Telangana High Court

Kancharla Mani vs The State Of Telangana on 17 November, 2023

Bench: K.Lakshman, K. Sujana

             HON'BLE SRI JUSTICE K. LAKSHMAN
                                   AND
              HON'BLE SMT. JUSTICE K. SUJANA

                WRIT PETITION No.25840 OF 2023

ORDER: (Per Hon'ble Sri Justice K. Lakshman)

      Heard Mr. S. Suman, learned counsel for the petitioner and Mr.

Godugu     Mallesham,      learned    Assistant   Government   Pleader

representing learned Additional Advocate General appearing on

behalf of respondent Nos.1 and 2 and Mr. Khaja Aijazuddin, learned

counsel for respondent No.3.

2. This writ petition is filed to issue a writ of habeas corpus

declaring the detention of i) Kancharla Gayathri (13 Years); ii)

Kancherla Kesava Sai (12 Years), who are minors by respondent No.3

as illegal and for a consequential direction to respondent No.2 to

produce the said minors before this Court and set them at liberty and

hand over to the petitioner

3. In the affidavit filed in support of the writ petition, the

petitioner contended as follows:

i) This writ petition is filed by the petitioner, wife of

respondent No.3. While she was a minor aged 16 years, respondent

No.3 abducted her and married her in a temple forcing her parents to

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concede to his demand and to marry her as per Hindu rites and

customs. Out of their wedlock, they blessed with three children viz., i)

Kancharla Deva Harshini, aged 15 years; ii) Kancharla Gayathri, aged

13 years and iii) Kancharla Kesava Sai, aged 12 years and all of them

are school going children.

ii) Respondent No.3, the husband of the petitioner, started

behaving an arrogant manner and treated her cruelly after birth of

children. He is not taking proper care of her and their children. The

disputes arose between them cropped up and ultimately the petitioner

left the matrimonial house and started living independently from 2022.

iii) Despite giving reports to the police, the police are not

entertaining the same at the instance of respondent No.3 being an

employee in Police Department. Respondent No.3 beat the petitioner

severely causing injuries to her body and he used to abuse her

physically and mentally under the influence of alcohol.

iv) In the absence of the petitioner on 11.03.2022, her husband

booked a cab and with the help of cab driver, took all the three

children from her residence. However, their eldest daughter, Ms. K.

Deva Harshini is able to understand the evil designs of her husband,

escaped by getting down from the cab and returned to her. On coming

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to know the same, she approached respondent No.2 and requested to

produce her children, but they did not take any steps. On 12.03.2022,

when the petitioner went to her husband and requested him to give

back their children for which he became wild and beat her severally

and injured her body and face. Seeing the said incident, the

neighbours dialed 100, then police came, but did not register any case

against her husband. Thereafter, she was shifted to hospital.

iv) The aforesaid two children are minors and they should be

under her guardianship. Therefore, she filed the present writ petition

seeking the aforesaid relief.

4. Respondent No.3 - husband of the petitioner, filed counter

affidavit denying the averments made in the affidavit. He further

contended as under:

i) The petitioner is guilty of suppressing of material;

ii) The petitioner is involved in immoral activities with Mr.

Vaddi Balaji and she got missing from the matrimonial

home which compelled him to file police complaint on

08.03.2022 at Rajendranagar Police Station vide FIR

No.452 of 2022 as woman missing and on 12.03.2022 the

petitioner herself came to the house;

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iii) He filed a petition before the Family Court at Ranga

Reddy District seeking dissolution of marriage with the

petitioner on the ground of cruelty and other grounds vide

O.P. No.904 of 2021 and the same is pending;

iv) The petitioner bore grudge against him and filed a false

case under Section - 498A of IPC, wherein the police on

completion of investigation laid charge sheet and the

same was taken on file as CC No.1618 of 2022, which is

also pending before the Rajendranagar Court;

v) The allegations that he abducted the petitioner and

married the petitioner; that he harassed her physically and

mentally; that he used to beat the petitioner severely and

that he being police constable influenced the police in not

registering a case against him on the complaint lodged by

the petitioner etc., are false and baseless.

vi) Since the petitioner was involved in immoral activities

with Mr. Vaddi Balaji and got married him who is also

working as Police Constable with Andhra Pradesh Police,

custody of the aforesaid two children cannot be given to

the petitioner;

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vii) Respondent No.3 is working in the Discipline Force of

Telangana Police, he is very much taking care of his two

children and they are happily studying; and

viii) With the aforesaid submissions, he sought to dismiss the

writ petition.

