APHC010332102024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3541] MONDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM WRIT PETITION Nos.16696 & 16697 of 2024 Between: 1. GORIPARTHI DURGA PRASAD, S/O. SOBHANACHALAM, AGED ABOUT 42 YEARS,R/O GANNAVARAM, KRISHNA DISTRICT. ...PETITIONER AND 1. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY, HOME DEPARTMENT, SECRETARIAT BUILDING, VELAGAPUDI, GUNTUR DISTRICT. 2. THE DIRECTOR GENERAL OF POLICE, STATE OF ANDHRA PRADESH, AMARAVATHI. 3. THE DISTRICT SUPERINTENDENT OF POLICE, AMALAPURAM, KONASEEMA DISTRICT. 4. THE DISTRICT COLLECTOR, COLLECTORATE BUILDING, AMALAPURAM, KONASEEMA DISTRICT. 5. THE CIRCLE INSPECTOR, RAZOLE POLICE STATION, RAZOLE, KONASEEMA DISTRICT. 6. THE STATION HOUSE OFFICER, NAGARAM POLICE STATION, NAGARAM, MAMIDIKUDURU, KONASEEMA DISTRICT. 7. G AMRUTHA DEVI, W/O. GORIPARTHI DURGA PRASAD, D/O. SEELAM KRISHNA,AGED ABOUT 33 YEARS. LAST RESIDED AT ADAVIPALEM VILLAGE, BATTELANKA, MALKIPURAM MANDAL, 2 EAST GODAVARI DISTRICT. 8. SEELAM KRISHNA, S/O. NARAYANA DASU, AGED ABOUT 65 YEARS,R/O. ADAVIPALEM VILLAGE, BATTELANKA, MALKIPURAM MANDAL. EAST GODAVARI DISTRICT. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue a Writ of Habeas Corpus or any other appropriate writ, directing the Respondents No 1 to 6 herein to produce the Petitioner's Minor son Bahulya aged about 16 years before this Hon'ble Court from the illegal custody of the Respondents No. 7 and 8 and consequently hand over the custody of the Minor son Bahulya to the Petitioner herein and/or pass IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant leave to the Respondent No.6 in W.P.No.16696 of 2024 to file counter affidavit in the above Writ Petition and pass Counsel for the Petitioner: 1. VUBBARA DUSHYANTH REDDY Counsel for the Respondent(S): 1. THE ADVOCATE GENERAL 2. MUDUNURI ANAND KUMAR 3 The Court made the following Common Order: (per Hon’ble Sri Justice R. Raghunandan Rao) As both these Writ Petitions relate to the same issue and are between the same parties, they are being disposed of by way of this Common Order. 2. The petitioner herein has approached this Court by way of W.P.No.16696 of 2024, contending that his son has been unlawfully detained by the respondents 7 & 8 and as such, his son should be produced before the Court and handed over to him. The petitioner filed W.P.No.16697 of 2024 for the same relief, in relation to his daughter. 3. The case of the petitioner is that he had married the 7th respondent, on 11.02.2007 and that both children were born to them thereafter. The petitioner contends that the 7th respondent on account of marital disputes had left the company of the petitioner along with two minor children apart from filing complaint under Section 498-A of IPC and read with Sections-3&4 of Domestic Violence Act, 2005, which was numbered as C.C.No.222/2019 on the file of Judicial First Class Magistrate, Razole. The petitioner contends that the 7th respondent also filed a petition for divorce, which was O.P.No.13 of 2020 before the Senior Civil Judge, Razole. 4. It is further stated that the criminal complaint was settled out of the Court and the matter was referred to Lok-Adalath, which passed an award dated 12.03.2022, compounding the offences made therein. The petitioner contends that the 7th respondent forced him to accept a mutual consent divorce as a condition for withdrawing the criminal case filed against him earlier. It appears that the divorce petition O.P.No.13 of 2020 on the file of Senior Civil Judge, Razole was sought to be settled and the terms were set out in the affidavit filed before the Trial Court. The petitioner contends that one of the terms was that the petitioner would be allowed to visit the children monthly once on 1st Sunday of every month during the daytime and that he would be permitted to take the children out and drop them back at her house before sunset on the same day. It is also stated that this O.P.No.33 of 2022 4 came to be dismissed for default. The petitioner however contends that since the 7th respondent had agreed for the petitioner to visit and take the children out on the 1st Sunday of every month, the same would remain binding on her and that he would be entitled to the said visitation rights. 5. The cause for the petitioner to approach this Court, according to the petitioner, is that the 7th respondent did not permit the petitioner to see his children, who were not being given proper education due to which he sought to intervene and thereupon, the 7th respondent had cut off all contact with him. The petitioner contends that due to these actions of the 7th respondent, he is unable to contact his children and therefore seeks a Writ of Habeas Corpus to be issued. 