Telangana High Court

Smt.Burra Anoosha vs The State Of Telangana on 20 February, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

              HON'BLE SRI JUSTICE K. LAKSHMAN
                                   AND
            HON'BLE SMT. JUSTICE P.SREE SUDHA

                  WRIT PETITION No.2400 of 2024

ORDER:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. K. Pradeep Reddy, learned counsel for the petitioner,

Sri Godugu Mallesham, learned Asst. Govt.Pleader for respondents 1

to 3 and Sri T. Surya Satish, learned counsel appearing for 4th

respondent.

2. This writ petition is filed seeking a direction to the

respondents 2 and 3 to produce minor child by name Burra Srikruthi,

aged about 8 years, daughter of the petitioner, from the unlawful

custody of 4th respondent, her natural father, before the Court and to

hand over the child to the petitioner.

Facts:-

i. The marriage of the petitioner with the respondent was

performed on 22.08.2013 as per the Hindu rites and customs.

ii. It is an arranged marriage.

iii. They blessed with a daughter namely 'Burra Srikruthi' on

29.01.2015 and a son namely 'Burra Jayisnu Charan' on

10.07.2022.

iv. Right from the date of marriage, 4th respondent and his family

members started harassing her demanding with a demand of

additional dowry.

v. On knowing that she gave birth to female child, 4th respondent

and his family members came to hospital after 5 days of the

birth of her daughter and abused her for not giving birth to male

child.

vi. Second time, she gave birth to a male child namely 'Burra

Jayisnu Charan' on 10.07.2022, even then, there was no change

in their attitude.

vii. In the month of April 2023, 4th respondent dropped her at her

parents' house along with minor son and took away her minor

daughter 'Burra Srikruthi' along with him threatening to see her

end if any steps are taken against him. However, due to the

intervention of the elders, he has handed over her minor

daughter back to her custody.

viii. 4th respondent used to state that he is having illicit affair with

his younger brother's wife namely Padma and her children

belongs to him. He also used to say that he is not having any

feeling on her.

ix. On 09.11.2019, 4th respondent and the said Padma threatened to

kill her and her minor daughter by drowning them in water if

she did not accept for customary divorce. He forcefully made

her to write a suicide letter. They tied a saree to the ceiling fan

and threatened her to hang herself, otherwise they kill her minor

daughter. On her hues and cries, the neighbors forcefully

opened the door, shifted her to hospital and thereby saved her.

The 4th respondent along with his family members managed the

doctors and took her back to Hyderabad.

x. She has also filed a petition vide M.C.No.34 of 2023 before the

Family Court, at Karimanagar against 4th respondent seeking

maintenance of Rs.35,000/- for herself, Rs.15,000/- each for her

minor daughter and son i.e. petitioners 2 and 3 therein, monthly

rent of Rs.10,000/-. The same is pending.

xi. On 03.09.2023, 4th respondent along with one Burra Prashanth

came to her parents' house, beat her and her family members

and abused them in filthy language. She lodged a complaint

against 4th respondent and his accomplices before the police,

Vemulwada Town Police Station who in turn registered the

same as FIR No.400 of 2023 for the offences punishable under

sections 498A, 448, 324 and 506 read with 34 IPC.

xii. Her minor daughter 'Burra Srikruthi' is studying at Kids

Convent High School at Vemulwada. On 24.01.2024, when she

went to Warangal for the purpose of job interview, she received

a phone call from her father stating that at about 8:40 a.m. when

his minor daughter i.e., 'Burra Srikruthi' was on her way to

school in auto rickshaw, some unknown persons along with 4th

respondent, obstructed the auto rickshaw near Harihara

Function Hall, Vemulawada Town and took away her daughter

forcebly.

xiii. On enquiry, the auto driver by name Pittal Thirupati, informed

her that the said persons had informed that her husband and

other persons took her daughter in a car bearing No.AP 20 AN

8888 and he showed photographs of the said car taken by him.

xiv. On information given by the auto driver to her father about the

said incident, he approached 3rd respondent on 24.01.2024 and

lodged a complaint with them. In spite of receiving the said

complaint, the Police did not register the same but falsely

stating that they are investigating the same.

xv. The petitioner searched for her minor daughter on 24.01.2024

and approached the Police again on 25.01.2024 for which 3rd

respondent again asked to lodge a complaint neglecting the

earlier complaint dated 24.01.2024. She again gave a complaint

which was registered as a case in Cr.No.47 of 2024 dated

25.01.2024 for the offence under section 363 IPC against 4th

respondent only. The police are not investigating the case,

under the influence of 4th respondent.

xvi. The apprehension of the petitioner is that he may kill her minor

daughter as he previously threatened her so.

xvii. Therefore, according to the petitioner, her minor daughter is in

illegal custody of 4th respondent and she sought to issue a

direction to the respondents to produce her minor daughter by

name "Burra Srikruthi."

