B.L. Narsing Rao vs Union Of India
2024 Latest Caselaw 2079 Tel

Telangana High Court

B.L. Narsing Rao vs Union Of India on 7 June, 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.32406 OF 2023

ORDER:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. T.K. Sridhar, learned counsel for the petitioner,

learned Deputy Solicitor General of India appearing for respondent

Nos.1 and 2, Sri Swaroop Oorilla, learned Special Government Pleader

appearing for respondent Nos.3, 5 to 10, Sri J.V.Srinesh, learned

counsel appearing for respondent Nos.11,13 to 15, Sri S.Viplav Simha

Reddy, learned counsel appearing for respondent Nos.12 and 16 and Sri

Srinivas Kapatia, learned Special Public Prosecutor for CBI appearing

for respondent No.4.

2. This writ petition is filed by the petitioner to direct the

respondents 1 to 10 to produce the petitioner's grand-daughter by name

Shaila, aged about 7 years, from illegal custody of respondents 11 to 16

and to hand over custody to the petitioner.

3.FACTS:-

i. The marriage of the petitioner's daughter i.e. Leena Bhargavi

Bairu, was performed with 11th respondent on 29.05.2013.

ii. They were blessed with a girl by name Shaila on 12.05.2016.

iii. According to the petitioner, 11th respondent is maintaining illicit

relation with respondent No.12, a divorcee, mother of a baby girl.

iv. 12th respondent is dental surgeon and she has knowledge and

experience to administer anesthetic drugs.

v. On 28.06.2022, respondent No.12 trespassed into the house of the

petitioner's daughter in USA, abused and revealed her extra

marital affair with 11th respondent.

vi. The petitioner's daughter died on 08.11.2022.

vii. According to the petitioner, it is unnatural death and 11th

respondent committed murder of his daughter conspiring with

respondent No.12.

viii. On coming to know about the death of his daughter, as he was in

USA, he lodged a complaint with police there and they have

collected blood samples etc.

ix. He came back to India on 29.01.2023. He has also lodged a

complaint with 10th respondent. But he did not act upon the same.

Therefore, he has sent representations to respondents 5 to 9 and

also filed a complaint under Section 200 of Cr.P.C. before the

learned I Additional Junior Civil Judge-cum-I Additional

Metropolitan Magistrate at Malkajigiri, who in turn referred the

said matter to 10th respondent. Even then, 10th respondent did not

register First Information Report. Therefore, the petitioner has

filed a writ petition vide W.P.No.30187 of 2023 seeking a

direction to 10th respondent to register the complaint.

x. Thereafter, 10th respondent has registered a case in Cr.No.879 of

2023 against 11th respondent and others for the offences

punishable under Sections 302, 120-B and 498-A of IPC and

under Sections 3 and 4 of the Dowry Prohibition Act.

Investigation in the said crime is pending.

xi. According to the petitioner, he received death certificate of his

daughter on 08.09.2023 which shows the cause of death as

Fentanyl and Alprazolam toxicity. The Fentanyl and Alprazolam

are two different drugs. Fentanyl is a potent synthetic opioid drug

approved by the Food and Drug Administration for use as an

analgesic (pain relief) and anesthetic. It is approximately 100

times more potent than morphine and 50 times more potent than

heroin as an analgesic.

xii. According to the petitioner, his daughter's death is not a natural

death and 11th respondent conspired with 12th respondent and

committed murder of his daughter.

xiii. He has narrated the said aspects in the writ affidavit in detail.

xiv. 11th respondent is leading adulterous life with 12th respondent and

his parents/respondents 13 to 14 and brother are supporting him.

16th respondent is father of 12th respondent and he is also

supporting them.

xv. 12th respondent is a divorcee, she is also having a baby girl. She is

leading adulterous life with 11th respondent. There is danger to the

life of his grand-daughter and the girl will become an orphan

where her custody will be shifted to boarding schools operated by

State which is not in the best interest of his grand-daughter.

xvi. He has also placed reliance on catena of judgments of various

courts and the Apex Court. He is seeking custody of his grand-

daughter.

xvii. In paragraph No.16 of the writ affidavit, he has contended that

though 11th respondent is a natural guardian, he is unfit to act as a

guardian because of his unethical and immoral act as the

circumstances are pointing towards his involvement in causing

unnatural death of his daughter as such in the paramount welfare

of the minor entrusted with the custody with his grand daughter

though she is a USA citizen.

xviii. He has also alleged that respondents 11 and 12 have jointly

purchased property on 03.08.2023 at Austin city, Texas State,

USA indicating their marital status as unmarried man and

unmarried woman vide Deed of Trust for transfer of property. He

has submitted a representation to 2nd respondent who in turn sent

a reply informing the petitioner that he has to request the

enforcement agencies for extradition of the accused and also his

grandchild.

xix. Thus, according to the petitioner, his granddaughter, aged about 7

years is in illegal custody of respondent No.11.

