IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
W.P.No.4233 of 2024
Between:
V. Charitha,
W/o.Sujay Kumar Reddy,
Aged about 31 years,
st
Residing 1 floor, Kids Zone Building,
Satyamji Layout, Deseva Gudi,
Kakupalle Village,
Nellore Rural Mandal, SPSR Nellore District,
Andhra Pradesh.
…Petitioner
Versus
1. The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Home Department, Secretariat,
Velagapudi, Guntur District,
Andhra Pradesh.
2. The Director General of Police,
State of Andhra Pradesh, Office at
Mangalagiri, Guntur District,
Andhra Pradesh.
3. The Superintendant of Police,
SPSR Nellore District,
Nellore City, Andhra Pradesh.
4. The Inspector of Police, Nellore Rural Police
Station, SPSR Nellore District,
Andhra Pradesh.
5. Mr. Subba rao, The Inspector of Police,
Nellore Rural Mandal, SPSR Nellore District,
Andhra Pradesh.
6. V. Sujan Kumar Reddy,
S/o.Satish Reddy,
Aged about 31 years,
2
RRR,J & HN,J
W.P.No.4233 of 2024
R/o.Flat No.505,
Mars Paradise Apartment,
Saraswathinagar, Nellore City,
SPSR Nellore District.
…Respondents
Date of Judgment pronounced on : 31-07-2024
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
&
E HARINATH.N
HON’BLE SRI JUSTIC
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
3
RRR,J & HN,J
W.P.No.4233 of 2024
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
&
HON’BLE SRI JUSTICE HARINATH.N
+ W.P.No.4233 of 2024
% Dated: 31-07-2024
V. Charitha,
W/o.Sujay Kumar Reddy,
Aged about 31 years,
st
Residing 1 floor, Kids Zone Building,
Satyamji Layout, Deseva Gudi,
Kakupalle Village,
Nellore Rural Mandal, SPSR Nellore District,
Andhra Pradesh.
…Petitioner
And
$ 1. The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Home Department, Secretariat,
Velagapudi, Guntur District,
Andhra Pradesh.
2. The Director General of Police,
State of Andhra Pradesh, Office at
Mangalagiri, Guntur District,
Andhra Pradesh.
3. The Superintendant of Police,
SPSR Nellore District,
Nellore City, Andhra Pradesh.
4. The Inspector of Police, Nellore Rural Police
Station, SPSR Nellore District,
Andhra Pradesh.
5. Mr. Subba rao, The Inspector of Police,
Nellore Rural Mandal, SPSR Nellore District,
Andhra Pradesh.
4
RRR,J & HN,J
W.P.No.4233 of 2024
6. V. Sujan Kumar Reddy,
S/o.Satish Reddy,
Aged about 31 years,
R/o.Flat No.505,
Mars Paradise Apartment,
Saraswathinagar, Nellore City,
SPSR Nellore District.
…Respondents
! Counsel for the Petitioner : Sri V. Surendra Reddy
^Counsel for Respondents : Sri P. Gangi Rami Reddy
: The Advocate General
<GIST :
>HEAD NOTE:
? Cases referred:
1
2024 SCC Online SC 31
2
2017 (1) ALD 679 DB (AP)
3
2024 SCC Online SC 31
4
Order in W.P.No.23230 of 2023 (TS)
5
(2019) 7 SCC 42
6
2021 SCC Online SC 3434
7
2020 SCC online SC 67
8
2022 SCC Online SC 43
9
2022 SCC Online SC 43
10
2021 SCC Online SC 3434
11
2020 SCC online SC 67
5
RRR,J & HN,J
W.P.No.4233 of 2024
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
SRI JUSTICE R. RAGHUNANDAN RAO
HON’BLE
&
SRI JUSTICE HARINATH.N
HON’BLE
WRIT PETITION No.4233 of 2024
Between:
V. Charitha,
W/o.Sujay Kumar Reddy,
Aged about 31 years,
st
Residing 1 floor, Kids Zone Building,
Satyamji Layout, Deseva Gudi,
Kakupalle Village,
Nellore Rural Mandal, SPSR Nellore District,
Andhra Pradesh.
…Petitioner
Versus
The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Home Department, Secretariat,
Velagapudi, Guntur District,
Andhra Pradesh and 5 others.
Respondents
…
Counsel for the Petitioner : Sri V. Surendra Reddy
Counsel for Respondents : Sri P. Gangi Rami Reddy
The Advocate General
ORDER
Dt: 31.07.2024
(per Sri Justice R. Raghunandan Rao)
Heard V. Surendra Reddy, learned counsel for the Petitioner and
Sri P. Gangi Rami Reddy, learned counsel for respondent No.6.
