Telangana High Court

Smt. Dr. B. Priyanka vs The State Of Telangana on 22 December, 2023

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

              HON'BLE SRI JUSTICE K. LAKSHMAN
                                   AND
            HON'BLE SMT. JUSTICE P.SREE SUDHA

                 WRIT PETITION No.32696 of 2023

ORDER:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. T. Pradyumna Kumar Reddy, learned Senior

Counsel representing Sri Ravinder Reddy Muppu, leaned counsel for

the petitioner, Sri Godugu Mallesham, learned Asst. Govt.Pleader for

respondents 1 to 3 and Sri A.Prabhakar Rao, learned counsel for 4th

respondent.

2. This writ petition is filed seeking a direction to the

respondents 1 to 3 to produce the minor children i.e. Baby D.Devanshi

aged about 7 years and Baby D.Vivanshi, aged about 2 years from the

unlawful custody of 4th respondent, their natural father, before the

Court and to hand over the children to the petitioner, their natural

mother.

Facts of the case:-

3. The marriage of the petitioner is performed with 4th

respondent who is none other than the son of the petitioners' paternal

aunt on 15.08.2014. It is a love marriage. They are blessed with two

daughters i.e. Baby D. Devanshu born on 12.11.2016 aged about 7

years and Baby D. Vivanshi, born on 12.08.2021 aged about 2 years

Thereafter, disputes arose between them. According to the petitioner,

4th respondent and his family members harassed her both physically

and mentally saying that she gave birth to female children. 4th

respondent necked her out of their house on 05.05.2023. Since then

she along with her two daughters is residing at her parents house. On

23.06.2023, 4th respondent, without her permission, took away elder

child from school. On the next day, he requested her parents to attend

family function at his house and to send the younger daughter and

assured that he will return both the children soon. When she asked

him to return the children, he demanded 20 lakhs as dowry, otherwise

he would not return the children. On 05.07.2023, she went to his

house and asked to hand over the children, for which he along with his

mother D. Vijayalakshmi and his brother D. Rajesh refused to hand

over her children. Instead of returning the children, they beat her,

abused and snatched her cell phone. Then she lodged a complaint with

3rd respondent against them alleging that 4th respondent demanded

Rs.20,00,000/- from her to return her children. Despite receiving and

acknowledging the same, 3rd respondent did not register any case and

not taken any action. Thereafter, she made a complaint before the

Deputy Commissioner of Police, West Zone, Hyderabad on

10.07.2023 but no action was taken. Then she lodged a complaint on

13.07.2023 before 2nd respondent but in vain for the reasons best

known to them. Aggrieved by the inaction of the official respondents,

she has filed W.P.No.20657 of 2023 seeking a direction to 3rd

respondent to register FIR and to hand over her children to her. Later

she withdrew the same and filed the present writ petition. If the

custody of the children is not given, she and her children are put to

mental agony. Therefore, the present writ petition.

4. On the other hand, opposing the said allegations, admitting

the marriage and children, 4th respondent filed counter contending that

the petitioner was a medical graduate by the time of marriage. She

prosecuted Post Graduation in MIX (Radiology) in a private Medical

College. She also started doing private medical practice at Bachupally

in the name of 'Sunshine Medical Diagnostic Centre in the month of

September, 2022. There she developed acquaintance with one Karthik

who was working as supervisor of the building where her clinic is

located. Since December, 2022 she completely stopped to attend

household duties and taking care of the children. He found drastic

change in her conduct. On verifying her call list, it was found that

herself and Mr. Karthik exchanged messages and some financial

transactions were also taken place between them. The said

acquaintance was developed into illicit relationship. The petitioner

and Karthik were regularly having chatting on phone. In the 2nd week

of May 2023, when he questioned her conduct and the relationship

with said Karthik, she left the house along with children without

intimating him and his family members and started residing with her

parents. Thereafter, he went to his in-laws house, informed them about

her relationship, shown the messages exchanged in between them and

screen shots of money transactions for which they assured him to take

steps for closure of the diagnostic centre.

