Dondeti Yugandhar vs The State Of Telangana
2021 Latest Caselaw 3809 Tel

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

                  Writ Petition No.12930 of 2021


ORDER (Per Dr. Justice Shameem Akther)

This writ petition, under Article 226 of the Constitution of

India, is filed by the petitioner/husband, wherein, the following

prayer is made:

"...to pass an order or direction or writ in the nature of Habeas Corpus duly declaring the action of the 3rd respondent herein in taking the son of the petitioner Dondeti Parthasaradhi, and handing over him to the 5th respondent as illegal, arbitrary and without jurisdiction and consequently direct the 3rd respondent to produce the Dondeti Parthasaradhi before this court and hand over him to the petitioner in the interest of justice and to pass such other and further orders..."

2. We have heard the submissions of Sri P.Rama Sharana

Sharma, learned counsel for the petitioner/husband, Sri Prabhakar

Sripada, learned counsel for the unofficial respondent No.5/wife

and perused the record.

3. Learned counsel for the petitioner would submit that the

petitioner married respondent No.5 in the year 2007 by which

time, she was a divorcee and was having a daughter by name

Himavarsha through her first husband. During the wedlock of

petitioner and respondent No.5, they are blessed with a son by

name parthasaradhi, the alleged detenu. Disputes arose between

the couple and the respondent No.5 left the company of the

petitioner without any cause, leaving the alleged detenu with the

petitioner. Subsequently, respondent No.5 lodged a complaint

against the petitioner with Police, Manuguru, for the offences

punishable under Sections 498A & 420 of IPC. The said case ended Dr.SA & NTR, JJ

in compromise before the Lok Adalat in the year 2014. All of a

sudden, in the year 2020, the respondent No.5 lodged a complaint

with the police, Manuguru, seeking custody of the alleged detenu.

The police concerned called the petitioner and forcefully handed

over the custody of the alleged detenu to respondent No.5. The

petitioner has been looking after the welfare of the alleged detenu,

who is so much attached to the petitioner. Presently, the

respondent No.5 is living at Hyderabad along with her daughter.

Having did not bother about the alleged detenu for several years,

the respondent No.5 suddenly started demanding his custody. The

alleged detenu is forcefully detained by respondent No.5 against

his will, though he is inclined to live with the petitioner. The

petitioner is entitled for custody of the alleged detenu in view of his

inclination to live with the petitioner and ultimately prayed to allow

the Writ Petition as prayed for.

4. Per contra, the learned counsel for unofficial respondent

No.5/wife would contend that the alleged detenu, on his own will

and wish, is voluntarily residing with respondent No.5. The alleged

detenu has no inclination to live with his father, i.e., the petitioner

herein. The petitioner is unemployed and lives at the mercy of his

father and has no means to look after the welfare of the alleged

detenu. Further, he is addicted to vices. In fact, the alleged

detenu was living with respondent No.5 from 2014 to 2019. The

petitioner forcefully took away the alleged detenu in the year 2019.

With great difficulty and at the intervention of elders and relatives,

the respondent No.5 got back the custody of the alleged detenu.

The respondent No.5 is a working woman and has sufficient means Dr.SA & NTR, JJ

to look after the welfare of the alleged detenu, including his

education. A writ of Habeas Corpus cannot be issued, when a

person is not in illegal/unlawful detention of anybody. Since there

is no forceful or illegal/unlawful detention of the alleged detenu as

alleged, the present writ petition is not maintainable. Further,

while deciding the question of custody of children, the paramount

interest to be taken into consideration is the welfare of the child.

In the instant case, if the custody of the alleged detenu is given to

the petitioner against his will and wish, it will have adverse impact

upon the the alleged detenu's future. Viewed from any angle, it is

not a fit case to grant the relief sought by the petitioner and

ultimately prayed to dismiss the writ petition.

