Shaik Beby vs The State Of Telangana
2021 Latest Caselaw 3762 Tel

          THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                                          AND
             THE HON'BLE SRI JUSTICE N.TUKARAMJI

           Writ Petition Nos.15118 and 15797 of 2021


COMMON ORDER: (Per Dr. Justice Shameem Akther)


     Since the issue involved in both these writ petitions is similar,

both these writ petitions are taken up together and are being

disposed of by this common order.


2.   W.P.No.15118 of 2021, under Article 226 of the Constitution of

India, is filed by the petitioners, wherein, the following prayer is

made:

     "...to issue any Writ Order or Direction more particularly one in the nature of
     Writ of Mandamus declaring the action of the respondents more particularly

respondent no.2 to 6 in interfering in personal life and liberty of petitioners, their family members, friends and witnesses of the marriage and trying to confine them as illegal, arbitrary, and in violation of Articles 14 21 and 300-A of Constitution of India besides in violation of principles of natural justice and consequently direct the respondents more particularly respondent no.2 to 6 not to interfere into personal life and liberty of the petitioners, their family members, friends and witnesses of the marriage and pass such other order or orders..."

3. W.P.No.15797 of 2021, under Article 226 of the Constitution of

India, is filed by the petitioners, wherein, the following prayer is

made:

"...to issue a writ or order or direction more particularly in the nature of WRIT OF HABEAS CORPUS and direct the Respondents more particularly the Respondents Nos 1 to 4 to rescue and produce the minor girl namely Tabassum Firdose @ Shaik Tabassum Begum, i.e., Respondent No 6 herein before this Hon'ble Court from the illegal and unlawful confinement of the Respondent No 5 and consequently direct the official respondents to handover the minor girl i.e., Respondent No 6 to her parents/petitioners, they being her lawful guardian at liberty and pass such other order or orders..."

4. We have heard the submissions of Sri G.Bhaskar Reddy, learned

counsel for petitioners in W.P.No.15118 of 2021, Sri Mohd. Afzaluddin

Dakhani, learned counsel for petitioners in W.P.No.15797 of 2021 and

respondent Nos.5 & 6 in W.P.No.15118 of 2021, Sri A.Manoj Kumar,

learned Assistant Government Pleader for Home representing the Dr.SA & NTR, JJ

official respondent Nos.1 to 4 in both the writ petitions and perused

the record.

5. Learned counsel for the petitioners in W.P.No.15797 of 2021,

who are respondent Nos.5 and 6 in W.P.No.15118 of 2021, would

contend that the petitioners are the parents of the alleged detenue-

Tabassum Firdose @ Shaik Tabassum Begum. Their marriage was

solemnized on 01.06.1995. During their wedlock, they are blessed

with four children. The alleged detenue is their youngest daughter,

who is a minor (16 years 3 months) and her date of birth is

20.03.2005. The copy of School Bonafide Certificate, dated

29.06.2021, issued by Mandal Parishad Primary School, Nagar Village,

Lokeshwaram Mandal, Nirmal District, reveals the same. On

27.06.2021, at about 21:30 hours, the alleged detenue and her

mother (petitioner No.1) had their dinner and went to bed. On the

next day morning, i.e., on 28.06.2021, the alleged detenue found

missing from the house. Though the petitioners and their family

members searched for her, they could not trace her whereabouts.

Therefore, they lodged a report with respondent No.4/SHO,

Lokeshwaram Police Station and a case of 'girl missing' was

registered, vide Crime No.42 of 2021. While the said crime was under

investigation, it was brought to the notice of the petitioners that one

Velmala Rakesh, S/o. Velmala Sayanna (respondent No.5

herein/petitioner No.2 in W.P.No.15118 of 2021) had kidnapped the

alleged detenue, compelled her with deceitful means and induced her

to go along with him. The petitioners were also informed that said

Velmala Rakesh and the alleged detenue, filed W.P.No.15118 of 2021

before this Court seeking a direction to these petitioners and the Dr.SA & NTR, JJ

police concerned not to interfere with life and liberty of themselves,

their family members, friends and witnesses to the marriage,

contending that both of them got married on 28.06.2021 at Arya

Samaj, Hyderabad, according to will and consent of the alleged

detenue. Velmala Rakesh is a habitual offender and he is arrayed as

accused in many criminal cases. Said Velmala Rakesh forcibly

kidnapped the alleged detenue and concocted a false and baseless

story of love marriage with the alleged detenue. There is a serious

threat to life and liberty of the alleged detenue in the hands of said

Velmala Rakesh and his associates. The petitioners also came to

know that the alleged detenue is continuously under harassment,

threat, sexual assault etc., in the hands of respondent No.5. Marriage

with a minor is illegal. All the efforts of the petitioners in contacting

the alleged detenue went in vain and accordingly sought a direction

as stated above.

