Telangana High Court
Smt. Sujatha Jadav Sujatha Sharma vs The State Of Telangana on 23 November, 2023
Author: K.Lakshman
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
&
THE HONOURABLE SMT JUSTICE K.SUJANA
WRIT PETITION No.29274 OF 2023
O R D E R:
(Per the Honourable Sri Justice K.Lakshman)
This is a Writ of Habeas Corpus filed by the petitioner
seeking to produce her minor son Master Yash Sharma,
aged about 5 years from the illegal custody of respondent
No.6.
02. Heard Sri M.Naga Raghu, learned counsel
representing Sri M.V.S.Sai Sharath, learned counsel for the
petitioner, Sri Godugu Mallesham, learned Assistant
Government Pleader representing learned Advocate General
and Ms.Farhath Ather Sultana, learned counsel for
respondent No.6 and perused the record.
03. The brief facts of the case are that:
The petitioner is the wife of respondent No.6. Their
marriage was performed on 03.07.2017 as per Hindu rites
and customs. It is an arranged marriage. They lived
happily for some time. According to the petitioner,
respondent No.6 has informed her that he is suffering with
'HIV/AIDS' and he cannot continue his martial life with
her. Respondent No.6 is taking treatment for the said
disease with respondent No.5. The said fact was shocking
to the petitioner and she informed the same to her family
members and also to the family members of respondent
No.6 to take steps for separation from respondent No.6 in
accordance with law. With the intervention of the family
members of both parties, respondent No.6 and petitioner
entered into Memorandum of Understanding dated
31.10.2018 in the presence of family members of both
parties and the said marriage was declared as break down.
They have decided to obtain decree of divorce with mutual
consent.
3.1. It is contended by the learned counsel for the
petitioner that after entering into the said Memorandum of
Understanding, the petitioner and respondent No.6 have
lived separately. They have not filed any petition before
any Court seeking dissolution of marriage. Elders and
well-wishers of their family members made efforts for
reunion of the petitioner and respondent No.6. They have
advised the petitioner and respondent No.6 to go for
adoption of a child belonging to the poor community.
Therefore, on the advise of elders and well-wishers they
were reunited. They have made enquiries with regard to
adoption of a child. The said efforts were fruitful. They
have adopted a 7 days newly born child of Smt.R.Rajlaxmi.
They have also entered into a Deed of Adoption dated
30.05.2019. They have joined the boy in Hyderabad Scout
International School. The petitioner and respondent No.6
stayed under one roof along with child. However, petitioner
used to take care of the child. She was not allowing the
child to contact respondent No.6 who is suffering with
'AIDS/HIV'. Several disputes arose with respondent No.6
on the said aspect. Respondent No.6 tried to move with the
boy which was resisted by petitioner. Thus the
relationship between the petitioner and respondent No.6
were strained.
3.2. It is further contended by the learned counsel
for the petitioner that in the month of February, 2023
respondent No.6 thrown away the petitioner from his
marital house by keeping the custody of the minor child.
The petitioner and her family members made several efforts
to get the custody of the minor boy but in vain. Therefore,
she filed the present Writ Petition.
04. Whereas respondent No.6 filed counter-affidavit
contending that his marriage with the petitioner was
second marriage. The petitioner did not obtain divorce
legally from her first husband. The said fact was not
informed to respondent No.6. Even to him, it is second
marriage but he has obtained decree of divorce from his
first wife. Even after the marriage, they lived together for a
period of one year for the purpose of children. When he
went to medical check-up, he came to know that he has
'HIV/AIDS' disease and taking treatment with respondent
No.5. On coming to know about the said fact, the
petitioner decided to get separate from respondent No.6 by
signing Memorandum of Understanding dated 31.10.2018.
Even after signing Memorandum of Understanding dated
31.10.2018, they have not obtained decree of divorce.