5. It is further contended that the petitioner on the request of her

parents came to his house along with children, but continued

relationship with said Karthik. When he questioned, she left the house

leaving the children with him. The children are prosecuting their

studies in Sister Nivedithi School, Ameerpet. The petitioner filed

W.P.No.20657 of 2023 without making him as party. The said writ

petition was dismissed as withdrawn. Thereafter the present writ

petition is filed. 4th respondent filed a complaint under Section 200

Cr.P.C. vide Crl.(SR) No.3390 of 2023 before XI Additional Chief

Metropolitan Magistrate, Medchal-Malkajgiri district at Kukatpally.

The Learned Magistrate recorded his statement on 04.07.2023. The

private complaint is pending for consideration.

6. He further stated that on 25.04.2023, he red handedly caught

the petitioner and said Karthik in a room on 4th floor of the diagnostic

center building and took away cell phone of the petitioner and said

Karthik skipped away from the spot. After disclosure of their illicit

relationship, they started threatening him to eliminate him and

children if he does not accept their illicit relationship. Even on

20.05.2023, the said Karthik came to the diagnostic center and

threatened him not to take any legal steps against the petitioner. Thus,

he is apprehending threat to his life and lives of the children from the

petitioner. Therefore, he sought to dismiss the writ petition.

7. The aforesaid facts would reveal that the petitioner is legally

wedded wife of 4th respondent who is none other than the son of her

paternal aunt. The said marriage is a love marriage. They blessed with

two daughters i.e. Baby D. Devanshu aged about 7 years born on

12.11.2016 and Baby D. Vivanshi aged about 2 years, born on

12.08.2021. Thereafter, disputes arose between them. According to

the petitioner herein, 4th respondent and his family members harassed

her both physically and mentally saying that she gave birth to female

children and necked her out on 05.05.2023. Since then, she and her

daughters have taken shelter with her parents. On 23.06.2023,

4th respondent without permission took away her elder daughter from

school by informing the school teachers that he would bring her back

on Monday. Thereafter, on the next day, 4th respondent has requested

parents of the petitioner to attend family function at his house, to send

her younger daughter with an assurance that he will return both the

children by coming Monday. But there is no mention in the writ

affidavit whether the parents of the petitioner accepted the request

made by the 4th respondent to send the younger daughter to his house

and sent. However, according to the petitioner, both the children were

with 4th respondent and when she asked 4th respondent to return the

children on Monday, he started demanding an amount of Rs.20 Lakhs

as dowry, otherwise he would not return the children.

8. It is further contended by the petitioner that when

4th respondent failed to return the children, she visited house of 4th

respondent with a request to hand over the children on 05.07.2023 for

which respondent No.4, his mother and brother refused to hand over

the children. On the other hand, he beat her and his mother abused her,

pushed her out of their house by snatching away her cell phone. She

lodged a complaint with 3rd respondent on 05.07.2023. Despite

receiving and acknowledging the said complaint, 3rd respondent did

not act upon the same. Therefore, she made a complaint with the

Deputy Commissioner of the Police, West Zone, on 10.07.2023 and

also with 2nd respondent on 13.07.2023. Even then, there is no action

from the respondents. She filed a writ petition vide W.P.No.20657 of

2023 seeking a direction to official respondents to register FIR and

produce her daughter. The same was dismissed as withdrawn.

9. According to the learned Asst. Govt.Pleader appearing for

respondents 1 to 3, complaint filed by 4th respondent under Section

200 Cr.P.C. is pending and therefore, petitioner has to approach

competent Court seeking custody of minor children.

Findings of the Court:-

10. This is a writ of Habeas Corpus. The proceedings in a writ

of Habeas Corpus are summary in nature. We have to decide the same

basing on the affidavits filed by the parties. In the present writ

petition, we have to consider as to whether the minor children are in

illegal custody of 4th respondent as alleged by the petitioner. In a

matter like this, welfare of the child is paramount consideration while

deciding this writ petition.

11. Habeas Corpus proceedings are not to justify or examine the

legality of the custody. The Habeas corpus proceedings is a medium

through which custody of child is addressed to the discretion of the

Court. Habeas Corpus is a prerogative writ which is an extra ordinary

remedy and the writ is issued in the circumstances of a particular case

where ordinary remedy provided by the law is either invaluable or is

ineffective, otherwise a writ will not be issued in child custody

matters. The power of High Court in granting writ is qualified only in

cases where the detention of minor is to a person who is not entitled to

his legal custody. In view of the same, in child custody matters, writ

of Habeas Corpus is maintainable where it is approved that the

detention of a minor child or parents and others is illegal without any

authority of law.