6. Learned counsel for the petitioners in W.P.No.15118 of 2021,

who are respondent Nos.5 and 6 in W.P.No.15797 of 2021, would

submit that the petitioner Nos.1 and 2 are the alleged detenue and

Velmala Rakesh respectively. The alleged detenue studied up to 5th

standard. She and Velmala Rakesh fell in love with each other, as

both of them belong to the same village. Out of love, affection and

intimacy, both of them decided to get married and informed the same

to the parents of the alleged detenue. However, their love was not

accepted by the family members of the alleged detenue on various

grounds, including religious ground. Her parents started ill-treating

her from the day she expressed her intention to marry Velmala

Rakesh. The alleged detenue was harassed and was also threatened Dr.SA & NTR, JJ

with dire consequences by her parents. She was not provided mobile

phone and was detained in a single room. However, she managed to

escape from her parents on 27.06.2021 midnight and approached

Velmala Rakesh. Both of them left the village and got married on

28.06.2021 at Arya Samaj Mandir, Jeedimetla, Hyderabad, in

accordance with Vedic rituals. After getting married, they informed

about their marriage to the local police and requested them not to

harass the family members of Velmala Rakesh, his friends and

witnesses to the marriage. By giving a deaf ear to the said request,

the local police started enquiring about their whereabouts and visiting

their residences at odd hours. Though the alleged detenue and

Velmala Rakesh are majors and got married as per their own will and

wish, the police concerned, under the influence of unofficial

respondents (parents of alleged detenue) are harassing them and

ultimately sought a direction as stated above.

7. The learned Assistant Government Pleader for Home appearing

for the official respondent Nos.1 to 4 in both these writ petitions

would contend that this Court, vide order, dated 07.07.2021, passed

in W.P.No.15118 of 2021, directed the police to give protection to the

alleged detenue and Velmala Rakesh, granting liberty to investigate

into Crime No.42 of 2021, including the age of the alleged detenue.

This Court further directed the learned Assistant Government for

Home to furnish a copy of Bonafide certificate of the alleged detenue

to the learned counsel for the petitioners therein. It was further

directed that till 27.07.2021, the SHO shall not arrest Velmala Rakesh

under the guise of investigation in Crime No.42 of 2021 and if the

SHO concerned comes to a conclusion to conduct test to determine Dr.SA & NTR, JJ

the age of the alleged detenue, he is at liberty to make a mention

before this Court seeking clarification. During the course of

investigation in Crime No.42 of 2021, as many as five witnesses were

examined and their statements under Section 161 Cr.P.C. were

recorded. In the Bonafide certificate of the alleged detenue, her age

is mentioned as 16 years. The case is under investigation, i.e., to

trace out and record the statements of the alleged detenue. The SHO

concerned filed I.A.No.2 of 2021 in W.P.No.15118 of 2021 seeking a

direction to the mother of the alleged detenue to approach the

Investigating agency for the purpose of recording her statement to

determine the age of the alleged detenue, and the said I.A. is pending

before this Court. The SHO concerned is making sincere efforts to

record the statement of the alleged detenue under Section 161 of

Cr.P.C. and to determine her age and proceed with further

investigation.

8. This Court, vide orders, dated 22.11.2021 and 24.11.2021,

directed Velmala Rakesh to produce the alleged detenue before this

Court, in order to ascertain her will and wish. Pursuant to the said

orders, the alleged detenue is produced before this Court today. This

Court was pleased to interact with the alleged detenue in the

chambers, in the presence of learned counsel for petitioners in both

these writ petitions and the Assistant Government Pleader for Home.

The alleged detenue appeared to be quite intelligent and capable of

making her own decisions. She categorically stated that her name is

Shaik Tabassum Firdouz, D/o.Shaik Omar and she is 16 years old as

on today. She further stated that she studied up to 7th standard at

Government Girls High School, Bhainsa, Nirmal District, and Dr.SA & NTR, JJ

presently, she is residing with Velmala Rakesh. She further stated

that both of them got married on 28.06.2021 at Arya Samaj,

Hyderabad. On questioning as with whom she intends to live now,

the alleged detenue categorically stated that she intends to live with

her parents, i.e., writ petitioners in W.P.No.15797 of 2021 and

respondent Nos.5 and 6 in W.P.No.15118 of 2021. This Court

verified as to whether she is making statements voluntarily or not.