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RRR,J & HN,J
W.P.No.4233 of 2024
2. The petitioner herein is the mother of the boy, who is said
th
to have been illegally detained by the 6 respondent, who is the father
th
of the boy. The case of the petitioner is that the petitioner and the 6
respondent had been married, as per Hindu Rites and Customs, on
05.03.2017 and they have a son named Master V. Vahin Reddy who
was born on 24.11.2018 in Nellore. The petitioner states that she had
filed a complaint before the Nellore Rural Police Station, under Section
498-A of I.P.C and Sections 3 & 4 of Dowry Prohibition Act, which was
registered as Crime No.416 of 2022. Subsequently, a charge sheet had
been filed in the case and the said case is now numbered as C.C.
No.94 of 2023 after the IV Additional Judicial Magistrate of First Class
had taken cognizance of the charge sheet.
th
3. The petitioner contends that the 6 respondent, had
forcibly entered into the house of the parents of the petitioner, on
28.01.2024 and had forcibly taken away the minor boy. Photographs
th
showing the 6 respondent taking away the child have also been filed.
The petitioner contends that a complaint was immediately given, on
this incident, to the District Women and Children Care Empowerment
Officer, who took steps for an enquiry. The Empowerment Officer was
th
treated very roughly by the 6 respondent after which the petitioner,
having realised that there was every danger of the petitioner losing
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RRR,J & HN,J
W.P.No.4233 of 2024
custody of the child, had approached this Court, by way of the present
writ for Habeas Corpus.
th
4. The petitioner has also alleged that the 4 respondent,
who is the inspector of Police, Nellore Rural Police Station, was siding
th
with the 6 respondent, due to which the petitioner was also forced to
approach this Court as no help could be expected from the police
authorities.
5. The petitioner has also raised her concerns relating to the
health of the minor boy on the ground that he is diagnosed with Autism
and is hyperactive. She further contends that the minor boy has further
defects in the sense that he is not able to talk like any other boy or girl
of his age and that the boy is undergoing speech therapy and
occupational therapy treatment in M.S.R. Spastic Centre, Nellore apart
from being taken for treatment at Rainbow Children’s Hospital,
Chennai.
th
6. The petitioner contends that the 6 respondent, by forcibly
taking away the minor boy, on 28.01.2024, without the intervention of
the Court or any statutory authority has clearly taken illegal custody of
the child and the same needs to be rectified by ensuring that the
custody of the child is given to the petitioner. The petitioner would also
8
RRR,J & HN,J
W.P.No.4233 of 2024
th
contend that the 6 respondent, is not in a position to take care of the
boy.
th
7. The 6 respondent has filed a counter affidavit in which it
th
is stated that the boy is in the custody of the 6 respondent who is his
father and as such the custody of the father cannot be treated as illegal
th
custody for which a writ of Habeas Corpus can be issued. The 6
respondent would also contend that the complaint filed by the petitioner
under section 498-A of I.P.C is a false complaint.
th
8. The 6 respondent contends that his son is with his father
and himself and has been admitted in L.K.G in St. Joseph English
’s
Medium High School and he is going to the school and that the
th
allegation that the 6 respondent has forcibly taken the minor boy on
28.01.2024 is not correct. He states that he is taking immense care in
respect of the health of his son and he has got the health check up of
th
his son at Rainbow Children’s Hospital at Hyderabad. The 6
respondent further contends that the petitioner is working in Chennai
while the father of the petitioner is working in Kuwait and the mother of
the petitioner is suffering with cancer and other health problems. Due
to which, there is no person in the family of the petitioner to look after
the boy whereas the father, grandparents and other family members of
th
the 6 respondent are available to take care of the boy and he is happy
th
staying with his father. However, the 6 respondent, except a bald
9
RRR,J & HN,J
W.P.No.4233 of 2024
denial of the allegations of forcible taking away of the child, has not
th
answered these allegations. The 6 respondent does not deny the
photographs showing him taking away the child. Consequently, it must
th
be held that the 6 respondent has forcefully and unilaterally taken
away the child from the custody of the mother.
th
9. Sri P. Gangi Rami Reddy, learned counsel for the 6
respondent would submit that the custody of the father of the child is
lawful custody and as such, there cannot be any Writ of Habeas
th
Corpus against the 6 respondent. He would rely upon the Judgment
Pavan Kumar Kathuroju
of the Hon’ble Supreme Court in the case of
1
vs. State of Telangana and Others . In this case, the High Court,
upon a petition filed by the mother of the child, had directed the father
to restore custody, of the child, to the mother, as the child was taken
away unilaterally by the father. This order of the High Court was
modified, to the extent of setting aside the direction of the High Court
for handing over the child to the mother, while keeping all other
directions intact.
