Telangana High Court

Muppana Divya vs The State Of Telangana on 22 March, 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.3862 of 2024

ORDER:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. P.V.L.Bhanu Prakash, learned counsel for the

petitioner, Sri Chaitanya Kiran, learned Assistant Government

Pleader appearing for respondent Nos.1 to 4 and Sri Lingam

Divakara Rao, learned counsel appearing for respondent No.5.

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

respondents to produce her minor daughter by name Muppana

Ahaana, aged 3 years 4 months, before this Court.

Facts:-

i. Marriage of the petitioner was performed with 5th respondent

on 03.03.2018 as per hindu rites and customs.

ii. They were blessed with a baby girl by name Muppana

Ahaana born on 05.10.2020.

iii. After marriage, they resided at Visakhapatnam as 5th

respondent was practicing law there. Two years back, they

shifted to Hyderabad and residing along with his mother and

brother.

iv. They got joined her minor daughter in M/s Firstcry Intellitots

Pre-school at Khajaguda, Hyderabad and at present she is

studying there.

v. Since marriage, her husband, his mother and brother started

harassing her demanding of additional dowry.

vi. In routine course, on 07.02.2024 in the morning, she dropped

her minor daughter at school and returned back home. On

the same day, her husband, his mother and brother forcefully

necked her out of the house without any reason.

Apprehending danger to her daughter in the hands of 5th

respondent, she immediately rushed to school to take her

minor daughter, but the school authorities informed her that

her husband visited the school in the morning hours and took

her daughter away. Thereafter, she again visited the house of

5th respondent and questioned his act and asked him to show

her minor daughter. On checking entire house premises, she

did not find her daughter.

vii. Then she had informed the incident to her father who

requested 5th respondent to show minor girl but 5th

respondent bluntly refused.

viii. The 5th respondent kept minor girl in an undisclosed

location.

ix. Then she lodged a complaint with Women Police Station,

Gachibowli, Ranga Reddy District on 07.02.2024 against 5th

respondent. Though the police officials received and

acknowledged the complaint, they have not registered the

same and traced her daughter.

x. Her husband intentionally to settle scores with her, abducted

her minor daughter from school and is not showing her

daughter.

xi. She does not know whether her daughter is alive or not.

xii. Being mother of a daughter, she is entitled for custody of the

child.

3. 5th respondent had filed counter denying the allegations

made by the petitioner contends that:-

i. On 07.02.2024 he went to Max Vision Eye Hospital,

Manikonda to get treatment to conjunctivitis. He received a

call from his mother stating that the petitioner, his father-in-

law and others entered into his flat, behaved with his mother

rudely and took out the luggage and went away. He asked

his mother to request them to wait till his return along with

the minor girl from school. He extended his appointment

and returned back home along with minor girl. By that time,

the petitioner and her father went away.

ii. He received a phone call from Raidurg Police Station

informing that petitioner complained against him stating that

he kidnapped the minor girl, and the police asked him to

appear before them. Accordingly, he went to Police Station

and explained that the child is in his legal custody. Then they

instructed him to go to Women Police Station, Gachibowli.

He went to the said Police Station where the Police

threatened him with dire consequences if he does not hand

over the custody of the minor girl to the petitioner.

iii. His father-in-law with his influence got the respondent

unlawfully detained in the Police Station, and proclaimed

that he will separate the respondent from his daughter.

iv. In pursuance of the same, he along with the petitioner, police

personnel went to his flat to grab the custody of minor girl

high handedly. In the meanwhile. as his minor daughter, his

mother and brother started to meet him at Police Station, he

secured the custody of his minor daughter with great

difficulty. He was not even permitted to get eye drops from

the pharmacy.

v. His father-in-law who is a Special Public Prosecutor in

District Court at Vizianagaram abused his power and

subjected him to physical and mental harassment. Thereafter,

at about 6.00 p.m. the police set him free. Thus, the

petitioner herein left the conjugal society along with her

father on 07.02.2024 without any valid reason, along with

her belongings, clothes, silver and gold articles.

vi. He apprehends danger to his daughter. He is taking utmost

care of his child about her health, schooling and recreation

etc., He is providing education to his daughter with

international standards. The petitioner is staying in a village

where she cannot get such good education.

vii. The petitioner is suffering from genetic disorder, Albinism,

Nystagmus and also has blurred vision. Therefore, the

petitioner and her father are not in a position to look after the

minor girl.

viii. His daughter requires regular vaccination and health check-

up at Mathpathi Children and Specialty Clinic at

O.U.Colony, Shaikpet, Hyderabad, and Schooling at Firstcry

Intellitots at Prashant Hills, Khajaguda, Hyderabad.

