Telangana High Court
Mohd. Riyazuddin vs The State Of Telangana on 15 November, 2023
Bench: K.Lakshman, K. Sujana
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.24817 OF 2023
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. K.Jamali, learned counsel for the petitioner,
Sri G. Mallesham, learned Assistant Government Pleader appearing
for respondents 1 to 4 and Sri Palle Sriharinath, learned counsel
appearing for respondents 5 and 6.
2. This writ petition is filed to direct the respondents 2 to
4/Police officials, to produce his minor children namely i) Mohammed
Arshad aged about 6 ½ and ii) Shifa Noorain, aged about and 4 ½
years of Mohammed Riyazuddin before the Court.
3. Marriage of the petitioner with Saba Begum, daughter of
respondents 5 and 6 was performed on 08.04.2016. It is an arranged
marriage. They blessed with a baby boy i.e.'Mohammed Arshad' on
24.04.2017, he is aged about 6½ years and a baby girl by name 'Shifa
Noorain' on 13.06.2019 and she is aged about 4 ½ years. Wife of the
petitioner committed suicide on 05-01-2022. On the complaint lodged
by her parents i.e. respondents 5 and 6, a case in Crime No.3 of 2022
for the offences punishable under Section 304-B read with 34 of IPC
was registered against him and his parents by Jharasangam Police
Station, Zaheerabad. He was sent to Judicial Custody and released on
bail. While he was in judicial custody, his children stayed with
respondents 5 and 6 at Satwar Village, Zaheerabad Mandal. After
release, the children stayed with him. On 27.07.2023 respondents 5
and 6 came to his house, took the children for short period to their
house, but not sent them back yet. In spite of his efforts, he could not
trace his children. When he contacted the respondents 5 and 6 on
phone, they gave evasive replies and did not disclose whereabouts of
his children. On 24.08.2023, he went to the respondents 5 and 6 at
Satwar Village wherein he did not find his children. Then, he lodged a
Complaint with Jharasangam Police Station, with a request to trace his
children but they did not respond. He sent the complaint to the Higher
Police officials on 26-08-2023 but in vain.
4. On the other hand, the respondents 5 and 6 filed counter
denying the allegations leveled against them. They have admitted the
marriage of their daughter with the petitioner, birth of the children out
of the wedlock and also suicide of her daughter. They further stated
that after the marriage, the petitioner and his family members harassed
their daughter physically and mentally demanding for additional
dowry, due to which their daughter committed suicide on 05-01-2022.
Since it is an unnatural death, they lodged a complaint on 06-01-2022
against the petitioner and his family members with Jharasangam
Police who in turn registered as a case in crime No.3 of 2022 for the
offence punishable under Section 304-B read with 34 IPC. The
petitioner was arrested and sent to judicial custody on 12.01.2023. His
family members are absconded.
5. From the day of demise of their daughter, the petitioner and
his family members neglected the children. They took the children to
their home, joined in UPS Urdu Medium School in their village, and
now they are studying well. The children do not wish to go back to his
father. The petitioner herein is working in Mobile shop from
9-00 a.m., to 9-00 p.m., and staying separately with his parents. In
case the custody of the minor children is given to him, nobody is there
to take care of the children. After release on bail, the petitioner never
came to see the children. From the date of judicial custody of the
petitioner, the children are staying with them without any force and
coercion. Therefore, the custody of their grand children is lawful,
there is no detention much less illegal detention of the children as
alleged. After demise of their daughter, the petitioner, being father of
the minor children, refused the children and necked them out. The
petitioner ill-treated the children with ruthless behaviour. They have
also placed reliance on judgments of the Apex Court in support of
their case. With the said submissions, they sought to dismiss the writ
petition.
6. According to the learned Special Govt.Pleader, the
investigation in the aforesaid crime is pending. The parties have to
approach competent Court seeking custody of the minor children.
7. Both the parties have narrated the disputes in writ affidavit
and counter affidavit. Referring the said disputes in detail is not
required to decide the present writ petition of Habeas Corpus.
8. This is a writ of Habeas Corpus. The proceedings in writ of
Habeas Corpus are summary in nature. In the present writ petition, we
have to consider as to whether the minor children are in illegal
custody of respondents 5 and 6 as alleged by the petitioner. Welfare of
the children is paramount consideration while deciding this writ
petition. Admittedly, the children are 6 ½ and 4 ½ years. It is tender
age.
9. The aforesaid facts would reveal that there are serious
disputes between the petitioner and the respondents 5 and 6. A
criminal case is pending against the petitioner herein on the complaint
lodged by the respondent 5 and 6 for the suicide committed by their
daughter, mother of the minor children. Investigation is pending in the
said crime. According to the respondents 5 and 6, from the day of
demise of their daughter, the petitioner and his family members
neglected the children. Respondents 5 and 6 are taking care of the
minor children by providing them education etc. The children are not
willing to go to the petitioner. The petitioner, being father, neglected
the children.
10. 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.
11. As held by the Apex Court, 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. Finally High Court has
to decide whether the custody is lawful or not.