10.
A perusal of this order would show that the Hon’ble
Supreme Court had issued directions. However, the learned counsel
1
2024 SCC Online SC 31
10
RRR,J & HN,J
W.P.No.4233 of 2024
th
for the 6 respondent has not pointed out the ratio in the said
judgment.
11. On the other hand, Sri V. Surendra Reddy, learned
counsel for the petitioner contends that this Court can always intervene
when the child is under illegal custody, even if the said custody is with
one of the parents. He relies upon the following judgments.
2
1. Arwind Gopi Krishna Chawda vs. State of Telangana ,
3
2. Pavan Kumar Kathuroju vs. State of Telangana and Others
4
3. Kathuroju Anusha Vs The State of Telangana and Others
4. Tejaswani Gaud and Others vs. Shekhar Jagdish Prasad Tewari
5
and Others
5. Jose Antonio Zalba Diez Del Corrol @ Jose Antonio Zalba vs
6
State of West Bengal and Others
7
6. Yashita Sahu vs. State of Rajasthan & Ors.
8
7. Vasudha Sethi & Ors vs. Kiran V. Bhaskar & another
Consideration of the Court:
12. The facts which can be culled out from the pleadings and
th
material placed before this Court is that the petitioner and the 6
2
2017 (1) ALD 679 DB (AP)
3
2024 SCC Online SC 31
4
Order in W.P.No.23230 of 2023 (TS)
5
(2019) 7 SCC 42
6
2021 SCC Online SC 3434
7
2020 SCC online SC 67
8
2022 SCC Online SC 43
11
RRR,J & HN,J
W.P.No.4233 of 2024
respondent are the mother and father of the boy who was born to them
in the course of their marriage which had been performed on
05.03.2017. Thereafter disputes arose between the petitioner and the
th
6 respondent leading to a criminal case between them. The boy was
th
in the custody of the petitioner and the 6 respondent had forcibly
taken away the boy, on 28.01.2024, from the house of the parents of
the petitioner.
13. The petitioner contends that the boy had certain
difficulties, apart from being autistic. She contends that she is ensuring
appropriate medical attention to the boy to get over these problems.
th
The 6 respondent also admits that the boy has these difficulties.
However, he contends that he is also taking care of these difficulties by
th
ensuring proper medical attention to the boy. The 6 respondent also
contends that the petitioner is working in Chennai and she is unable to
th
look after the boy who stays in Nellore with her parents. The 6
respondent contends that he has a better claim for custody of the boy
as the boy would be staying with him and his parents and grandmother
who would all be available to take care of the boy. Apart from this, the
th
6 respondent also contends that he has lawful custody of the boy as
he is the father of the boy and as such a writ of Habeas Corpus would
not be maintainable.
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W.P.No.4233 of 2024
14.
The Hon’ble Supreme Court as well as various High
Courts have been dealing with the question of how such writs of
Habeas Corpus should be treated when one parent files a writ against
the other parent for custody of the child or children. The Judgment of
Jose Antonio Zalba Diez
the Hon’ble Supreme Court in the case of
Del Corrol @ Jose Antonio Zalba vs State of West Bengal and
9
Others , has been passed after considering a few of the preceding
authorities on this issue. The Hon’ble Supreme Court after considering
the earlier judgments of in Yashita Sahu vs. State of Rajasthan &
10
Ors., and Tejaswani Gaud and Others vs. Shekhar Jagdish
Prasad Tewari and Others had extracted the following paragraphs of
Tejaswani Gaud and
the Judgments of the Hon’ble Supreme Court in
Others vs. Shekhar Jagdish Prasad Tewari and Others as the law
with regard to maintainability of Habeas Corpus petitions.
19. Habeas corpus proceedings is not to justify or
examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of
the child is addressed to the discretion of the Court.
Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy
provided by the law is either not available or is
ineffective; otherwise a writ will not be issued. In child
custody matters, the power of the High Court in granting
the writ is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal
custody. In view of the pronouncement on the issue in
question by the Supreme Court and the High Courts, in
our view, in child custody matters, the writ of habeas
9
2021 SCC Online SC 3434
10
2020 SCC online SC 67
13
RRR,J & HN,J
W.P.No.4233 of 2024
corpus is maintainable where it is proved that the
detention of a minor child by a parent or others was
illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies
only under the Hindu Minority and Guardianship Act or
the Guardians and Wards Act as the case may be. In
cases arising out of the proceedings under the
Guardians and Wards Act, the jurisdiction of the court is
determined by whether the minor ordinarily resides within
the area on which the court exercises such jurisdiction.
