Andhra Pradesh High Court - Amravati

Polisetti Revathi Aparna vs The State Of Ap on 29 October, 2024

Author: R Raghunandan Rao

Bench: R Raghunandan Rao

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                                                                 RRR,J & HN,J
                                                          W.P.No.20726 of 2024


 APHC010408462024
                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                         [3488]
                            (Special Original Jurisdiction)

             TUESDAY, THE TWENTY NINTH DAY OF OCTOBER
                  TWO THOUSAND AND TWENTY FOUR

                                     PRESENT

         THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
                THE HONOURABLE SRI JUSTICE HARINATH.N

                        WRIT PETITION NO: 20726/2024

Between:

Polisetti Revathi Aparna                                       ...PETITIONER

                                        AND

The State Of Ap and Others                                ...RESPONDENT(S)

Counsel for the Petitioner:

1. K K RAO

Counsel for the Respondent(S):

1. SURYA TEJA ANUMOLU

2. THE ADVOCATE GENERAL

The Court made the following Judgment:

(Per Hon‟ble Sri Justice R. Raghunandan Rao)

Heard Sri K.K. Rao, learned counsel appearing for the petitioner and Sri

Surya Teja Anumolu, learned counsel representing the learned Additional

Advocate General, for respondents 1 to 3.

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2. The marriage between the petitioner and the 4th respondent was

solemnized on 03.06.2015. They were blessed with two male children

(hereinafter referred to as „the children‟). Due to disputes between them, the

petitioner and the 4th respondent are said to have separated. The petitioner

said to have filed a complaint, which was registered as Crime No.268 of 2020,

dated 05.02.2020, before the Rajendranagar Police Station, for the offences

punishable under Sections 498-A, 323 IPC and Sections 3 and 4 of the Dowry

Prohibition Act. It is also stated that various attempts of reconciliation had

been carried out wherein the petitioner and the 4th respondent tried to live

together. These attempts did not result in any successful reconciliation and

the 4th respondent also moved F.C.O.P.No.139 of 2024 before the Additional

Family Court at L.B. Nagar, Ranga Reddy District, Telangana State, for

divorce.

3. The petitioner, after these developments, had moved to

Ravulapalem, and was carrying on her practice as a Dentist in Ravulapalem.

The 4th respondent also moved to Rajamahendravaram and is working as a

Doctor there. On 06.09.2024, the 4th respondent is said to have forcibly taken

away the children, after physically restraining the petitioner with the help of

some unknown persons. After failing to recover the custody of the children,

the petitioner is said to have filed a complaint on 08.09.2024, before the 3 rd

respondent Police Station, which registered the complaint as Crime No.269 of

2024. After registering this complaint, the 3rd respondent summoned the 4th

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respondent to the police station. However, the 4th respondent sought to hurt

himself by hitting his head against the wall, due to which the 3rd respondent

sent away the 4th respondent and did not take any further steps to recover the

children.

4. The petitioner, on the basis of these allegations and with the

complaint that the illegal action of the 4th respondent, in taking away the

children forcibly needs to be rectified, had approached this Court by way of

the present writ petition.

5. The 4th respondent, after notice, had appeared before this Court

along with the elder child. The 3rd respondent had also filed a report on

14.10.2024. In this report it was stated that steps are being taken to close the

complaint in Crime No.269 of 2024 as "mistake of fact"

6. The 4th respondent has filed a counter affidavit, in which he has

stated that he had been seeking custody of the children but was unable to

take custody due to the actions of the petitioner. The 4th respondent further

contends that the children were not being looked after properly by the

petitioner, who was more concerned about improving her practice as Dentist,

and that the children requested him to take them away when he met them on

06.09.2024 at their school in Ravulapalem. He contends that he had taken

away the children on 06.09.2024 on account of the fact that the children

requested him to do so. The 4th respondent had also made various allegations

regarding the behavior of the petitioner with him and the reasons of the marital

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disputes. These allegations may not be relevant for the present case as the

writ petition is on the question of custody of the children and not on the

question of who was responsible for the marital disputes.

7. The counter affidavit of the 4th respondent makes it clear that the

children were in the custody of the petitioner and were studying in a school in

Ravulapalem. It is also clear that the children were taken away by the 4th

respondent on 06.09.2024. This Court does not need to go into the question of

whether the children were taken away after forcibly restraining the petitioner or

not. It would suffice to hold that the 4th respondent had taken away the

children, who were in the custody of the petitioner, without her consent. It is

also held that the petitioner was opposed the 4th respondent taking custody of

the children in this manner.

8. The Hon‟ble Supreme Court, in Nirmala vs. Kulwant Singh and

Ors.,1 while considering a similar situation, had held that the parents, who are

entitled to lawful custody, can be required to restore custody to the other

parent, if the custody had been obtained illegally.

9. In the present case, it is always open to the 4th respondent to

seek custody of the children by approaching the appropriate Court of

competent jurisdiction. It would not be open to the 4th respondent to simply

take away the children from the custody of the petitioner by a unilateral act.

The question of whether such custody being taken over peacefully or

AIR 2024 SC 2344

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forcefully would also not make a difference where such custody is taken

despite active opposition by the other parent.

10. The relevant passage in the judgment of the Hon‟ble Supreme

Court, reads as follows:

11. This Court in the case of Tejaswini Gaud (supra) after considering the earlier cases, observed thus: "19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas Corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. xxxxxxxx

21. xxxxxx

12. It can thus be seen that this Court has held that the habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been

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held that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. It has further been held that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."

11. For the aforesaid reasons, this writ petition is allowed, directing

the 4th respondent to return the custody of the children to the petitioner within

two weeks from the date of receipt of this order, failing which the 3rd

respondent shall take steps to take custody of the children from the 4th

respondent and hand them over to the petitioner.

12. This order, would not in any manner, preclude the 4th respondent

from moving the appropriate Court for custody of the children and no part of

this order shall be relied upon by either side in the event of such an

application being made. It is further clarified that the Court before whom such

an application is filed shall consider and pass orders on the application,

without being influenced in any manner, by any observation made by this

Court in this order. There shall be no order as to costs.