However, he requested petitioner to permit him to stay with
her. The same was accepted. The petitioner and
respondent No.6 were staying in the upstairs of the house
owned by the parents of respondent No.6. The petitioner
did not cooperate with him and started harassing him on
one ground or the other. However, they have decided to
adopt a child. The said fact was informed to the parents of
respondent No.6 who contacted Smt.R.Rajlaxmi of their
village, who agreed to give her child in adoption. The
husband of Smt.R.Rajlaxmi died when she was pregnant.
Therefore, the parents of respondent No.6 agreed to bear
the hospital expenditure for delivery of Smt.R.Rajlaxmi and
other aspects. Smt.R.Rajlaxmi was having two children,
therefore, the father of respondent No.6 taken care of day-
to-day necessities of the said Smt.R.Rajlaxmi. Deed of
Adoption dated 30.05.2019 was entered into between
petitioner and respondent No.6 and the said
Smt.R.Rajlaxmi.
4.1. It is further contended by respondent No.6 that
he had one brother who is married but he has no issues.
Though on the paper, as a formality, the child was adopted
in the name of the petitioner and respondent No.6, the
petitioner never cared to look after the child properly. The
child was brought up in a complete sense by respondent
No.6's brother and his wife. The petitioner was leading a
life as visitor with respondent No.6. She used to come and
live with respondent No.6 for sometime. The petitioner
used to take away hard earned income of respondent No.6
who is an auto driver. Even she demanded to pay more
amount. On one day, the petitioner got disappeared with
the child and after great efforts, respondent No.6 came to
know that petitioner took away the child and she
demanded Rs.50,000/- for sending back the child and the
father of respondent No.6 paid the said amount through
online. She used to openly say that she is not ayaa for
taking care of the unwanted child. She used to take away
the child and demand money. Respondent No.6 and his
brother paid Rs.50,000/- on 02.11.2022 by way of transfer
to return the child. She left the company of respondent
No.6 by taking amount in the month of November, 2022
and deserted respondent No.6 and minor child and she
came out with present petition with all false and frivolous
allegations.
05. The petitioner filed rejoinder denying all the
allegations. According to her, respondent No.6 made said
allegations only to succeed in the present Writ Petition.
The minor child is in illegal custody of respondent No.6.
06. Sri M.Naga Raghu, learned counsel appearing
on behalf of the petitioner would contend that the boy is
aged about 5 years and he should be in the safe custody of
the petitioner. The minor boy needs protection.
Respondent No.6 is suffering from HIV/AIDS disease.
Therefore, keeping the minor child with respondent No.6 is
unsafe. While deciding the custody petitions, this Court
has to consider welfare of minor child as paramount
consideration.
07. He relied upon following decisions in:
i. Yashita Sahu v. State of Rajasthan 1
ii. Rajeshwari Chandrasekar Ganesh v. State
of Tamil Nadu and others 2
(2020) 3 SCC 67
08. Whereas learned counsel for respondent No.6
would submit that the petitioner never took care of minor
boy. Therefore, giving custody of minor child to the
petitioner is not proper in the interest of minor boy.
Respondent No.6 with the help of his brother and his wife
looking after welfare and protection of the minor child. The
minor boy is pursuing his studies and they have joined him
in reputed school i.e., Hyderabad Scout International
School. He is comfortable with respondent No.6 and his
family members. Therefore, only to demand money, she
filed the present Writ Petition.
09. Aforesaid facts would reveal that the marriage
of respondent No.6 with petitioner was performed on
03.07.2017. It is second marriage to both of them. In the
counter-affidavit, respondent No.6 has specifically
contended that it is second marriage to both of them.
However, petitioner did not obtain decree of divorce legally
from her first husband. The said aspect was not informed
by petitioner to respondent No.6 at the time of their
(2022) SCC Online 885
marriage. Respondent No.6 obtained decree of divorce
from his first wife. Thus, the petitioner had suppressed
about said fact while performing the marriage. However,
they have led marital life for one year for the purpose of
children. It was not happened. After undergoing medical
check-up, respondent No.6 came to know that he is
HIV/AIDS positive. On coming to know the said fact, the
petitioner decided to get separated from respondent No.6.
They have entered into Memorandum of Understanding
dated 31.10.2018 in the presence of family members of
both parties.