3. Denying the said allegations and admitting the marriage and

children, 4th respondent filed counter contending as follows:-

i. His daughter is studying in Delhi Public School, Miyapur since

1st Class and now she is in 4th Class. To create false record, the

petitioner admitted the minor girl in Kids Convent,

Vemulawada on 25.09.2023 without transfer certificate from

the said Delhi Public School.

ii. He took away the minor girl with prior intimation to the

petitioner and her sister by name Kaira Akshara and also to 3rd

respondent. He also informed to Superintendent of Police,

Rajanna Sircilla District. He never kidnapped his daughter.

iii. He never demanded additional dowry.

iv. He is very happy for being blessed with a girl child who is more

attached to him.

v. He is working from home since 2020 and taking care of his

daughter left by the petitioner.

vi. When the petitioner was pregnant for the second time, she left

to her parents' house three months before delivery and came

back four months after delivery and during that period, his

daughter stayed in his sister's house without any complaint.

vii. His daughter is studying in the school of her interest and he is

providing her all comforts. The Petitioner suddenly changed

school of the child against her wish.

viii. The petitioner attempted to commit suicide thrice in front of the

minor daughter and disturbed his daughter a lot.

ix. His daughter has been suffering from hypothyroidism,

gastroenteritis and has been under treatment at Rainbow

Hospital, Banjara Hills.

x. The Petitioner took her in August, 2023 and had shown to some

doctor at Vemulawada, which aggravated the child's illness.

xi. In the month of April, 2023, the Petitioner had gone to her

parent's house, but he brought his daughter along with him as

she wished to stay with him. Since April, 2023, his daughter has

been staying with him. In August, 2023, on the eve of Rakhi

festival on the demand of the petitioner, he left his daughter at

his in-laws house stating that he would come back in a day or

two and pick her up. Thereafter, the petitioner and her family

members never allowed him to meet his daughter and filed a

false complaint against him and his other brothers on

03.09.2023 which is registered as a case vide FIR No.400 of

2023.

xii. He took her to hospital when she tried to commit suicide. She

also wrote in a notebook the details of money spent by him

towards her treatment at Omni hospital when she tried to

commit suicide in November 2019.

xiii. He is not aware of M.C.No.34 of 2023 filed by the petitioner

before the learned Family Court at Karimnagar since no notice

was served on him till date.

xiv. His daughter also explained mental agony which she was going

through at Vemulawada because of making her to sit and work

in kirana shop which is explained to this Court during the

interaction on the last date of hearing.

xv. A false complaint was lodged on 25.01.2024 with 3rd

respondent and got another FIR No.47 of 2024 registered

against him under section 363 of IPC.

xvi. He, being the natural guardian and father of the minor child, he

is more concerned with her welfare and future.

4. Opposing the said averments of the counter filed by 4th

respondent, the petitioner herein filed reply contending as follows:-:-

i. When the 4th respondent abducted her daughter while she was

on the way to school on 24.01.2024. 4th respondent and his

family members switched off their mobiles and made her run

around the Police Station and other places along with her son

aged about 18 months and her old aged parents.

ii. He is working as a software Engineer and staying at Sircilla. In

Crl.P.No.12301 of 2023 filed by him under Section 482 of

CrPC, he mentioned his residential address as Sircilla. But in

the counter, he mentioned some unknown address at

Hyderabad, only to mislead the Court.

iii. He cannot take care of her daughter's day to day needs.

iv. Her daughter needs medication for ailments for which her

daughter adjusts with herself only.

v. He left them since April 2023 but portraying that he has

concern about his daughter.

vi. Since he left them mercilessly at her parents home and shifted

to Sircilla from Hyderabad, she has admitted her daughter at

Vemulawada in a good school. He never objected for joining

her daughter in the said school.

vii. Instead of contesting M.C.No.34 of 2023 filed by her, 4th

respondent illegally took away her daughter.

viii. Even the notice sent to the 4th respondent in the present writ

petition was returned as no such person in the said address. This

itself clearly shows that his acts are illegal.

ix. He did not inform to anybody while taking away her daughter.

CC footages of locality clearly describes his unlawful act of

abducting her daughter. The contention of 4th respondent that he

informed to 3rd respondent-Superintendent of Police clearly

shows that he planned to kidnap her daughter.

x. Her daughter is regularly going to school and is now in 4th class

and there are no complaints.

xi. When Court permitted her to interact with her for five minutes

and during the said five minutes, her daughter was under fear

and continuously cried stating that she wishes to come with her.

xii. On 09.10.2021, 4th respondent beat her and threatened to bring

additional dowry and made her to write the expenses incurred

towards her from the date of marriage and now using the said

note to his benefit.

xiii. 4th respondent in Crl.P.No.1301 of 2024 filed on 05.02.2024

mentioned his residential address as Sircilla and now in the

present counter he mentioned his address as Hyderabad which

is within a week.

xiv. She being post graduate of M.Tech in JNTU, aware of the needs

of a minor daughter.