12. As discussed supra, while deciding a petition for custody of
the minor child, welfare of the minor child is paramount
consideration. The Apex Court in Lahari Sakhamuri Vs. Sobhan
Kodali 1 considered the following as the crucial factors which have 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,
(2019) 7 SCC 311
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 Ruchi Majoo Vs. Sanjeev Majoo 2, the Apex Court held
that nothing prevents the High Court from embarking upon a detailed
enquiry in cases where the welfare of a minor is in question, which is
the paramount consideration for the Court while exercising its parens
patriae jurisdiction. A High Court may, therefore, invoke its extra
ordinary jurisdiction to determine the validity of the detention, in
cases that fall within its jurisdiction and may also issue orders as to
custody of the minor depending upon how the court views the rival
claims, if any, to such custody.
14. In Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari 3,
the Apex Court held that the court while deciding the child custody
cases is not bound by the mere legal right of the parent or guardian.
Though the provisions of the special statutes govern the rights of the
(2011) 6 SCC 479
(2019) 7 SCC 42
parents or guardians, but the welfare of the minor is the supreme
consideration in cases concerning custody of the minor child. The
paramount consideration for the court ought to be child interest and
welfare of the child.
15. In Kamla Devi v. State of H.P. 4, it was held that in
deciding a difficult and complex question as to the custody of a minor,
a court of law should keep in mind the relevant statutes and the rights
flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem and is required to
be solved with human statues nor by strict rules of evidence or
procedure not by precedents. In selecting proper guardian of an minor,
the paramount consideration should be the welfare and well being of
the child. In selecting a guardian, the Court is exercising parens
patriae jurisdiction and is expected, may bound, to give due weight to
a child's ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings. But over and above,
physical comforts, moral and ethical values cannot be ignored. They
AIR 1987 HP 34
are equally, even more important, essential and indispensable
considerations.
16. In Gaurav Nagpal vs Sumedha Nagpal5, the Apex Court
as follows:-
The dominant matter for the consideration of the court is the
welfare of the child. But the welfare of the child is not to be
measured by money only nor merely physical comfort. The word
"welfare must be taken in its widest sense. The moral or religious
welfare of the child must be considered as well as its physical well
being. Nor can the tie of affection be disregarded.
17. In view of the above legal position, coming to the case on
hand, as discussed supra, admittedly there are serious disputes
between the petitioner and the respondents 5 and 6. Daughter of
respondents 5 and 6 committed suicide. The children lost their mother.
A criminal case is pending against the petitioner herein on the
complaint lodged by the respondent 5 and 6. According to respondents
5 and 6, their daughter committed suicide due to intolerable
harassment of the petitioner herein. Therefore, the children aged about
6½ years and 4½ years became panic. It is tender age. They require
proper care and protection. They need congenial atmosphere. One of
(2009) 1 SCC 42
the children is a female child. Investigation is pending in the said
crime. According to the respondents 5 and 6, from the day of demise
of their daughter, the petitioner and his family members neglected the
children. Respondents 5 and 6 are looking after the welfare of the
children. The children are admitted in schools and they are
comfortable and happy with their maternal grandparents who are
looking after their welfare. The children are not willing to go to the
petitioner. We do not want to disturb them. Therefore, we are of the
considered view that the children should be with their maternal
grandparents for the present.
18. As stated supra, there are special statutes governing the
rights of the guardians, but the welfare of the minor is the supreme
consideration in cases concerning custody of the minor children.
Welfare of the child is paramount consideration for the courts in
custody matters. The respondents in their counter specifically stated
that the petitioner herein is working in mobile shop from 9.00 A.M. to
9.00 P.M. and staying separately from his parents. In the writ
affidavit, he did not mention his income source and other aspects to
take care of the welfare and protection of the minor children including
a female child. Therefore, we are of the considered view that it is just
and necessary that the children should be with their maternal
grandparents. However, the petitioner herein being father is entitled to
visitation rights and also interim custody of the children etc.
Therefore, liberty is granted to the petitioner to approach a competent
Family Court by way of filing appropriate applications seeking
guardianship and interim custody and visitation rights etc. The said
Family Court will have the benefit of interacting with the children,
parties and to consider the entire material on record for granting relief.
We have to examine each case basing on its own facts and
circumstances on case to case basis. We have to decide whether the
custody is lawful or not. We have to decide each case on examination
of the facts of each case.
19. In view of the aforesaid discussion, this writ petition is disposed
of :-
i. Liberty is granted to the petitioner to file appropriate application in
terms of Section 7 of the Guardians and Wards Act, seeking to
declare him as a guardian, custody and visitation rights etc., of the
minor children before the competent juridictional Family Court and
it is for the said Court to consider the same and pass appropriate
orders in accordance with law.
ii. Liberty is also granted to the petitioner to raise all the contentions
and grounds raised in the present writ petition before the said 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.
________________________
JUSTICE K. LAKSHMAN
____________________
JUSTICE K. SUJANA
Date: 15.11.2023.
Vvr