6. This Court, on 02.08.2024 had permitted the petitioner to take out personal notice to the respondents 7 & 8. The 6th respondent-Station House Officer, Nagaram Police Station, appeared before this Court personally and stated that the 7th respondent had moved out of his territorial jurisdiction along with the children. The matter came up on 19.08.2024, when the investigation officer had filed a report setting out the steps taken for tracing the 7th respondent and the children. On 09.09.2024, Sri M. Annand Kumar, learned counsel had filed vakalat on behalf of the 8th respondent and sought time for filing a counter affidavit. On 23.09.2024, this Court was informed by the learned counsel, for the 8th respondent, that the 7th respondent had sent a Whatsapp video message, in which she stated that she was not interested in seeing her husband and she wished to live away from him and without his interference. The video message is said to have contained a video message from the children also. A copy of the video message has also been given to the learned counsel for the petitioner. Thereupon, on 01.10.2024, learned counsel for the petitioner, on instructions from the petitioner, stated that the said videograph showed that the children were being forced into making such statements. The matter underwent various adjournments to give time to the investigating officer for tracing the 7th respondent. On 04.03.2025, the Learned 5 Government Pleader has produced instructions of the 6th respondent, in which it is stated that the 7th respondent was traced to the Bank of India, MVP Colony Branch, Visakhapatnam, when she approached the bank to withdraw money on a self-cheque. Thereafter, the matter underwent various adjournments and a counter affidavit was filed on 16.06.2025 by the 6th respondent. 7. The counter affidavit filed by the 6th respondent set out the details of the steps taken to trace the 7th respondent. In this affidavit, it is stated that a police constable from the police station of the 6th respondent had been deputed to the Bank of India, MVP Colony Branch, Visakhapatnam, to make further enquiry. However, this enquiry did not provide any further details as to the whereabouts of the 7th respondent. However, the 6th respondent states that the 7th respondent is not willing to have any contact with the petitioner and that she and her children are staying away on account of this desire of the 7th respondent. 8. Learned counsel for the petitioner would submit that the petitioner is entitled to know the whereabouts of his children and that the 7th respondent cannot deny of custody of his children and the same would amount to illegal custody by the 7th respondent. 9. Learned Government Pleader, would contend that a Writ of habeas corpus would be maintainable when a case of illegal detention is made out. He would further submit that a Writ of habeas corpus cannot be pressed for tracing missing persons and relies upon the Judgment of the Hon’ble High Court of Madhya Pradesh, in the case of Simmi Bai Vs. Shrimaan Police Mahanirikshak Mahodaya & Ors1. In this Writ Petition, the wife had taken away the children and the husband approached the Court, seeking a direction to trace the wife and children. The Hon’ble High Court of M.P, had taken the view that such a Writ would not be maintainable in as 1 2025 SCC Online MP 893 6 much as a Writ of habeas corpus can be sought only when there is wrongful confinement and as such, the case of missing persons cannot be brought under the provisions of habeas corpus Writ jurisdiction. The Hon’ble High Court of M.P has also held that in such cases, it would always be open to the petitioner to approach the police under the provisions of the Indian Penal Code and seek registration as a missing person case. 10. We cannot hold that the custody of the mother over her children is illegal. The questions of custody and visitation rights have to be determined by the appropriate Family Court. It would be appropriate to close these Writ Petitions leaving it open to the petitioner to avail of his rights under the law. 11. Accordingly, these Writ Petitions are closed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. _______________________ R. RAGHUNANDAN RAO, J _____________________ SUMATHI JAGADAM, J Dated: 14.07.2025 BSM 7 THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO AND THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM WRIT PETITION Nos.16696 & 16697 of 2024 (per Hon’ble Sri Justice R. Raghunandan Rao) Date: 14.07.2025 BSM