10. It is mentioned in the said MOU that since last
six months disputes arose between them, the disputes are
not yet settled inspite of elders and well-wishers mediation.
They have decided to live separately and break down their
marriage by way of obtaining decree of divorce. The said
MOU was signed by them in the presence of three
witnesses. Despite agreeing to live separately and to obtain
divorce from competent Court of law, they have not
obtained divorce. According to respondent No.6, petitioner
requested respondent No.6 and his family members that
she will stay with respondent No.6 for which they have
permitted.
11. It is not in dispute that the petitioner and
respondent No.6 have decided to adopt a child in view of
health condition of respondent No.6. Accordingly, they
adopted the child namely Master Yash Sharma at the age
of 7 days. He is a new born child. Deed of Adoption dated
30.05.2019 was entered. The said deed of adoption was
signed by the petitioner and respondent No.6 in the
presence of witnesses. It is a notarized deed of adoption.
12. It is the specific contention of respondent No.6
that on deciding to take adoption, he has informed the
same to his parents. The parents of respondent No.6
contacted the said Smt.R.Rajlaxmi of their village and she
also agreed. The said Rajlaxmi's lost her husband during
her pregnancy. She has two children by that time.
Therefore she agreed for the adoption. After giving birth to
a male child, she has entered into the said Deed of
Adoption dated 30.05.2019.
13. It is further specific contention of respondent
No.6 that his parents met entire expenditure of the hospital
and day-to-day necessities of Smt.R.Rajlaxmi and her two
children. The petitioner never used to care the boy and he
is taking care of the boy with the help of his brother and
his wife and parents. He is an auto driver. The petitioner
used to come to his house as a visitor. The petitioner left
the house of respondent No.6 along with child without
informing him and with great difficulty they have traced
her out. Thereafter to return the boy, she demanded
Rs.50,000/- on 02.11.2022 and the father of respondent
No.6 paid the said amount through online. There is
specific assertion with regard to the same by respondent
No.6 in paragraph No.6 of the counter-affidavit. Though
the petitioner filed rejoinder, the said fact was not rebutted
specifically. However, she has stated that respondent No.6
taken some money from her mother and retuned the same.
She has also stated about conducting of mediation and the
same was failed. Thus, according to respondent No.6, the
petitioner left his company leaving child on 02.11.2022.
Whereas, according to petitioner, respondent No.6 necked
her out of the house in the month of February, 2023.
14. Aforesaid facts would reveal that according to
the petitioner, she is staying away from child from
February, 2023. Except stating that she has made efforts
to get custody of the minor child, she has not specifically
mentioned the details of the same. Whereas according to
respondent No.6, the petitioner left his company along with
the child on 02.11.2022 and demanded Rs.50,000/- and
the said amount was paid by father of respondent No.6.
Thus, according to the petitioner, the minor boy is in illegal
custody of respondent No.6. Whereas, according to
respondent No.6 the minor boy is in his legal custody.
15. This is a Writ of Habeas Corpus. The
proceedings in writ of Habeas Corpus are summary in
nature which we have to decide basing on affidavits. While
deciding this Writ Petition, we have to consider as to
whether the minor child is in illegal custody of respondent
No.6 as alleged by the petitioner, while deciding custody of
minor child welfare is paramount consideration. The said
principle was laid down by the Honourable Apex Court in
the aforesaid Judgments relied on by Sri M.Naga Raghu,
learned counsel appearing on behalf of the petitioner.
16. The Habeas Corpus proceedings are not to
justify or examine the legality of the custody. The
proceedings in a Writ of Habeas Corpus 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.
17. As held by the Honourable Apex Court, the High
Court may invoke extraordinary 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,
the High Court has to decide whether the custody is lawful
or not.
18. As discussed supra, while deciding a petition for
custody of the minor child, welfare of the minor child is
paramount consideration. The Honourable Apex Court in
Lahari Sakhamuri Vs. Sobhan Kodali 3 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:
i. Maturity and judgment,
ii. Mental stability,
iii. Ability to provide access to schools,
iv. Moral character,
(2019) 7 SCC 311
v. Ability to provide continuing involvement in
the community,
vi. 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.
