Telangana High Court

Sara Fatima vs The State Of Telangana on 27 February, 2024

Author: K. Lakshman

Bench: K.Lakshman, Juvvadi Sridevi

         HON'BLE SRI JUSTICE K. LAKSHMAN
                       AND
       HON'BLE SMT JUSTICE JUVVADI SRIDEVI

             WRIT PETITION No.2263 of 2024

ORDER:

(per Hon'ble Sri Justice K. Lakshman)

Heard Sri Mohd. Azhar, learned counsel for the

petitioner, Sri Godugu Mallesham, learned Assistant

Government Pleader representing learned Additional

Advocate General appearing for respondent Nos.1 to 5

and Ms. Seema Yasmeen, learned counsel representing

Mr. C. Vikram Chandra, learned counsel appearing for

respondent Nos.6 to 8.

2. The marriage of the petitioner with respondent No.6

was performed on 01.05.2010. Thereafter, petitioner

converted from Hinduism to Islam. They blessed with

two children on 14.02.2011 and 23.04.2014. They are

now aged 14 years and 10 years respectively. According

to the petitioner, the children are in the illegal custody of

respondent No.6 from July, 2018. Therefore, she has

filed a writ petition vide W.P.No.22040 of 2018. This

Court vide order dated 01.08.2018, observing the fact

that there are serious disputes between the petitioner

and respondent No.6, he has taken away the minor

children to Dubai and that petitioner herein has not

raised a specific plea that respondent No.6 herein has

forcibly taken away the children from her custody, held

that the action of respondent No.6 in taking the children

to Dubai along with him cannot be per se termed as

either illegal or unlawful or that he has illegally detained

the two minor children. The dispute between the parties

primarily pertains to the custody of minor children. Such

a dispute can only be resolved through the competent

Court of law. With the said observation, this Court

dismissed the said writ petition granting liberty to the

petitioner to avail appropriate remedies as per law

seeking custody of the minor children. According to the

petitioner, she has lodged complaints/representations to

several authorities. She has narrated the same in the

writ affidavit. However, she has filed an application

under Sections 10 and 25 of the Guardians and Wards

Act vide G.W.O.P.No.61 of 2022 seeking custody of the

minor children. The said O.P. is pending.

3. According to the learned counsel for petitioner,

respondent No.6 is leaving one country after another

along with the children and petitioner is not in a position

to trace out the address of respondent No.6 and children.

He is intentionally avoiding notice in G.W.O.P., therefore,

the same is pending. It is coming for his appearance.

4. She has filed three interlocutory applications in the

said OP i.e., (i) seeking visitation rights, (ii) restraining 6th

respondent from leaving the country with the children

and (iii) to deposit original passports of respondent No.6

and children in the Family Court. The said three

applications and the aforesaid G.W.O.P. are pending.

She is working in Dubai and is earning an amount of

Rs.2,00,000/- per month. The children are minor i.e.,

aged about 14 years and 10 years and being mother, she

is entitled for custody of children. In a matter like this,

welfare of children is paramount consideration. Thus,

according to the petitioner, the minor children are in the

illegal custody of respondent No.6. Sometimes, respondent

No.6 is moving away by keeping the children in the

custody of respondent Nos.7 and 8 i.e., his father and

sister. With the said submissions, she filed the present

writ petition.

5. Respondent Nos.6, 7 and 8 have filed separate

counters. Respondent No.6 made specific allegation

against the petitioner herein that she is maintaining

illegal relationship with one Ramesh and in proof of it, he

filed e-mails, photographs, etc. Respondent Nos.7 and 8

have filed counters contending that they have nothing to

do with the internal disputes/matrimonial disputes

between the petitioner and respondent No.6.

6. Sri Godugu Mallesham, learned Assistant

Government Pleader submitted written instructions of

Sub-Inspector of Police, Balapur Police Station wherein

he has stated that on receipt of complaint dated

25.11.2023 from the petitioner, he made G.D. entry and

contacted respondent No.6, who informed him that the

children are in his custody and they are studying in

Akshara International School, Yapral, Hyderabad. He

has also taken the photograph of children along with

respondent No.6 and closed the said complaint.

7. The aforesaid facts would reveal that the children

are in the custody of respondent No.6/father from July,

2018. The said fact was admitted by the writ petitioner

in the writ affidavit itself. Pursuant to the liberty granted

by this Court vide order dated 01.08.2018 in

W.P.No.22040 of 2018, she has filed G.W.O.P.No.61 of

2022 seeking custody of the children and the said O.P. is

pending before the Family Court, Ranga Reddy District at

L.B. Nagar. It is posted to 12.03.2024 for appearance of

respondent No.6. Admittedly, the three interlocutory

applications filed by her are pending. According to the

petitioner, respondent No.6 is intentionally avoiding

notice and is not entering appearance in the aforesaid

O.P.

8. In the light of the aforesaid serious allegations

against each other and also considering the fact that the

disputes between the petitioner and respondent No.6 are

matrimonial disputes and the children are minor, we

have interacted with the petitioner, respondent No.6 and

children separately. During the interaction, petitioner

informed us that she is staying in Dubai and is working

in a Company. She is trying her level best to get her

children and to see them. Respondent No.6 is moving

from one country to other, therefore, she is not in a

position to see the children, and thus, deprived of

visitation rights.

9. During the interaction, respondent No.6 informed

us that he is working in Australia and at present, he is

residing in Hyderabad i.e. H.No.1-4-161/8A, Akash

Enclave, Street No.10, Raja Rajeshwari Colony, Yapral,

Sainikpuri, Secunderabad. He has joined the children in

Akshara International School, Yapral. It is further

informed that he is not moving from India to any other

country including Australia. He is working from home. If

his presence is required in any other country including

Australia, he would obtain prior permission from the

Family Court in G.W.O.P. and leave the country.

10. Proceedings in Writ of Habeas Corpus are summary

in nature. We have to decide the same basing on the

affidavits filed by the parties. In a Writ of Habeas

Corpus, we have to examine as to whether there is any

detention, much less illegal detention, of the minor

children.

11. Admittedly, the children are minor, aged about 14

and 10 years. Petitioner, being the mother of the

children, is entitled for their custody, visitation rights,

etc. In a matter like this, welfare of the minor children is

paramount consideration.

12. In the order dated 09.08.2023 in W.P.Nos.46148 of

2022 and 8087 of 2023, in paragraph Nos.51 and 52,

this Court held as follows:

51. The sum and substance of the aforesaid judgments is as follows:-

i. Proceedings in writ of Habeas Corpus are summary in nature.

ii. Writ of Habeas Corpus is maintainable in child custody matters.

iii. Welfare of minor is the paramount consideration while deciding matters with regard to child custody and it will prevail over Principle of Comity, Principle of First Strike.

iv. Since the proceedings in writ of Habeas Corpus are summary in nature, the same have to be decided basing on the affidavits filed by the parties. v. Each case has to be examined basing on its own facts and circumstances and on case to case basis.

52. Habeas Corpus proceedings is 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.

13. In the light of the aforesaid discussion, in a Writ of

Habeas Corpus, we cannot decide complicated/disputed

questions of facts like allegation of respondent No.6 that

the petitioner is maintaining illicit relationship with one

Ramesh, that respondent No.6 is moving from one

country to another only to deprive the petitioner of

visitation rights and custody of the minor children. It is

for the Family Court to decide the same. As stated supra,

petitioner has already filed G.W.O.P. and the same is

pending, therefore, she cannot pursue parallel remedies.

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

considered view that the minor children are not in illegal