Telangana High Court

Smt.Gongalla Mani Karnica ... vs The State Of Telangana on 9 October, 2023

Bench: K.Lakshman, K. Sujana

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

                WRIT PETITION No.24017 OF 2023

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

      Heard Mr. Sri Nadella Venkateswara Rao, learned counsel for

the petitioner, learned Special Government Pleader appearing for

respondents 1 to 4 and Sri T.L.Nayan Kumar, learned counsel

appearing for 5th respondent.

2. This writ petition is filed to direct the respondents-Police to

produce the minor boy by name G.Devansh Reddy, before the Court

forthwith and to handover the child to the petitioner.

3. Marriage of the petitioner with 5th respondent was performed

on 23.03.2019. It is an arranged marriage. They blessed with a baby

boy i.e.'G.Devansh Reddy' on 29.05.2021 and he is aged about 2

years 03 months. Thereafter, disputes arose between them. The

petitioner and 5th respondent narrated the said disputes in writ

affidavit, counter affidavit and reply affidavit. Referring the said

disputes in detail are not required to decide the present writ petition of

Habeas Corpus. According to the petitioner, on 29.05.2023 5th

respondent forcefully entered into her house and took away her child.

She lodged a complaint with the 4th respondent who in turn, registered

a case in Cr.No.440 of 2023 for the offences punishable under

Sections 498-A 323 and 506 of IPC. Investigation is pending in the

said crime. The respondents-Police did not respond and whereabouts

of her child are not known till date. 5th respondent and his parents are

pressuring her to give divorce and not showing her child to her. While

the boy was with the 5th respondent, he developed health

complications. There are cigarette burnt marks on his cheeks.

Therefore, she is apprehending danger to her child in the hands of 5th

respondent and his family members. boy is aged only 02 years 03

months. It is tender age and therefore, he requires mother's care and

protection.

4. On the other hand, 5th respondent filed counter denying the

averments made by the petitioner against him and stated that the child

is in his legal custody. The petitioner left his company on her own

without any reason. He has issued a legal notice dated 08.11.2022

inviting her to matrimonial home along with the minor child, but she

did not respond. They have also entered into Memorandum of

Understanding (MOU) dated 21.08.2023 on certain terms and

conditions to take mutual consent divorce and re-marry on their own

accord. In compliance of the orders of this Court, he has handed over

the boy to the petitioner herein. Therefore, he seeks custody of the

minor boy on Saturday and Sunday from 9.00 A.M. to evening 8.00

P.M by modifying the orders dated 15.09.2023. Vide order dated

15.09.2023, this Court granted custody of the child to the petitioner by

permitting 5th respondent to spend with his son on every Saturday and

Sunday between 5.00P.M. to 7.00P.M.

5. The petitioner filed reply affidavit stating that immediately

after taking custody of the minor child by virtue of Court order, she

took the child who is suffering from mouth ulcers, to hospital and

provided treatment. 5th respondent and his parents ill-treated her son.

Parents of 5th respondent used to harass her for her salary and 5th

respondent used to suspect her on every issue. She was forced by the

5th respondent to leave matrimonial home. She is not interested to take

divorce from him. Even after leaving matrimonial home, 5th

respondent did not pay anything to support her and her child. She is

taking utmost care of the child and the child is hale and healthy with

her.

6. According to the petitioner, 5th respondent forcefully took

away the minor boy namely 'G.Devansh Reddy' and he is in illegal

custody of 5th respondent. Whereas, according to the 5th respondent,

she left matrimonial home on her own along with the child without

any reason. The child is in his legal custody of him. According to the

petitioner, the 5th respondent tortured the minor boy with cigarette

burnt injuries and made him to become unhealthy. In proof of the

same, she also filed photographs of the same. It is also specific

contention of the 5th respondent that they were entered into MOU for

taking divorce. According to the petitioner, she is not interested in

divorce.

7. Sri T.L.Nayan Kumar, learned counsel appearing for 5th

respondent referring to writ affidavit and reply affidavit filed by the

petitioner to the counter filed by the 5th respondent would submit that

in writ affidavit, the petitioner herein stated that 5th respondent took

minor child on 29.05.2023 and in reply affidavit she has stated that

same was on 25.05.2023. There is discrepancy. She has filed false

affidavit and she has approached this Court with unclean hands.

Referring to various judgment of the Apex Court, he would submit

that since the petitioner did not make any effort to see the boy and

therefore, she is not entitled for the custody of the boy.

8. Learned counsel for the petitioner would submit that due to

inadvertence, petitioner has mentioned different dates. It is neither

willful nor wanton. In the light of the same, in a matter like this, the

said inadvertence cannot be considered while deciding this writ

petition filed for custody of the minor child. We have to consider

welfare of the minor child which is paramount consideration. Both the

petitioner and 5th respondent are working.

9. According to the learned counsel for 4th respondent four

months back, the minor child was with the 5th respondent, she did not

make any effort to see the boy and she has filed the present writ

petition straightaway.

10. 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 child.

11. The aforesaid facts would reveal that there are serious

disputes between the petitioner and 5th respondent. There are strained

relations between them. The aforesaid crime was registered against 5th

respondent on the complaint lodged by the petitioner and the same is

pending. Therefore, welfare of the minor child is paramount

consideration.

12. It is relevant to note that considering the said aspects, age of

the boy and also the principle laid down by the Apex Court, this Court

vide order dated 15.09.2023 directed 5th respondent to give custody of

the minor boy to the petitioner herein and also permitted the 5th

respondent and his parents to spend with minor boy on every Saturday

and Sunday between 5.00PM. and 7.00 P.M. The petitioner was also

directed not create any problem during the said period. Respondent

No.5 shall hand over minor boy to the petitioner thereafter. Parties

shall follow the said days, timings and directions strictly, failing

which it will be viewed seriously. This Court also granted liberty to

respondent No.5 to file appropriate application under Section 7 of the

Guardians and Wards Act, 1890 and also appropriate Interlocutory

Applications seeking interim custody and visitation rights of the boy

before competent jurisdictional Family Court and it is for the said

Court to decide the same. However, the 5th respondent requested the

Court to give the custody of the boy to him on every Saturday and

Sunday between 9.00A.M. to 8.00 P.M. instead of visitation rights. 5th

respondent, did not file any application under Section 7 of the

Guardians and Wards Act seeking to appoint him as guardian, interim

custody of the minor child and visitation rights.

13. 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,

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.

14. 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

(2019) 7 SCC 311

(2011) 6 SCC 479

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.

15. 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

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.

16. 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

(2019) 7 SCC 42

AIR 1987 HP 34

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

are equally, even more important, essential and indispensable

considerations.

17. 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.

(2009) 1 SCC 42

18. In view of the above legal principles, admittedly, son of the

petitioner and 5th respondent was born on 29.05.2021. He is aged

about two years four months. It is tender age. He needs care and

protection of his mother. According to us, the minor boy should be

with the petitioner, his mother. However, 5th respondent being father,

is entitled to spend with the boy. The 5th respondent and his parents,

being paternal grandparents of the boy, are entitled to spend with the

minor boy on every Saturday and Sunday between 5.00 P.M. to 8.00

P.M. Liberty is also granted to the petitioner to file appropriate

application under Section 7 of the Guardians and Wards Act seeking

to appoint him as guardian, to give him interim custody of the minor