She appears to be mentally sound and not making statements under

pressure or coercion of anybody. Hence, this Court is satisfied that

she made statements voluntarily, without any fear or coercion of

anybody and that she intends to live with her parents, i.e. petitioners

in W.P.No.15797 of 2021 and respondent Nos.5 and 6 in

W.P.No.15118 of 2021.

9. Here, it is apt to state that Article 21 of the Constitution

mandates that no person shall be deprived of life and liberty, except

in accordance with the procedure established by law. Whenever a

question arises before the Court pertaining to the custody of a

child/minor, the matter is to be decided not on legalistic basis, but on

the sole and predominant criterion of what would best serve the

interest and welfare of the child/minor. In this context, the word

'welfare' has to be construed literally and must be taken in its widest

sense. All necessary aspects should weigh with the Court with regard

to welfare of the child/minor while granting his/her custody. Though

sufficient protection is given in the special statutes to the rights of

the parents/guardians, there is nothing which can stand in the way of

the Court exercising its parens patriae jurisdiction arising in such

cases. Further, a Writ of Habeas Corpus is a writ calling upon the Dr.SA & NTR, JJ

person who has detained another person, to present the person in

the Court and justify his actions as to on what grounds and under

what authority he/she has confined that person. If the Court does

not find any legal justification for detention, then it will order for the

immediate release of the person confined or imprisoned. However, it

does not absolve any person from his liability. It demands lawful

justification for detention and protects the person from any kind of ill-

treatment and discrimination from the authority/person, which/who

detained the person.

10. While dealing with the matter involving custody of children, the

Hon'ble Apex Court, in Yashita Sahu Vs. State of Rajasthan and

others1, in paragraph Nos.17, 18 and 19, observed as follows:

17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands, then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.

18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.

19. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents.

(2020) 3 SCC 67 Dr.SA & NTR, JJ

11. In the instant case, since the alleged detenue stated in

unequivocal terms, with her free will and consent and without any

fear and coercion from anybody, that she intends to live with her

parents and in view of her statements that she is 16 years old as on

today, which is supported by a photocopy of School Bonafide

Certificate, dated 29.06.2021, issued by Mandal Parishad Primary

School, Nagar Village, Lokeshwaram Mandal, Nirmal District, where

her date of birth is mentioned as 20.03.2005 which the alleged

detenue stated to be belonging to her, we are of the considered

opinion that the 'welfare' of the alleged detenue would be best served

by granting her custody to her parents.

12. Accordingly, the custody of the alleged detenue-Tabassum

Firdose @ Shaik Tabassum Begum is granted to her parents, i.e.,

petitioners in W.P.No.15797 of 2021 and respondent Nos.5 and 6 in

W.P.No.15118 of 2021. Velmala Rakesh (respondent No.5 in

W.P.No.15797 of 2021 and petitioner No.2 in W.P.No.15118 of 2021)

is directed to hand over the custody of the alleged detenue to her

parents as indicated above, forthwith and the custody of the alleged

detenue has been handed over to her parents in the presence of this

Court. W.P.No.15797 of 2021 is disposed of accordingly.

13. Insofar as W.P.No.15118 of 2021 is concerned, in view of the

orders passed in W.P.No.15797 of 2021 handing over the custody of

the alleged detenue to her parents, the petitioners herein are not

entitled for the relief sought in this writ petition. Though the

petitioners in this writ petition filed a copy of AADHAR Card of the Dr.SA & NTR, JJ

alleged detenue which shows her date of birth as 18.06.2002 and

contended that the alleged detenue is major, this Court is not inclined

to decide age of the alleged detenue, in view of the limited scope of

writ of Habeas Corpus. It is left open to the authorities concerned to

take necessary steps for determining the age of the alleged detenue.

Further, since a criminal case vide Crime No.42 of 2021 of

Lokeshwaram Police Station, has been registered under the head of

'girl missing', it is required to be investigated in accordance with law.

Accordingly, the investigating officer of the said crime is directed to

proceed with investigation strictly in accordance with law, without

being influenced by any of the observations made in this common

order. With the above observations, W.P.No.15118 of 2021 is also

disposed of.

Miscellaneous petitions, if any, pending in both these writ

petitions, shall stand closed. There shall be no order as to costs.

______________________ Dr. SHAMEEM AKTHER, J

______________________ N.TUKARAMJI, J

25th November, 2021 Bvv