There are significant differences between the enquiry
under the Guardians and Wards Act and the exercise of
powers by a writ court which is summary in nature. What
is important is the welfare of the child. In the writ court,
rights are determined only on the basis of affidavits.
Where the court is of the view that a detailed enquiry is
required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to
approach the civil court. It is only in exceptional cases,
the rights of the parties to the custody of the minor will be
determined in exercise of extraordinary jurisdiction on a
petition for habeas corpus.
15. Court is that child
The view taken by the Hon’ble Supreme
custody matters must be clearly left to the Courts having jurisdiction
under the respective Guardianship Act. However, a writ of Habeas
Corpus can always be maintained provided the circumstances for
exercise of such an extraordinary remedy are made out before the
Court. The primary requirement for exercise of this extraordinary
remedy would be that the minor is in the illegal detention of a person,
including the parent of the child. Apart from this, the Judgments of the
t only has
Hon’ble Supreme Court also hold that the High Court no
jurisdiction under the writ of Habeas Corpus but also under the Parens
14
RRR,J & HN,J
W.P.No.4233 of 2024
Patraie jurisdiction of the Court which requires the Court to ensure that
the interest of the child in question is looked after.
16. Applying these principles, it is clear that the boy is in illegal
th
custody of the 6 respondent. This view is being taken on the ground
th
that the 6 respondent has forcibly taken away the child from the
custody of the mother. The courts are frequently facing situations
where one parent or the other takes the law into his or her hands and
forcibly takes away the child from the custody of the other parent.
Subsequently, when a writ of Habeas Corpus is moved, the standard
defense taken by the said parent is that the custody of the child is
lawful custody, as the laws state that the mother or father of the child is
the legal guardian of the child. Accepting such a contention would be
rewarding unlawful conduct on the part of such a parent. Condonation
of such behaviour would only embolden other parents to take the law
into their hands and take forcible custody of the child.
17. While the maintainability of a writ of Habeas Corpus has to
pass the initial test of illegal custody, the Court may waive such
question of illegal custody, in special circumstances, when the interest
of the child is in jeopardy. The primary concern of the Court, in such
cases, is the wellbeing of the child, and not the interest of either parent.
15
RRR,J & HN,J
W.P.No.4233 of 2024
th
18. In the present case, the 6 respondent has taken custody
of the child without authority of law. However, this Court, on the basis
of affidavits filed by either side cannot determine whether it would be in
the best interest of the boy for custody to be given, either to the
th
petitioner or the 6 respondent. This is an issue which requires a closer
enquiry by a competent Court which has jurisdiction under the relevant
Guardianship law.
19. In the circumstances, to set aside the forcible taking away
of the child, this Court disposes of this writ petition with the following
directions:
th
1) The 6 respondent shall handover custody of the child to the
petitioner within one week of this order;
2) The child shall be handed over to the petitioner by bringing
the child to the house of the parents of the petitioner in
Nellore during the day time hours and leaving the boy there;
th
3) In the event of the 6 respondent not complying with the
rd
directions of this Court, the 3 respondent shall take steps to
th
depute an appropriate police officer, not being either the 4 or
th
5 respondents, to take custody of the child and handover the
child to the petitioner. For this purposes, the officer so
16
RRR,J & HN,J
W.P.No.4233 of 2024
designated shall take the assistance of the District Women
and Child Welfare Empowerment Officer, SPSR Nellore
District who may depute an official of the department who
assisted the designated police officer;
4) This order is only in terms of interim custody, subject to such
orders as may be passed by a competent Court having
jurisdiction under the appropriate Guardianship;
5) For the purpose of deciding final custody, subject to visitation
rights that may be granted to the other parent, it would be
th
open to both the petitioner as well as the 6 respondent to
approach the appropriate Court for obtaining custody of the
boy. Needless to say, the said Court would not take in to
account any observations made in this order for determination
as to who should get custody of the boy.
There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_______________________
R. RAGHUNANDAN RAO, J
_____________
HARINATH.N,J
RJS
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W.P.No.4233 of 2024
SRI JUSTICE R. RAGHUNANDAN RAO
HON’BLE
&
SRI JUSTICE HARINATH.N
HON’BLE
WRIT PETITION No.4233 of 2024
(per Sri Justice R. Raghunandan Rao)
Dt: 31.07.2024
RJS