5. This Court, vide order, dated 15.11.2021, directed the

respondent No.5 to produce the alleged detenu, viz., Dondeti

Parthasaradhi before this Court today, in order to ascertain his will

and wish qua his custody. Pursuant to the said order, the alleged

detenu is produced before this Court today. This Court was

pleased to interact with the alleged detenu in the chambers to

know his will and wish. The alleged detenu appeared to be quite

intelligent and capable of making his own decisions. The alleged

detenu stated that his name is Parathasaradhi, he is 14 years old,

he is studying 9th Standard in Sai English Medium High School,

KPHB 6th Phase, Hyderabad, and he is presently under the

guardianship of his mother. When this Court asked the alleged

detenu as to with whom he intends to live, the alleged detenu

stated in unequivocal terms that he is inclined to live with his

mother, i.e., respondent No.5 and that he is not forcefully detained Dr.SA & NTR, JJ

by anybody and expressed his desire to continue to live with his

mother. This Court verified as to whether the alleged detenu is

making statements voluntarily or not. The alleged detenu appears

to be mentally sound and not making statements under pressure or

coercion of anybody. Hence, this Court is satisfied that the alleged

detenu made statements voluntarily, without any fear or coercion

of anybody and that he intends to live with his mother, i.e.,

respondent No.5.

6. The law relating to custody of a child is fairly well settled. In

selecting proper guardian of a child, the paramount consideration

should be the welfare and well-being of the child. When the Court

is confronted with conflicting demands qua custody of children, it

has to strike the balance to justify the demands. A Court, while

dealing with the cases relating to child custody, is neither bound by

statutes nor by strict rules of evidence or procedure, nor by

precedents. It is a humane problem and is required to be viewed

from human angle. 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 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.

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

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

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.

7. Bearing in mind the above principle laid down by the Hon'ble

Apex Court, this Court is pleased to examine the contentions raised

by both the sides to arrive at a decision in the instant case. Since

the alleged detenu, who appeared to be quite intelligent and

capable of taking decisions on his own, expressed his

interest/willingness to continue under the guardianship of his

mother, i.e., respondent No.5, it is not appropriate to accede the

request of the petitioner to handover the custody of the alleged

detenu to him. Further, since the alleged detenu clearly stated

that he is living happily under the guardianship of his mother, i.e.,

respondent No.5 and that he is not forcefully/illegally detained by

anybody, no case of illegal detention has been made out, as

averred by the petitioner. In the circumstances of the case, it is

open to the petitioner to work out the remedies available to him

before the appropriate Court.

8. Further, the love and affection of both the parents is required

for the overall development of the child. The petitioner, being the

father of the alleged detenu, is equally entitled to spend time with

the alleged detenu to bestow his love and affection on him.

Therefore, the petitioner cannot be denied visitation rights of the

alleged detenu altogether. Further, there is no objection from the

side of the respondent No.5 to grant visitation rights to the Dr.SA & NTR, JJ

petitioner. In view of the same, this Court deems it appropriate to

order as follows:

"The petitioner herein is permitted to see and interact with

the alleged detenu, who is in the custody of the unofficial

respondent No.5, every fortnight, preferably on Sunday, between

03:00 PM and 06:00 PM, in the presence of respondent No.5 herein

or any other relative of her, at Abdul Kalam Park, Kukatpally,

Hyderabad. This interim arrangement shall continue for a period of

three (3) months from today or till the petitioner files an

appropriate application for appointment of guardian to the alleged

detenu before the Family Court concerned, whichever is earlier.

On filing of such an application by the petitioner, the Court

concerned shall dispose of the same, in accordance with law,

without being influenced by the observations made in this order.

Both the parties shall strictly adhere to the aforesaid interim

arrangement without any deviations or violations."

9. With the above observations/directions, this Writ Petition is

disposed of. No costs.

Miscellaneous petitions, if any, pending in this writ petition,

shall stand closed.

______________________ Dr. SHAMEEM AKTHER, J

______________________ N.TUKARAMJI, J 29th November, 2021 Bvv