IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO AND THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION NO: 27072 OF 2024 Between: Buruga Sirisha, W/o Buraga Yesu, Aged about 24 years, Occ House Wife, R/o Pedakapavaram village, Akividu Mandal, West Godavari Andhra Pradesh. ...Petitioner AND 1. The State of Andhra Pradesh, Represented by its Principal Secretary Home Department, Secretariat, Velagapudi, Guntur District. 2. The Director General of Police, Mangalagiri, Andhra Pradesh 3. The District Collector and Magistrate, West Godavari District. 4. The Superintendent of Police, West Godavari District. 5. The Station House Officer, Bhimadole Police Station, West Godavari District. 6. S/o Late Davidu, Aged about 27 years, Occ Daily Wager lA/ Harijana Colony, Pedakapavaram, Akividu Mandal West Godavari District, Andhra Pradesh. ...Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court be pleased to issue a writ or order or direction more particularly nature of Writ of Habeas Corpus directing the respondents to produce the Sons of the petitioner named 1. Daweedu Raju (Aged 6 years) and 2. Shalem Raju (Aged 4 years), who were abducted by the 6‘^ respondent from the house of petitioners elder sister situated in Chinna Malapalli, may one in the Chettunumpadu village, Bhimadolu Mandal, which is in territorial jurisdiction of Bhimadole Police Station and handover the custody to the petitioner, j' Counsel for the Petitioner: SRI THANDAVA YOGESH Counsel for the Respondents: THE ADVOCATE GENERAL Counsel for the Respondents: SRI V.V.L.N.SARMA The Court made the following order: on 29.09.2024, before this Honourable Court 1 A APHC010517412024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3488] nTp/^y ,THE TWO THOUSAND AND TWENTY FIVE DAY OF FEBRUARY PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION NO: 27072/2024 Between: Buruga Sirisha ...PETITIONER AND The State Of Ap and Others ...RESPONDENT(S) Counsel for the Petitioner: 1.THANDAVA YOGESH Counsel for the Respondent(S): 1.THE ADVOCATE GENERAL 2.VVLNSARMA The Court made the following order: (per Hon’ble Sri Justice R. Raghunandan Rao) The petitioner and the 6‘^ respondent are husband and wife, who have two sons, aged six years and four years. The petitioner and the 6*'^ respondent who had married, on 03.09.2018, had separated and the petitioner had also filed a criminal case against the 6^^ respondent, under Section 498-A and 323 r/w 34 of I.P.C before the S.H.O, Akividu police station. After the separation on 2 A 14.10.2023, the petitioner had to find her livelihood as maintenance was not given by the 6*" respondent to her and the two sons who were with her. 2. On account of this problem, the petitioner is said to have left both her sons with her sister at Bhimadolu and she is said to have moved to Vijayawada to find work. So that she would be able to take care of the educational needs of her children, who had already been joined in a private convent in Bhimadolu. The petitioner contended that the 6*'^ respondent had then abducted both children from the residence of her sister on 29.09.2024. She further contended that the 6'" respondent had insisted that she should drop the criminal case filed against him before he would send the two children 3. back. The 6*^ respondent has filed a counter affidavit in which it is stated that though their two sons had gone away with their mother, he had been visiting them and on one such occasion, on 29.09.2024, the children refused to leave him and came away with him. The petitioner states that he did not abduct his children and they had come willfully with him. The 6*\espondent would also contend that he has already joined both the children in a school in Pedakapavaram and he is taking care of their education. Apart from this, the 6*Vespondent also stated that a divorce O.P under the Indian Divorce Act, 1869 has been filed, before the Principal District & Sessions Judge, Eluru and the same has now been numbered as Divorce O.P.No.82 of 4. 3 2024. The facts as stated herein would show that it is the admitted case on both sides that the children were with the petitioner, after separationbetween the petitioner and the 6**^ respondent. This separation was in October, 2023. For about one year, the children were not in the custody of the 6**^ respondent. It is the agreed case on both sides that on 29.09.2024, the children had been taken away by the 6*'' respondent to his residence. In the circumstances, it is difficult to believe the version of the 6^'' 5. respondent that the children simply came away with him and he had no ulterior interest in taking the children with him. In such circumstances, this Court would have to form an opinion that the children were taken away by the 6^^ respondent, in an illegal manner. The Hon’ble Supreme Court in Nirmala v. Kulwant Singh, ’'while 6. considering such cases, had held that normally courts would not interfere in such situations and would leave it open to the parties to resolve their issues before an appropriate Family Court. However, the Hon’ble Supreme Court had also observed that where custody is forcibly taken over, without the intervention of the Court, it would be appropriate to restore custody to the aggrieved parent and leave it open to the parents to sort out the question of custody before an appropriate Family Court. The relevant extracts are ; (2024) 10 see 595 : 2024 SCC OnLine SC 758 at page 601 4 This Court in Tejaswini Gaud [Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, ^ after considering the earlier cases, observed thus: (SCC p. 54, paras 19-21) 22. “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 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 determine'^ ’ \ , '(2019) 7 SCC 42 : (2019) 3 SCC (Civ) 433] 5 exercise of extraordinary jurisdiction on a petition for habeas corpus. 21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 134 years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.” 23. It can thus be seen that this Court in Tejaswini Gaud case[Tejaswini Gauds/. Shekhar Jagdish Prasad Tewari, (2019) 7 see 42 ; (2019) 3 SCC (Civ) 433] has held that the habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been held that 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. It has further been held that in child custody matters, the writ of habeas 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. I In the present case, following the said guidelines, this Writ Petition is disposed of with a direction to the 6'^ respondent to handover the children to the petitioner, within two weeks from the date of receipt of this 7. order. In the event of the 6 respondent failing to comply with this direction 6 the 5*^ respondent shall take steps to take custody of the children and hand them over to the petitioner, who is their mother. This shall not however preclude the respondent from moving the competent Court for custody of his children and none of the observations made herein shall be taken into account by the Court deciding such custody. As a temporary measure, pending any further directions of the Family/trial Court, the 6*'" respondent shall be entitled to visit the children and spend time with them every Sunday between 9 am to 12 noon. The Family/trial Court shall be free to make changes in these visitation rights, pending disposal of the main petition. 8. Accordingly, this Writ Petition is disposed of. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. Sd/- A. VENUGOPALA RAO ASSISTANT REGISTRAR //TRUE COPY// To, N OFFICER 1. The Principal Secretary, Home Department, State of Andhra Pradesh Secretariat, Velagapudi, Guntur District. 2. The Director General of Police, Mangalagiri, Andhra Pradesh. 3. The District Collector and Magistrate, West Godavari District. 4. The Superintendent of Police, West Godavari District. ^ DiSrIf Officer, Bhimadole Police Station, West Godavari 6. One CC to Sri Thandava Yogesh, Advocate [OPUC] 7. One CC to Sri V.V.L.N. Sarma, Advocate [OPUC] ^ [OIJT?^ Advocate General, High Court of Andhra Pradesh. 9. Two CD Copies SE RAM HIGH COURT DATED:21/02/2025 ORDER WP.No.27072 of 2024 ANo7j;q1 5 2 5 FEB 2C25 Cf) ^ Current Section DISPOSING OF THE WP WITHOUT COSTS