4. 11th respondent filed counter denying the allegations made by

the petitioner in the writ affidavit. According to him, his wife got

COVID in May, 2022 and since then, she had been complaining of

weakness and intermittent chest pain as post-COVID symptoms, She

also suffered with severe cold and sinus issues. His wife died due to

pneumonia. It is a natural death. His daughter is with him He is taking

care of and welfare of his daughter. After the incident, his daughter was

scared to live in the same house where her mother passed away and

wanted them to move. 12th respondent is only his tenant and he never

maintained illicit relation as alleged by the petitioner. 11th respondent

being natural father is in legal custody of the minor child. The petitioner

cannot seek custody making false allegations against 11th respondent

herein. The petitioner visited the house of 11th respondent twice and

spoiled the mind of the minor girl and also neighbours. Therefore,

according to the 11th respondent, he, being natural father, is entitled for

custody of the minor girl and minor child is in his legal custody.

5. 12th respondent also filed counter denying all the allegations

made against her. According to her, she was tenant of the 11th

respondent and paid rent. Thereafter, she has shifted the said house.

After giving birth to a baby girl, disputes arose between her and her

husband and therefore, she has obtained divorce and leading her normal

life along with her daughter. She never maintained illicit relation with

11th respondent as alleged by the petitioner.

6. Respondents 13 and 15 have also filed counters in the same

lines as that of 11th respondent.

7. 16th respondent filed counter denying allegations leveled

against him. According to him, 12th respondent is his daughter and she

was dragged into the present case illegally. She is not maintaining illicit

relation with 11th respondent as alleged by the petitioner.

8. 4th respondent-CBI filed counter contending that CBI is

empowered to investigate all offences notified by the Central

Government under Section 3 of the Delhi Special Police Establishment

Act, 1946 (for short, 'DSPE Act') predominantly pertaining to bribery/

corruption in various departments of Central Government, serious frauds

in Banks, Stock Exchanges, Financial Institutions, Joint Stock

Companies, Public Limited Companies, and those offences having inter-

state and international ramification. Therefore, they cannot investigate

into the present case since it is a dispute between the petitioner and 11th

respondent.

FINDINGS OF THE COURT:-

9. The aforesaid facts would reveal that the minor child is aged

about 7 years and she was born on 12.05.2016. There is no dispute that

daughter of the petitioner and wife of 11th respondent died on

08.11.2022. There is dispute with regard to her death. According to the

petitioner, it is unnatural death. According to the 11th respondent, it is

natural death. However, this Court cannot go into the said aspects in a

writ of habeas corpus and a case in Cr.No.879 of 2023 is registered. It is

for the Investigating Officer to consider the said aspects and also trial

Court on filing of charge sheet, if any.

10. 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 girl is in illegal custody of

11th respondent as alleged by the petitioner. In a matter like this, welfare

of the child is of paramount consideration while deciding this writ

petition.

11. 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.

12. 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. Article 226 of Constitution of India has been

described as a writ of right which is grantable 'ex debito justitiae'.

Though a writ of right, it cannot be deemed as a writ of course. The

applicant/petitioner must establish a prima facie case of unlawful

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.

13. 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,

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.

MANU/TL/0956/2023

14. 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, the High Court has to decide whether the custody is lawful or

not.

15. In the light of the aforesaid principles laid down by the Apex

Court, coming to the case on hand, as discussed supra, no doubt that the

minor girl is aged about seven years. 11th respondent is her natural

father. The petitioner herein is her maternal grandfather. While deciding

custody matters, welfare of the minor child is paramount consideration.

16. The writ petitioner made serious allegations against

respondent Nos.11 and 12. He has narrated the same in detail in the writ

affidavit. But it is a writ of Habeas Corpus filed by the petitioner

seeking production and custody of his minor grand-daughter. Therefore,

the said aspects are not much relevant to consider in detail.

17. In the present case, we have to decide as to whether the

custody of the minor girl with the 11th respondent is illegal.

18. As discussed supra, we have to decide the present writ petition

basing on the affidavits. According to the petitioner, his daughter's

death is unnatural. We cannot go into the said aspects in view of the

pendency of the aforesaid crime. There is no dispute that the minor girl

was born and brought up in USA and she is a citizen of USA.

19. According to the respondents 11 and 12, they are not leading

adulterous life as alleged by the petitioner. 12th respondent is only a

tenant of 11th respondent and she has paid rent to 11th respondent. Now

she moved out of the said house.