19. In Ruchi Majoo Vs. Sanjeev Majoo 4, the
Honourable 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 extraordinary 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.
20. In Tejaswini Gaud vs Shekhar Jagdish Prasad
Tewari 5, the Honourable Apex Court held that the Court
while deciding the child custody cases is not bound by the
(2011) 6 SCC 479
(2019) 7 SCC 42
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.
21. In Kamla Devi v. State of H.P. 6, 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 a 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,
AIR 1987 HP 34
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.
22. In Gaurav Nagpal vs Sumedha Nagpal 7, 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.
23. In view of the above legal position, coming to
the case on hand, as discussed supra, the minor boy is
aged about 5 years. It is tender age. He requires proper
care and protection. He needs congenial atmosphere. He
is presently with respondent No.6. Respondent No.6 joined
the minor boy in Hyderabad Scout International School. It
is also undisputed fact that respondent No.6 is suffering
(2009) 1 SCC 42
with HIV/AIDS disease. He has brother, brother's wife and
his parents. His brother is also issueless. Therefore, he is
taking care of minor boy with the help of his family
members. In normal circumstances, we will give custody of
a minor boy, aged about 5 years to the mother. But as
discussed supra, the petitioner herein is not natural
mother of the minor boy. Petitioner and respondent No.6
have adopted the minor boy by way of Deed of Adoption
dated 30.05.2019.
24. As discussed supra, both petitioner and
respondent No.6 agreed to obtain decree of divorce. They
have not filed any application seeking divorce. They have
adopted minor boy. It is a second marriage for both of
them. It is specific allegation that the petitioner did not
obtain divorce legally from his first husband, from the
competent Court of Law. The said fact was suppressed by
her at the time of marriage with respondent No.6. Though
there is specific allegation, the petitioner herein did not
deny the said aspect specifically in the said reply affidavit.
25. Aforesaid facts would reveal that there are
strained relations between petitioner and respondent No.6.
Respondent No.6 is taking care of the minor boy's welfare
with the help of his brother and his wife and parents.
Minor boy is comfortable with them. According to the
petitioner, the minor boy is with respondent No.6, who is
suffering with HIV/AIDS disease. In the month of
February, 2023, respondent No.6 necked her out of the
house, she has not mentioned a specific date. She did not
made any effort to take custody of the minor child.
However, it is the specific contention of respondent No.6
that the petitioner left the company of respondent No.6
along with minor boy on 02.11.2022 by taking an amount
of Rs.50,000/- to return the minor boy. Thus, according to
respondent No.6, the boy is in his company and petitioner
left him and the boy on 02.11.2022 itself.
26. As stated supra, there are special statutes
governing the rights of the guardians, but the welfare of the
minor child 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.
27. In the light of the aforesaid facts and
circumstances of the case, we are of the considered view
that the minor boy should be with respondent No.6 for the
present. However, if the petitioner wants guardianship and
visitation rights, she has to approach competent
jurisdictional Family Court by way of filing appropriate
application. 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 learned Family Court
will have the benefit of interacting with the child, 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.
28. In the light of the aforesaid discussion, the boy
i.e., Master Yash Sharma, aged 5 years is not in illegal
custody of respondent No.6, adopted father. Therefore, this
Writ Petition is liable to be dismissed.
29. Accordingly, this Writ Petition is dismissed.
However, the petitioner is at liberty to file appropriate
application seeking guardianship and visitation rights of
the minor child by approaching competent jurisdictional
Family Court, if she so desires. Liberty is also granted to
the petitioner to raise all the contentions and grounds
raised in the present Writ Petition before the learned
Family Court and it is for the said Court to consider the
same and pass appropriate orders, in accordance with law.
There shall be no order as to costs.
Pending miscellaneous applications, if any, shall
stand closed.
__________________
K.LAKSHMAN, J
_____________
K.SUJANA, J
Date: 23-NOV-2023
KHRM
