Sri.Arraguntaraghavender , ... vs The State Of Telangana
2023 Latest Caselaw 2047 Tel

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

                WRIT PETITION No.19218 OF 2023

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

      Heard Mr. M.Venkata Rama Rao, learned counsel for the

petitioner, learned Special Government Pleader appearing for

respondents 1 to 4 and Sri K.Venumadhav, learned counsel appearing

for respondents 6 to 9.

2. This writ petition is filed to direct 4th respondent to produce

minor child by name Baby Arragunta Eshanvi, aged about 3½ years,

daughter of 1st petitioner before the Court.

The undisputed facts of the case are as follows:-

3. Marriage of the 1st petitioner with the daughter of

respondents 6 and 7 was performed on 24.02.2018 in Hyderabad. It is

a love - cum - arranged marriage. They were blessed with a baby girl

by name 'Arragunta Eshanvi' on 11.12.2019. Thereafter, disputes

arose between the 1st petitioner and the daughter of respondents 6 and

7 i.e. Smt. Badugu Sarita (hereinafter referred as deceased). A quarrel

took place between the deceased and respondents 6 to 9 with regard to

payment of chit amount of Rs.5 Lakhs. Ultimately, on 28.03.2023, the

deceased committed suicide due to hard discussion with her family

members. On the complaint lodged by the brother of the deceased

dated 29.03.2023, the Police, Narsingi Police Station, have registered

a case in Cr.No.351 of 2023 against the petitioners for the offences

punishable under Sections 498-A and 306 of IPC. Ultimately the

petitioner No.1 was released on bail.

4. It is specific contention of the petitioners that petitioner No.1

performed final rituals of the deceased at his parents house situated at

Changicharla Village, Medipally Mandal, Medchal-Malkajgiri

District. On 14.06.2023, respondents 6, 8 and 9 came to the house of

the petitioners without informing them or their family members and

abducted the minor child. On enquiry of the 1st petitioner, they said

that they would return the minor child within ten days. Thereafter,

they have not returned.

5. On 27.06.2023 and 05.07.2023, 2nd petitioner lodged a

complaint with 4th respondent against respondents 6 to 9. The Police

have not taken any action.

6. According to the 1st petitioner, on 19.06.2023 he took

admission of the minor child into PP1 Class in Meridian school at

Changicherla. Due to illegal custody of the minor child by

respondents 6 to 9, the child is missing love and affection of the

petitioners and their family members. 6th respondent filed GWOP

No.40 of 2023 on the file of Family Court, Ranga Reddy District at

L.B.Nagar, seeking guardianship and permanent custody of the minor

child, to declare her as a guardian and permanent custody of the minor

child. Therefore, according to the petitioners, minor child is in illegal

custody of respondents 6 to 9. Therefore, he filed writ present writ

petition for production of the minor child.

7. It is the specific contention of the respondents 6 and 7 that

their daughter committed suicide due to harassment of both the

petitioners. Therefore, they have lodged a complaint against the

petitioners and the said case is pending. 1st petitioner developed bad

habits and is also maintaining extra marital relationship. He has also

demanded huge amount of dowry. He took all the salary amount of

their daughter and harassed her both physically and mentally.

According to them, 1st petitioner killed their daughter in order to get

second marriage and for more dowry. He filed the present writ petition

only to escape from the punishment in the aforesaid crime. There is no

illegal detention of the minor child by them. They have taken the

minor girl with the permission of the petitioners, only but not forcibly

as alleged. In view of the extra-marital relationship being maintained

by the 1st respondent, he will not be in a position to take care of

welfare of the minor child. They have joined the minor child in a

reputed school. 6th respondent has also filed GWOP No.40 of 2023 to

declare her as a guardian and for permanent custody of the minor

child. The petitioners have to pursue the said petition.

8. It is contended by 4th respondent that on 27.06.2023, he has

received a complaint from the petitioner stating that respondents 6 and

7 took away the child. They have made G.D. entry of the said

complaint and during enquiry it revealed about the death of the

deceased and registration of the aforesaid crime. However, 6th

respondent has already filed GWOP No.40 of 2023 to declare her as

guardian and permanent custody of the minor child.

9. In view of the same, respondents 6 and 7 informed 4th

respondent that they will not give custody of the minor child to the 1st

petitioner and he is at liberty to pursue the aforesaid GWOP.