20. Referring to the photographs and whatsapp chats, learned

counsel for the petitioner would contend that the minor child of 11th

respondent and baby girl of 12th respondent are studying in the very

same school which shows adulterous life of respondents 11 and 12.

Therefore, according to him, there is danger to the life of the minor

child. It is a factual aspect. This Court cannot go into the same in a writ

petition filed under Article 226 of the Constitution of India. No doubt,

this Court can go into certain factual aspects but certainly not

complicated /disputed questions of fact. The aforesaid aspects are

complicated/disputed questions of fact which we cannot go into.

21. The petitioner herein has also specifically alleged that 11th

respondent has transferred certain amounts to 12th respondent and

purchased property in the name of 12th respondent. Both the respondents

11 and 12 denied the said aspect in the counters filed by them. It is a

factual aspect which this Court cannot consider in a writ petition filed

under Article 226 of India.

22. There is no doubt that the petitioner herein is maternal

grandfather of the minor child. He is seeking custody of the minor child.

There are various statutes which have legislative recognition. The

Guardian and Wards Act, 1890 (for short, 'the Act') is enacted to

consolidate and amend the law relating to Guardian and Ward.

23. Section 4 of the Act defines the word 'minor', 'guardian' and

'ward' as follows:-

(1) "minor" means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is to be deemed not to have attained his majority:

(2) "guardian" mean's a person having the care of the person of a minor or of his property, or of both is person and property:

(3) "ward" means a minor for whose person or property, or both, there is a guardian:

Sections 5 to 19 in Chapter-II of the Act deals with appointment and

declaration of guardians. Section 7 deals with power of the Court to

make order as to guardianship. Section 17 of the Act deals with the

matters to be considered by the Court in appointing guardian which is

relevant and extracted below:-

Section 17:- Matters to be considered by the Court in appointing guardian.--

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) ............(omitted)..........

(5) The Court shall not appoint or declare any person to be a guardian against his will.

Therefore, if the petitioner wants custody of the minor child, he has to

approach competent jurisdictional Family Court by way of filing an

application under Section 7 of the Act to appoint him as guardian and

seek interim custody of his granddaughter. Learned Family Court will

have benefit of interacting with the parties including the petitioner, 11th

respondent and minor girl. The only issue that arises in the present case

is that 11th respondent is in USA and the minor girl also is in USA with

11th respondent. She is USA citizen, born and brought up there itself.

24. Referring to the same, learned counsel for the petitioner

expressed difficulty that would arise in the service notice on 11th

respondent. But, he can serve notice on 11th respondent through e-mail

or whatsapp with the permission of the learned Family Court.

25. As rightly contended by 2nd respondent, the petitioner has to

request Enforcement Agencies to seek extradition of the accused and

also the minor child. Admittedly, the aforesaid crime is pending. The

Investigating Officer will take all the steps in accordance with law,

while conducting investigation in the aforesaid crime.

26. It is also relevant to note that there are many cases wherein

the minor children are in USA and the spouses/grand-parents are

seeking custody of the said children. Therefore, National Commission

for the Protection of Child Rights (NCPCR) has appointed a Committee

consisting of three Members. The Ministry of Home Affairs,

Government of India has also issued guidelines for approaching said

Committee and the procedure to be followed by the said Committee.

The petitioner has to avail any of the aforesaid remedies. Instead of

doing so, he has filed the present writ petition.

27. As discussed supra, at the cost of repetition, 11th respondent,

being the natural father of the minor child is having custody of the

minor child. Just because, the petitioner made allegations against 11th

respondent that he has committed murder of his wife, we cannot say that

the minor child is in illegal custody of 11th respondent. Investigation in

the said crime is pending.

28. In the light of the aforesaid discussion, this writ petition is

disposed of granting liberty to the petitioner to file appropriate

application in terms of Section 7 of the Guardians and Wards Act,

seeking custody of the minor child i.e. Shaila, aged about 7 years, before

a competent jurisdictional Family Court and it is for the Family Court to

decide the said application in accordance with law. Liberty is also

granted to the petitioner to seek interim custody of the minor child and

to approach Enforcement Agencies for extradition of 11th respondent

and the minor child 'Shaila'. Liberty is also granted to the petitioner to

approach National Commission for the Protection of Child Rights

(NCPCR) and also the committee appointed by it. The Investigating

Officer shall conduct investigation in the aforesaid crime strictly in

accordance with law.

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

________________________ JUSTICE K. LAKSHMAN

_________________________ JUSTICE P.SREE SUDHA Date:07.06.2024.

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