Kathuroju Anusha vs State Of Telangana
2023 Latest Caselaw 2525 Tel

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

                WRIT PETITION No.23230 OF 2023

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

      Heard Mr. V.Raghunath, learned senior counsel representing

Ms.Tekuru Swetcha, learned counsel for the petitioner, learned

Special Government Pleader representing learned Addl. Advocate

General and Sri Srinivas Polavarapu, learned counsel appearing for 9th

respondent.

      2. This writ petition is filed to declare action of 9th respondent

in unlawfully detaining the minor girl by name 'Ananya Kathuroju'

daughter of the petitioner, aged 7 years and actions of respondents 2 to

8 in not tracing whereabouts of the minor girl as illegal and

consequently direct them to produce the minor girl before this Court.

Facts

of the case:-

3. Marriage of the petitioner with 9th respondent was performed

on 18.12.2014. It is an arranged marriage. They blessed with a baby

girl 'Ananya Kathuroju' on 19.10.2015 and baby boy 'K.Pranav' on

21.06.2021. Thereafter, disputes arose between them. The petitioner

and 9th 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. However, the

petitioner had lodged a complaint against 9th respondent and his

family members with P.S. Malkajgiri, Rachakonda Commissionerate,

who in turn, registered a case in Cr.No.241 of 2023 for the offences

punishable under Sections 498-A and 406 of IPC and Sections 3 and 4

of Dowry Prohibition Act. Investigation is pending in the said crime.

4. It is also relevant to note that 9th respondent filed a petition

vide FCOP No.375 of 2023 before the Family Court, Medchal

Malkajgiri District, against the petitioner herein for dissolution of

marriage. The same is pending.

5. According to the petitioner, 9th respondent abducted the

minor girl namely 'Ananya Kathuroju' and she is in illegal custody of

9th respondent. Whereas, according to the 9th respondent, a panchayat

was held before the elders, wherein maternal uncle of the petitioner

and her relatives were also participated in the said negotiations on

01.04.2022. The elders advised 9th respondent to hand over his son

who was only 9 months old to the petitioner and keep the minor girl

with him. Minor girl was is not interested to go with her mother. Even

now, she is not interested to go with the mother. It is also specific

contention of the 9th respondent that the petitioner and 9th respondent

attended counseling from 30.04.2022 to 04.06.2022. According to the

petitioner, 9th respondent also made serious allegations against the

petitioner herein and her father. On 05.07.2023 the petitioner along

with her father and other relatives trespassed the house of 9th

respondent and threatened to kill his mother and sister-in-law. In proof

of the same, he has filed photographs.

6. Whereas, according to the petitioner, 9th respondent used to

leave for work at 8.30 A.M. and return only at 7.P.M. Nobody is there

to take care of the minor child and he is trying to give custody of the

minor child to his brother by name K.Sravan Kumar as they are

issueless. Thus, according to the petitioner, 9th respondent abducted

the minor child illegally.

7. The aforesaid facts would reveal that there are serious

disputes between the petitioner and 9th respondent. 9th respondent is a

private employee. There are strained relations between them. The

aforesaid crime registered against 9th respondent on the complaint

lodged by the petitioner and FCOP filed by 9th respondent are pending

between them.

8. 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.

Findings of the Court:-

9. 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 child is in illegal custody of

9th respondent as alleged by the petitioner. Welfare of the child is

paramount consideration while deciding this writ petition.

10. 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,

(2019) 7 SCC 311

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.

11. 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.

12. 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

(2011) 6 SCC 479

(2019) 7 SCC 42

paramount consideration for the court ought to be child interest and

welfare of the child.

13. 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

are equally, even more important, essential and indispensable

considerations.

AIR 1987 HP 34

14. 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.

15. 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.

(2009) 1 SCC 42

16. 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 on case to case basis.

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

17. In the light of the aforesaid principles laid down by the

Apex Court, coming to the case on hand, as discussed supra, there are

serious disputes between the petitioner and 9th respondent. The

aforesaid crime and FCOP are pending. Admittedly, girl child

'Ananya Kathuroju' is aged 7 years. It is a tender age. She is a female

child. We have to consider the welfare of the child. It is a tender age.

She needs care and protection of the mother. However, boy is also

with the petitioner. Elders cannot decide that the minor boy should be

with the mother and girl child should be with the father. In the custody

matters, welfare of the minor child is the paramount consideration. 9th

respondent is a private employee. There is no mention in the entire

counter as to who is taking care of minor child if custody is given to

the 9th respondent, whereas, the petitioner herein, being Homemaker,

is taking care of the girl child. Therefore, we are of the considered

view that it is just and necessary to give custody of the minor child to

her mother, the petitioner.

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

disposed of holding that :-

i. 9th respondent is directed to hand over the minor child by name

'Ananya Kathuroju, aged 7 years, to the petitioner herein within

one week from today.

ii. Liberty is granted to the 9th respondent to file appropriate

application in terms of Section 24 of the Guardians and Wards

Act, seeking to declare him as a guardian, appropriate

application seeking custody and visitation rights etc., of the

minor child before the competent juridictional Family Court

which will have the benefit of interacting with the parties and

minor child and consider the entire material on record, other

relevant factors on the subject matter.

iii. Liberty is also granted to the parties to raise all the contentions

and grounds raised in the present writ petition before the Court

below 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:20.09.2023.

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