5. The aforesaid facts would reveal that the marriage of the

petitioner with respondent No.5 was performed on 20.07.2005 and

they blessed with three children. Elder daughter is aged 15 years and

she is with the petitioner herein - mother. Younger daughter and son

aged about 13 years and 12 years respectively are with respondent

No.3 - father. There are matrimonial disputes between the petitioner

and respondent No.3. Respondent No.3 has already filed a petition

vide O.P.No.904 of 2021 against the petitioner seeking dissolution of

marriage on the ground of cruelty. Whereas, the petitioner herein has

filed a complaint against respondent No.3 and the same was registered

in Crime No.493 of 2022 of Rajendranagar Police Station, for the

offence punishable under Section 498-A of IPC. After completion of

investigation, the police laid charge sheet against respondent No.3 for

the offences punishable under Sections - 498A and 323 of IPC and the

same was taken on file as C.C. No.1618 of 2022, which is pending.

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Thus, there are strained relations between the petitioner and

respondent No.3. Respondent No.3 herein has made serious allegation

of adulterous life by the petitioner. He has also mentioned the details

of the same. The said OP and the CC are pending. Respondent No.3

has also lodged a complaint with Rajendranagar Police Station, who in

turn, registered a case in Crime No.452 of 2022 for 'woman missing'

and thereafter it was closed. According to respondent No.3, the

petitioner was involved in immoral activities with Mr. Vaddi Balaji

during subsistence of first marriage with respondent No.3. The said

Vaddi Balaji is also a police constable. In the light of the same, we

have interacted with the petitioner, respondent No.3 and their children

separately.

6. The proceedings in writ of habeas corpus are summary in

nature and we have to decide the same basing on the affidavits filed

by the parties. The Hon'ble Supreme Court and this Court time and

again categorically held that while deciding custody petitions, welfare

of the minor children is paramount consideration.

7. As discussed above, the elder daughter of the petitioner and

respondent No.3 is 15 years and she is studying 10th class. Younger

daughter is in 9th class and she is 13 years old and son is 12 years and

KL,J & SKS,J W.P. No.25840 of 2023

he is studying 7th class. According to the petitioner, in her absence on

11.03.2022, respondent No.3 took all the three minor children in a

Cab. However, the elder daughter came back to her. She has already

initiated steps by filing an application under the Guardian and Wards

Act before the Family Court, Ranga Reddy District at L.B. Nagar

seeking custody of the second daughter and visitation rights of son.

According to learned counsel for the petitioner, the said petition was

returned for want of jurisdiction. Thus, she has already filed the

aforesaid petition seeking the custody of second daughter and

visitation rights of the son. She has lodged a complaint with the

police department on 13.03.2022. Thus, even according to the

petitioner, the minor children i.e., younger daughter and son are with

respondent No.3 from 11.03.2022.

8. In normal circumstances, keeping in view the welfare of the

minor children, we will grant custody of minor children to the mother,

more particularly, a girl aged 13 years old requires mother's care and

protection. In the present case, the facts are altogether different. We

have interacted with the three children separately. We have also

interacted with the petitioner and respondent No.3. During

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interaction, the petitioner informed us that she is also doing a real-

estate business.

9. 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 v. 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,

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.

10. In Ruchi Majoo v. 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. High Court may, therefore, invoke its extra

. (2019) 7 SCC 311

. (2011) 6 SCC 479

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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.

11. In Tejaswini Gaud v. 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

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.

12. 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

. (2019) 7 SCC 42

. AIR 1987 HP 34

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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 are equally, even more important, essential and indispensable

considerations.

13. In Gaurav Nagpal v. Sumedha Nagpal 5, 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."

14. In the light of the aforesaid discussion, according to us,

there is no detention, much less illegal detention of the aforesaid two

minor children of the petitioner and respondent No.3. At the cost of

repetition, as stated above, the minor children are with respondent

. (2009) 1 SCC 42

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No.3 from 11.03.2022. She has filed a petition under Section - 7 (b)

of the Guardian and Wards Act seeking custody of the second

daughter and visitation rights of third child on 29.07.2022 on the file

of Principal District Judge, Family Court, Ranga Reddy District at

L.B. Nagar. According to learned counsel for the petitioner, it was

returned on the point of jurisdiction. Therefore, either she has to