ix. The acts of the petitioner, her father and five Police

Personnel on 07.02.2024 were recorded in CC Camera

Footage of his apartment i.e. TVS Lake view apartments, at

Manikonda and same was captured with screen shot photos

and filed herewith.

x. He had filed GWOP No.18 of 2024 under Sections 7 and 9

of Guardians & Wards Act, 1890 read with Section 6 of

Hindu Minority & Guardianship Act, 1956 read with Section

7(1) (g) of Family Court Act, 1984 to declare and appoint

him as the natural guardian of minor girl and grant custody

of the minor girl to him considering her best interests.

xi. In the said GWOP, he had filed I.A.No.170 of 2024. Learned

Judge, Principal Family Court, Ranga Reddy District at

L.B.Nagar vide order dated 13.02.2024 granted interim

custody of the minor girl to him. The said I.A.No.170 of

2024 is pending and the interim order is subsisting.

Petitioner knows the said order and even then, she has filed

the present writ petition.

4. With the aforesaid submissions, he sought to dismiss the

present writ petition.

5. The learned Asst. Govt.Pleader had produced written

instructions of the Sub Inspector of Police, WPS Gachibowli/

respondent No.4, wherein it is stated that on 07.02.2024 at 13.32

hours the petitioner herein has lodged a complaint stating that her

husband, mother-in-law and brother-in-law harassed her physically

and mentally with a demand of additional dowry. On 07.02.2024

petitioner's father came to their house in order to take her and her

child to her parents house. Her husband went to her minor

daughter's play school and abducted her and kept in some place.

Basing on the said complaint, they along with Raidurgam

patrolling staff, went to the house of the petitioner and found it

locked. Then respondent No.4 called her husband over phone and

held counseling, but her husband not agreed to return the daughter

stating that he is Advocate by profession, knows about the

provisions of law and wants to proceed legally. In pursuance of the

order dated 14.02.2024 of this Court, he served notice on 5th

respondent.

6. During the course of hearing, learned counsel on both side

reiterated the aforesaid contentions.

Findings of the Court:-

7. 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 5th respondent as alleged by the petitioner.

Welfare of the minor child is paramount consideration while

deciding this writ petition.

8. 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.

9. It is relevant to note that in Tarannum Naaz v. The State

of Telangana 1 this Court considered several aspects and law laid

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

MANU/TL/0956/2023

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.

10. 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.

11. Coming to the facts of the present case, according to the

petitioner, her marriage was performed with 5th respondent on

03.03.2018. They were blessed with a baby girl by name Muppana

Ahaana born on 05.10.2020. Since marriage, her husband, mother-

in-law and brother-in-law harassed her physically and mentally

demanding with a demand of additional dowry. On 07.02.2024 her

husband forcibly necked her out. Her husband forcibly abducted

her daughter from school and kept in his illegal custody and not

allowing her to see her daughter. Despite lodging a complaint, the

police concerned did not take any action and trace her daughter.

Police facilitated 5th respondent from 07.02.2024 to 13.02.2024 so

that he will get an order from the Family Court suppressing the

said material fact. The petitioner, being the mother of the minor

girl, is entitled for custody of the child.

12. According to 5th respondent, on 07.02.2024 when he

went for eye treatment to hospital, the petitioner herein left the

conjugal society along with her father without any valid reason and

she has taken all her belongings, clothes, silver and gold articles.

She had lodged a false complaint with Raidurg Police Station

against him stating that he kidnapped the minor girl. The police

harassed him basing on the said complaint under the influence of

his father-in-law who is a Special Public Prosecutor in District

Court at Vizianagaram. Even the Police, Women Police Station,

Gachibowli threatened him with dire consequences if he does not

hand over the custody of the minor girl to the petitioner. Unable to

bear the harassment by the petitioner, he had filed GWOP No.18 of

2024 to declare and appoint him as the natural guardian and also

grant custody of the minor girl to him considering her best interest.

In the said GWOP, he had also filed a petition vide I.A.No.170 of

2024 seeking continuation of custody of minor girl with him.

Learned Judge, Principal Family Court, Ranga Reddy District at

L.B.Nagar vide order dated 13.02.2024 restrained the petitioner

herein from disturbing the minor child. The petitioner is staying in

a village, where she cannot provide comforts and needs to the

minor girl. The petitioner being a patient of some ailments, not in a

position to look after the minor girl. His daughter requires regular

vaccination and health check-up at Mathpathi Children and

Specialty Clinic at O.U.Colony, Shaikpet, Hyderabad, and

Schooling at Firstcry Intellitots at Prashant Hills, Khajaguda,

Hyderabad. The acts of the petitioner, her father and five Police

personnel who entered into his house on 07.02.2024 and searched

for minor girl were recorded in CC Camera Footage of his

apartment.