10. The aforesaid facts would reveal that the marriage of 1st

petitioner with the deceased was performed on 24.02.2018. It is a love

- cum - arranged marriage. Before marriage, both the spouses were

working as software employees in their respective companies. They

blessed with a baby girl by name 'Arragunta Eshanvi' dated

11.12.2019. At present she is 3 ½ years. Thereafter, disputes arose

between the petitioner and the deceased. According to the 1st

petitioner, the deceased committed suicide. Whereas, according to the

respondents 6 and 7, the 1st petitioner killed her by harassing both

physically and mentally. However, on the complaint lodged by brother

of the deceased, Police, Narsingi Police Station have registered a case

in Cr.No.351 of 2023 for the offences punishable under Sections 498-A

and 306 of IPC. 1st petitioner was sent to judicial custody and he was

released on bail.

11. According to the petitioners, respondents 6, 8 and 9

abducted the minor child illegally and therefore, minor child is in

illegal custody of the respondents 6 to 9. Whereas, according to

respondents 6 and 7, 1st petitioner is maintaining illicit relationship

with another woman, he has harassed their daughter both physically

and mentally. According to them, 1st petitioner killed their daughter.

The minor child is aged about 3½ years and they have joined her in a

reputed school.

12. In the light of the aforesaid allegation, the petitioners herein

may not take care of the welfare of the minor child. Therefore, being

maternal grandparents, they are intending to take care of the minor

child and also her welfare. She is not in their illegal custody and they

never abducted the minor child as alleged by the petitioners.

13. Aforesaid facts would reveal that there is strained

relationship between the petitioner and respondents 6 and 7.

Investigation in the aforesaid crime is pending. Admittedly, the minor

child is aged about 3½ years. 6th respondent has already filed GWOP

No.40 of 2023 on the file of Family Court, Ranga Reddy District at

L.B.Nagar, against 1st petitioner seeking to declare her as guardian to

the minor child and permanent custody of the minor child to her. The

said petition is pending.

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

Habeas Corpus are summary in nature. In the present writ petition, the

only issue which we have to decide is as to whether the minor child is

in illegal custody of respondents 6 to 9 as alleged by the petitioners.

15. Apex Court 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.

16. 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 where in the circumstances of a

particular case ordinary remedy provided by the law is either

invaluable or is ineffective, otherwise a writ will not be issued in a

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 pronouncement

issue in question in Supreme Court and High Courts, the 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. 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 and case to case basis.

Finally High Court has to decide whether the custody is lawful or not.

18. In the light of the aforesaid legal position, in normal

circumstances, 1st petitioner, being the father is entitled for the

custody of the minor child. 1st petitioner is the father and 2nd petitioner

is paternal grandmother of minor child. Respondents 6 and 7 are

maternal grandparents of the minor child. In normal circumstances,

we will give custody of the minor child to the petitioners. Whereas, in

the present case, there are serious allegations against 1st petitioner.

According to respondents 6 and 7, 1st petitioner is maintaining illicit

relationship with another woman and harassed their daughter both

physically and mentally. He killed their daughter. According to the

petitioners, the deceased committed suicide. However, the aforesaid

crime was registered against the 1st petitioner for the offences

punishable under Sections 498-A and 306 of IPC

19. As discussed supra, 6th respondent has filed the aforesaid

GWOP seeking to declare her as guardian of the minor child and

permanent custody of the minor child to her. The same is pending on

the file of Family Court, Ranga Reddy District at L.B.Nagar. Family

Court will have benefit and advantage of interacting with the

petitioners, respondents 6 and 7 and minor child while deciding the

said GWOP. The petitioners can as well file a petition seeking

visitation rights/interim custody of the minor child during pendency of

the said GWOP in the said GWOP. The said Court will consider the

same and pass appropriate orders in accordance with law.

20. In the light of the aforesaid discussion, there is no abduction

of the minor child by respondents 6 and 7 and according to us, the

minor child is not in illegal custody of the respondents 6 and 7 as

alleged by the petitioners. In fact, they are maternal grandparents of

the minor child. She is with the grandparents.

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

disposed of granting liberty to the petitioners and respondents 6 and 7

to pursue the proceedings in G.W.O.P.No. 40 of 2023 pending on the

file of Family Court, Ranga Reddy District at L.B.Nagar, filed by 6th

respondent. Liberty is also granted to the petitioners to file appropriate

application seeking interim custody/visitation rights of the minor child

and it is for the said Court to decide the same on merits by following

the procedure laid down under law.

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

________________________ JUSTICE K. LAKSHMAN

____________________ JUSTICE K. SUJANA

Date:06.09.2023.

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