs. As a sequel, interlocutory

applications pending, if any, shall stand closed.

______________________________ U. DURGA PRASAD RAO, J

_______________________________ KIRANMAYEE MANDAVA, J

Date: 06.12.2023 MVK

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA