Andhra Pradesh High Court - Amravati

Akkineni Vijaya Lakshmi vs The State Of Ap on 23 October, 2024

Author: R Raghunandan Rao

Bench: R Raghunandan Rao

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                                                           W.P.No.13200 of 2024


 APHC010268102024
                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                       [3488]
                            (Special Original Jurisdiction)

           WEDNESDAY, THE TWENTY THIRD 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: 13200/2024

Between:

Akkineni Vijaya Lakshmi and Others                        ...PETITIONER(S)

                                        AND

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

Counsel for the Petitioner(S):

1. P S P SURESH KUMAR

Counsel for the Respondent(S):

1. MANDA NAGENDRA PRASAD REDDY

2. THE ADVOCATE GENERAL

The Court made the following Judgment:

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

Heard Sri P.S.P. Suresh Kumar, learned counsel appearing for the

petitioners, learned Government Pleader in the office of the learned Advocate

General appearing for respondents 1 to 3 and Sri M. Nagendra Prasad Reddy,

learned counsel appearing for the 4th respondent.

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2. The 1st petitioner had moved this Writ of Habeas Corpus on the

following allegations.

a) The1st petitioner‟s daughter, who was subsequently impleaded as

2nd petitioner, by order dated 29.07.2024, was married to the 4th respondent

on 27.06.2021. A boy (hereinafter referred to as „the child‟) was born to them

on 07.03.2022. Subsequent to the birth of the child, the 2nd petitioner and the

4th respondent had separated on account of marital differences and

allegations of harassment against the 4th respondent.

b) The 2nd petitioner and her child are said to have moved out of the

marital home and were living with the 1st petitioner. In the year 2022, the 2nd

petitioner had moved to United States of America for pursuing her further

studies in Pharmacy. At that stage, prior to leaving for USA, the 2nd petitioner

had executed a G.P.A, dated 18.11.2022, appointing the 1st petitioner as her

attorney to take care of her property and her minor child.

c) On 21.06.2024, the 4th respondent along with his brother and

other persons are said to have illegally trespassed into the house of the 1st

petitioner and had forcibly taken away the child. The 1st petitioner is said to

have then approached the Station House Officer, I Town Police Station,

Gudivada (arrayed as respondent No.3) and lodged a complaint, which was

registered as Crime No.180/2024 under various sections of the Indian Penal

Code. However, the provisions of Section 365 IPC were not included in the

Crime registered by the 3rd respondent.

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d) As no steps were being taken by the 3rd respondent to recover

the child from the 4th respondent, the petitioners approached this Court, by

way of the present writ petition, seeking a direction for handing over the child

to the 1st petitioner.

2. The contention of the 1st petitioner, which is also supported by the

2nd petitioner, is that though the 4th respondent is the father of the child, he

cannot take the law into his own hands and forcibly and illegally take over the

custody of the child from the 1st petitioner.

3. Both the petitioners have also contended that the marriage

between the 2nd petitioner and the 4th respondent is itself suspect, as the 4th

respondent, during the sustenance of an earlier marriage, had married the 2nd

petitioner and the said marriage would be invalid. It is further contended by

the petitioners that the marriage between the 4th respondent and his 1stwife

ended only on 28.03.2024, after a decree of divorce was obtained in

O.P.No.901 of 202 before the I Additional Family Court-cum-XIV Additional

Metropolitan Sessions Court, Hyderabad.

4. The 4th respondent filed a counter affidavit denying all the

allegations made against him. The case of the 4th respondent is that the child

was staying with him and the 1st petitioner under the guise of meeting the child

had come to the house of the 4th respondent in May 2024 and had

surreptitiously taken away the child from the residence of the 4th respondent.

The 4th respondent made his attempts to locate the 1st petitioner, who was not

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residing at her residence. Later, on coming to know that the 1st petitioner had

returned to her residence, the 4th respondent is said to have confronted the 1st

petitioner about the child being taken away surreptitiously and took custody of

the child and came back. The 4th respondent would also contend that a

separate complaint had also been filed by the 4th respondent before the 3rd

respondent and the same was registered as Crime No.181 of 2024 dated

21.06.2024.

5. The contents of the said complaint were that the child had

surreptitiously been taken away by the 1st petitioner on 29.05.2024 from the

custody of the 4th respondent and that he was able to find the 1st petitioner

only on 21.06.2024 when she came back to her residence and he was able to

regain the custody of the child on that day.

6. Sri N. Nagendra Prasad Reddy, learned counsel for the 4th

respondent would contend that the 4th respondent being the father of the child

is entitled to the custody of the child and his custody cannot be treated to be

as illegal and unlawful custody by any stretch of imagination. He would further

submit that the allegation of the 1st petitioner that the child was always in her

custody and has been forcibly taken away by the 4th respondent on

21.06.2024, is false.

7. Sri P.S.P. Suresh Kumar, learned counsel appearing for the

petitioners has submitted photographs, medical bills and reports apart from

Angawadi Vaccination reports, which show that it was the 1st petitioner, who

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had been taking care of the child on behalf of her daughter, who is the mother

of the child.

8. A perusal of the documents and material, produced by the 1st

petitioner, amply demonstrates that it was the 1st petitioner who was looking

after the child. This effectively discredits the version of the 4th respondent that

the child was with him and had been surreptitiously taken away by the 1st

petitioner in May 2024.

9. The contents of the complaint given by the 4th respondent, as

recorded in Crime No.181 of 2024, by the 3rd respondent, are to the effect that

the child had been taken away by the 1st petitioner on 29.05.2024. The delay

in filing a complaint in this regard and the fact that a complaint of this nature

was filed only on the day on which the child is said to have been recovered,

make the allegations in the complaint highly suspect. In the circumstances,

this Court comes to the conclusion that the child was with the 1st petitioner till

21.06.2024 when the 4th respondent forcibly took away the child from the

custody of the 1st petitioner.

10. In the normal course, this court would not interfere in matters of

child custody and would relegate the contesting parties to the Family Court /

Civil Court for adjudication of their rights and claims. However, as laid down in

catena of cases, by the Hon‟ble Supreme Court, including G. Eva Mary

Elezabath vs. Jayaraj and Ors., 1 ,Rajesh K. Gupta vs. Ram Gopal

AIR 2005 Madras 452

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Agarwalaand Ors.,2 and Tejaswini Gaud and Ors., vs. Shekhar Jagdish

Prasad Tewari and Ors., 3 this Court while exercising its jurisdiction under

Article 226 of the Constitution of India, in a Writ of Habeas Corpus, would

interfere where the interests of the child are not being looked after or where

forcible custody is taken over by one parent by taking the law into his / her

own hands.

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

Ors.,4 had held that this Court should intervene when illegal custody of the

child is taken by a parent, who is otherwise entitled to lawful custody of the

child.

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

(2005) 5 SCC 359

(2019) 7 SCC 42

2022 SCC Online SC 1706

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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 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."

12. In the present case, the 4th respondent took the custody of the

child by forcibly taking the child away from the 1st petitioner.

13. In the aforesaid circumstances, this writ petition is allowed with a

direction to the 3rd respondent to take custody of the child and handover the

child to the 1st petitioner. However, it would be open to the 4th respondent to

move the appropriate Court ventilating his right for custody of the child. It is

further observed that none of the findings of this Court in the present writ

petition shall be relied upon by either party in the event of such application for

custody being moved before the appropriate Court. It is further clarified that

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any finding given by this Court, in the present order, is only for the purpose of

arriving at a conclusion of the matter and shall not be treated as binding on