12. It is relevant to note that this Court in Tarannum Naaz v.

The State of Telangana 1 considered the several aspects and law laid

down by the Apex Court in deciding the custody petitions. In

paragraph No.59 of the said judgment, this Court observed that while

MANU/TL/0956/2023

deciding a petition for custody of the minor children, the following

crucial factors are to be kept in mind by the Courts for gauging the

welfare of the children equally for the parents:-

1. Maturity and judgment,

2. Mental stability,

3. Ability to provide access to schools,

4. Moral character,

5. Ability to provide continuing involvement in the community,

6. Financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parents as an individual.

13. In the aforesaid cases, the Apex Court has taken a view that

the High Court may invoke extra ordinary jurisdiction to determine

the legality of the detention. The High Court has to decide the Habeas

Corpus petition by conducting summary proceedings basing on the

affidavits filed by the parties. The High Court has to examine each

case basing on its own facts and circumstances on case to case basis.

There will not be any straightjacket formula in deciding the custody

matters. Finally High Court has to decide whether the custody is

lawful or not.

14. In the light of the aforesaid principles laid down by the

Apex Court, coming to the case on hand, as discussed supra, there are

serious allegations made by the petitioner as well as 4th respondent.

According to the petitioner, 4th respondent abducted the children and

they are in his illegal custody. He is demanding an amount of Rs.20

Lakhs to return the children. He has taken first child from the school

without permission and second child on the pretext of family function

and did not return.

15. According to 4th respondent, petitioner is maintaining illicit

relation with one Karthik and in proof of the same, he has filed

photographs, whatsapp chats and hotel bills etc. However, learned

counsel for the petitioner disputes the same contending that 4th

respondent created the same only to defame the petitioner. The said

aspects which are serious disputed questions of fact which we cannot

decide in exercise of power under Article 226 of Constitution of India.

It is the Family Court which has power to decide the same on

conducting full-fledged trial.

16. Admittedly, the children are female children. Their age is

tender age. They need care and support of mother. In normal

circumstances, the mother is entitled for custody of the children. But

in the present case, facts are slightly different. As discussed supra,

both the petitioner and 4th respondents are making serious allegations

against each other which will be considered by Family Ccourt after

conducting full fledged trial.

17. Welfare of minor children is paramount consideration while

deciding custody petitions. Both the minor children are with 4th

respondent from 23.06.2023 and 24.06.2023. The petitioner, except

stating that she has lodged a complaint with the Police, she has not

initiated any other steps to seek custody of the minor children.

According to 4th respondent he is staying with his parents and his

mother is taking care of the minor children apart from 4th respondent

and his father.

18. As discussed supra, in the present writ petition, we have to

decide as to whether there is detention much less illegal detention of

minor children by 4th respondent. In the light of the aforesaid

discussion, we are of the considered opinion that there is no abduction

or detention much less illegal detention of the minor children by 4th

respondent. Therefore, the petitioner has to approach jurisdictional

Family Court seeking custody of minor children by filing appropriate

application and Family Court will have benefit of considering the

material on record, interacting with the parties and children and decide

the said petition after conducting full-fledged trial.

19. In view of the aforesaid discussion, this writ petition is

disposed of holding that :-

i. The petitioner is not entitled for custody of the minor children

i.e. Baby D.Devanshi aged about 7 years and Baby D.Vivanshi,

aged about 2 years.

ii. Liberty is granted to the petitioner to file appropriate

application in terms of Section 7 of the Guardians and Wards

Act, seeking to declare her as a guardian, appropriate

application seeking custody of the minor children before the

juridictional Family Court which will have the benefit of

interacting with the parties and minor children and consider the

entire material on record, other relevant factors on the subject

matter and decide the said application.

iii. Liberty is also granted to the parties to raise all the contentions

and grounds raised in the present writ petition before the Family

Court and it is for the said Court to consider the same and pass

appropriate orders in accordance with law.

Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.