Zaddu Sudhakar vs The State Of Telangana
2022 Latest Caselaw 2565 Tel

        THE HON'BLE DR. JUSTICE SHAMEEM AKTHER
                                     AND
        THE HON'BLE SMT. JUSTICE JUVVADI SRIVDEI

                  Writ Petition No.22211 of 2022


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 issue a writ order or direction, more particularly one in the nature of "HABEAS CORPUS" directing the Respondent No.2, to produce detenue the minor boys, i.e, Master Zaddu Krishna Tej Yadav and Master Zaddu Dharma Tej Yadav, before this Court forthwith, at the specified date and time, as directed by this Hon'ble Court and upon such production, to handover their temporary and permanent custody to the petitioner immediately, in the best interest of the children education, welfare, upbringing & their bright future and to enable the children to attend their classes regularly and to continue their education at The Hyderabad Public School, Ramanthapur, Hyderabad, in the best interest of their welfare in the interest of justice."

2. We have heard the submissions of the petitioner who

appeared as party-in-person, learned counsel for respondent

No.2/wife and perused the record.

3. The petitioner contends that the marriage between himself

and respondent No.2 was performed in the year 2012. It was an

arranged marriage. The respondent No.2 cheated him by

suppressing the fact that their family professes Christianity.

During the wedlock, they were blessed with two children, namely,

Master Zaddu Krishna Tej Yadav on 18.10.2013 and Master Zaddu Dr.SA & JS, JJ

Dharma Tej Yadav on 24.11.2016, the alleged detenus. Both the

children are prosecuting their studies at Hyderabad Public School,

Ramanthapur, Hyderabad. As a responsible father, the petitioner

has been bearing all the educational expenses of the alleged

detenus. However, both the children were forcefully taken away

by respondent No.2 in the month of March, 2022, and kept at

Tenali, Andhra Pradesh state. In fact, the respondent No.2 has

been suffering from pre-marital psychological disorder and other

health issues. Neither the respondent No.2 nor her family

members have love and affection towards the alleged detenus.

The atmosphere in which the alleged detenus are currently placed

is totally unconducive for their welfare and development. Being

the father, the petitioner is entitled for the custody of the alleged

detenus. The petitioner is working as Scientist in DRDO and he is

well settled and can look after the welfare of the alleged detenus.

The petitioner is entitled for the custody of the alleged detenus in

the best interest of their education, welfare and for their overall

development and ultimately prayed to allow the Writ Petition as

prayed for.

4. Per contra, the learned counsel for respondent No.2/wife

would contend that the alleged detenus have no inclination to live Dr.SA & JS, JJ

with their father (petitioner). The respondent No.2 and the alleged

detenus have been ill-treated by the petitioner several times. With

a fond hope that the petitioner would mend his attitude, the

respondent No.2 bore the harassment of the petitioner for nine

long years. Since there was no change in his cruel attitude, the

respondent No.2 left the company of the petitioner along with the

alleged detenus. The respondent No.2, being the natural mother,

has great love and affection and care for minor children. The

allegation that the respondent No.2 is suffering from pre-marital

psychological disorder and other health issues is false. On the

other hand, the petitioner is suffering from the same. The

respondent No.2 is the right person to take care of the children

and their 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 detenus 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 detenus is given to the petitioner against their will and

wish, it will have adverse impact upon the the alleged detenus'

future. Viewed from any angle, it is not a fit case to grant the Dr.SA & JS, JJ

relief sought by the petitioner and ultimately prayed to dismiss the

writ petition.

5. This Court, vide order, dated 07.06.2022, directed the

respondent No.2 to produce the alleged detenus, viz., Master

Zaddu Krishna Tej Yadav and Master Zaddu Dharma Tej Yadav

before this Court today, in order to ascertain their will and wish

vis-à-vis their custody. Pursuant to the said order, the alleged

detenus are produced before this Court today. This Court was

pleased to interact exclusively with the alleged detenus in the

chambers to know their will and wish. The alleged detenus

appeared to be quite intelligent and capable of answering the

questions put to them. Master Krishna Tej Yadav has stated that

he is 8 years old and studying IV standard at West Berry School,

Tenali. Master Dharma Tej Yadav stated that he 5 years old.

Respondent No.2 informed to this Court that she secured

admission for Master Dharma Tej Yadav into I Standard at West

Berry School, Tenali, and both the children are presently under the

guardianship of their mother (respondent No.2). When this Court

asked the alleged detenus as to with whom they intend to live, the

alleged detenus stated in unequivocal terms that they are inclined

to live with their mother, i.e., respondent No.2 and that they are Dr.SA & JS, JJ

not forcefully detained by anybody and expressed their desire to

continue to live with their mother. This Court verified as to

whether the alleged detenus are making statements voluntarily or

not. Both the children are mentally sound and not making

statements under pressure or coercion of anybody. Hence, this

Court is satisfied that the alleged detenus made statements

voluntarily, without any fear or coercion of anybody and that they

intend to live with their mother, i.e., respondent No.2.

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 wellbeing of the child. When the Court

is confronted with conflicting demands vis-à-vis 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:

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

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 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 detenus, who appeared to be quite intelligent,

expressed their interest/willingness to continue under the

guardianship of their mother, i.e., respondent No.2, it is not

appropriate to accede to the request of the petitioner to handover

the custody of the alleged detenus to him, as prayed for. Further,

since the alleged detenus clearly stated that they are living happily Dr.SA & JS, JJ

under the guardianship of their mother, i.e., respondent No.2 and

that they are not forcefully/illegally detained by anybody, no case

of illegal detention has been made out, as averred by the

petitioner. Disputed questions of fact cannot be decided in this

petition filed under Article 226 of the Constitution of India. 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 and growth of the children.

The petitioner, being the father of the alleged detenus, is equally

entitled to spend time with the alleged detenus to bestow his love

and affection on them. Therefore, the petitioner cannot be denied

visitation rights. Further, there is no objection from the side of the

respondent No.2 to grant visitation rights to the 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 detenus, who are in the custody of the respondent

No.2, on all Sundays between 03:00 PM and 06:00 PM, in the

presence of one of the elder persons of the family of respondent

No.2, at a park nearby the residence of respondent No.2 at Tenali, Dr.SA & JS, JJ

Andhra Pradesh State. This interim arrangement shall continue for

a period of four (4) weeks from today or till the petitioner files an

appropriate application for appointment of guardian to the alleged

detenus 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

______________________ JUVVADI SRIDEVI, J 10th June, 2022 Bvv