5. During the course of hearing learned counsel on both side

reiterated the aforesaid contentions.

Findings of the Court:-

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

Habeas Corpus are summary in nature. We have to decide the same

basing on the affidavits filed by the parties. In the present writ

petition, we have to consider as to whether the minor child is in illegal

custody of 4th respondent as alleged by the petitioner. Welfare of the

minor child is paramount consideration while deciding this writ

petition.

7. 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.

8. It is relevant to note that this Court in Tarannum Naaz v.

The State of Telangana 1 considered the several aspects and law laid

down by the Apex Court in deciding the custody petitions. In

paragraph No.59 of the said judgment, this Court observed that while

deciding a petition for custody of the minor children, the following

crucial factors are 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,

MANU/TL/0956/2023

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.

9. 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.

There will not be any straitjacket formula in deciding the custody

matters. Finally High Court has to decide whether the custody is

lawful or not.

10. 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 matrimonial disputes between the parties. According to the

petitioner, 4th respondent abducted the minor girl while she was on her

way to school and she is in his illegal custody. He is demanding

additional dowry to return the minor girl. Due to the intervention of

the elders, he handed over her minor daughter back to her. There is

also allegation against him that he along with his brother's wife by

name Padma threatened her to kill her and her minor daughter if she

did not accept for customary divorce. They forcefully made her to

write a suicide letter. They forced her to commit suicide by hanging

herself to a ceiling fan. There are also criminal cases pending against

him. He is maintaining illicit relationship with his brother's wife

'Padma'.

11. On the other hand, 4th respondent alleges that his daughter is

not in his illegal custody as alleged by the petitioner. He took away his

daughter with prior intimation to the petitioner. He never demanded

for additional dowry. He never forced her to commit suicide. His

daughter wishes to stay with him. His daughter suffering from

ailments and he is providing treatment to her in Rainbow Hospital,

Banjara Hills. He dropped her daughter at her parental home on her

request on the occasion of Rakhi festival but not to get additional

dowry.

12. The aforesaid allegations made against each other are very

serious disputed questions of fact which we cannot decide in exercise

of power under Article 226 of Constitution of India. It is the Family

Court which has power to consider the same on conducting full-

fledged trial.

Even according to 4th respondent, he took the minor girl from

auto informing the same to the petitioner's sister who spoke to the

minor girl over phone. He has also informed the said fact to

Superintendent of Police concerned. As discusses supra, 4th

respondent cannot take the minor child from auto while she was going

to school. If he wants custody of the child, he has to take steps in

accordance with law. He has to file appropriate application seeking

custody/visitation rights before Family Court which will have the

benefit of interacting with the parties, child and pass appropriate

orders.

13. Admittedly, the minor girl is 8 years. It is a tender age. She

needs care and support of mother. The minor girl needs medication.

The minor girl will be comfortable with the mother. According to 4th

respondent, he is staying in his sister's house at Hyderabad and his

sister is taking care of the minor girl. But his sister cannot substitute

mother of the minor girl. In normal circumstances, the mother is

entitled for custody of the children. Welfare of minor children is

paramount consideration while deciding custody petitions.

14. In the light of the aforesaid discussion, we are of the

considered opinion that the minor girl should be with the petitioner,

the mother. 4th respondent has to appear in M.C.No.34 of 2023 and

cooperate with the learned Magistrate in deciding the same.

15. It is relevant to note that we have interacted with the

petitioner, 4th respondent and minor girl. During interaction, the minor

girl informed us that she is willing to continue her studies in Delhi

Public School and she is comfortable there. Admittedly, 4th respondent

is staying with his married sister. During the course of hearing,

Sri K.Pradeep Reddy, learned counsel for the petitioner, on

instructions, submitted that the petitioner will shift to Hyderabad, stay

at Hyderabad and continue the minor child in Delhi Public School.

She will also provide treatment to the minor girl.

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

disposed of holding that :-

i. The petitioner, natural mother, is entitled for custody of the

minor girl i.e. Burra Srikruthi, aged about 8 years.

ii. 4th respondent is directed to hand over the minor child by name

'Burra Srikruthi', aged 8 years, to the petitioner herein within

one week from today.

iii. Liberty is granted to 4th respondent to file appropriate

application in terms of Section 7 of the Guardians and Wards

Act, seeking to declare him as a guardian, custody and visitation

rights of minor girl before the 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 and decide the said application.

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

and grounds raised in the present writ petition before the Family

Court and it is for the said Court to consider the same and pass

appropriate orders in accordance with law.

v. 4th respondent shall appear in M.C.No.34 of 2023 pending in

Family Court, Karimnagar on the next date of hearing and

cooperate with the Family Court in early disposal of the same,

irrespective of service of notice. Learned Family Court shall

make an endearvour to decide the said M.C.No.34 of 2023 as

expeditiously as possible considering the fact that the petitioner

has two children aged 8 years and 18 month.