13. The aforesaid facts would reveal that there are

matrimonial disputes between the petitioner and 5th respondent. He

has filed the aforesaid GWOP No.18 of 2024 seeking to declare

and appoint him as the natural guardian and also grant custody of

the minor girl to him. He has also filed a petition vide I.A.No.170

of 2024 and vide order dated 13.02.2024, learned Family Court

restrained the petitioner from disturbing the custody of the minor

child.

14. The aforesaid allegations made by the parties against

each other are serious questions of facts which we cannot decide in

exercise of extraordinary power of this Court under Article 226 of

the Constitution of India. Learned Family Court will decide the

said aspects.

15. Thus, 5th respondent is seeking custody of the minor girl

on the following two grounds:-

i. Petitioner is suffering with genetic disorder, albinism,

nystagmus and has blurred vision.

ii. Petitioner is staying in a village situated at Vijayanagaram

District, AP, therefore, she may not be in a position to

provide proper facilities to the minor child such as

vaccination, health check up, schooling.

16. It is relevant to note that the minor girl is aged 3 years 4

months and there is no complaint against the petitioner that she is

not taking care of the minor child due to her ailments. For the first

time, 5th respondent made such an allegation. It is not a ground to

deny custody of the minor girl to the petitioner. Even according to

5th respondent, petitioner has her parents and her father is a Public

Prosecutor. They are residing at Nellimerla Village and Mandal,

Vijayanagaram District, Andhra Pradesh which is not a remote

place as alleged by 5th respondent.

17. With regard to vaccination, health check up etc.,

Nellimerla village is a Mandal Headquarter and there would not be

any problem to the petitioner to get vaccination and health check

up of the minor child. On the said ground, this Court cannot deny

custody of the minor girl to the petitioner.

18. As discussed supra, while deciding petitions with regard

to custody of minor child, welfare of the child is paramount

consideration. In the present case, minor child is a girl child aged 3

years 4 months. More than anything, she needs care and protection

of mother. If the petitioner has any problem including health

problem as alleged by the 5th respondent, she can take help of her

mother. The said aspects were not considered by the learned

Family Court while granting the aforesaid interim order dated

13.02.2024.

19. In the said order dated 13.02.2024, despite referring the

age of the minor girl, learned Family Court, injuncted the petitioner

from disturbing the custody of the minor child. No reasons were

assigned by the Family Court, except stating that considering the

averments in the petition, documents on record and age of the

child. It is also apt to note that though the Family Court held that

the child was produced and seen actively playing with mother and

brother of 5th respondent. If the 5th respondent is deprived of the

custody of the child, the child would be put to hardship since she is

accustomed to the custody of her father and that the petitioner

herein has left the daughter with 5th respondent's mother while

leaving the house on 07.02.2024. The said finding of the learned

Family Court is not on consideration of actual facts on record

stated supra. Learned Family Court adjourned the matter to

27.02.2024, from 27.02.2024 to 09.03.2024 and 09.03.2024 to

28.03.2024. Learned Family Court cannot adjourn the Interlocutory

Application filed for custody of minor child just like that in a

routine manner. Family Court has to consider the pleadings and

documents of both the parties and decide the said application at the

early. In the present case, learned Family Court did not do so.

20. Admittedly, the minor girl is aged about 3 years 4

months. It is a tender age. She needs care, protection and support of

mother. The minor girl needs medication. The minor girl will be

comfortable with the mother. Nobody can substitute mother for

caring at such tender age. Welfare of the minor child is of

paramount consideration while deciding custody petitions.

21. In view of the aforesaid discussion, we are of the

considered view that the custody of the minor child should be with

the petitioner/mother. If the 5th respondent wants interim custody,

visitation rights of the minor child, he has to seek the same from

the Family Court which will have benefit of interacting with the

parties including the child and material available and decide the

same.

22. Therefore, this writ petition is allowed as follows:-

i. 5th respondent is directed to hand over the minor child by

name Muppana Ahaana, to the petitioner herein within one

week from today.

ii. Liberty is granted to 5th respondent and petitioner to pursue

GWOP No. 18 of 2024 filed by him before the learned

Principal Family Court, Ranga Reddy District at L.B.Nagar,

to declare and appoint him as a guardian, custody and

visitation rights of minor girl.

iii. 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.