Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(AP) 881

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
U. DURGA PRASAD RAO, B.V.L.N. CHAKRAVARTHI, JJ.
Cheenu Gopi - Petitioner
Versus
The State of Andhra Pradesh - Respondent
Writ Petition No. 25607 of 2022
Decided On : 12-09-2022

Advocates:
Advocate Appeared:
For the Petitioner: Kiran Kumar Madira.

The welfare of the child is the paramount consideration in determining the custody of a minor child, and the rights of the parents under the law are not absolute.

Headnote:
HABEAS CORPUS - CUSTODY OF CHILD - WELFARE OF THE CHILD - PARAMOUNT CONSIDERATION - NATURAL GUARDIANSHIP - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - GUARDIANS AND WARDS ACT, 1890 - WRIT OF HABEAS CORPUS - MAINTAINABILITY - ILLEGAL CUSTODY - RIGHTS OF PARENTS - BEST INTEREST OF THE CHILD.
Fact of the Case:

Petitioner, the natural father of a 10-month-old child, filed a writ petition under Article 226 of the Constitution of India, seeking a writ of habeas corpus to declare the respondents' (child's maternal grandparents) custody of the child as illegal and to direct the production of the child before the court. The petitioner alleged that the respondents forcibly took away the child from his custody on August 10, 2022, and that the inaction of the police in securing the child's release was unlawful. The respondents contended that they are the natural guardians of the child and have been taking care of her since her birth, and that the petitioner has no right to the child's custody.
Finding of the Court:

The court held that the writ of habeas corpus is maintainable only if the detention of the child by the respondents is found to be illegal and without authority of law, and that the extraordinary remedy of habeas corpus can be availed in exceptional cases where the ordinary remedy provided by law is either unavailable or ineffective. The court further held that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890, as the case may be, and that there is a significant difference between an enquiry under the Guardians and Wards Act and the exercise of writ jurisdiction, which is summary in nature. The court also held that the welfare of the child is the paramount consideration in determining the custody of a minor child, and that the rights of the parents under the law are not absolute.
Issues: 1. Whether the writ of habeas corpus is maintainable in the present case, where the respondents are the natural guardians of the child and have been taking care of her since her birth? 2. Whether the petitioner has any right to the custody of the child, considering that he is the natural father? 3. What is the paramount consideration in determining the custody of a minor child?
Ratio Decidendi: 1. The writ of habeas corpus is maintainable only if the detention of the child by the respondents is found to be illegal and without authority of law. In the present case, the respondents are the natural guardians of the child and have been taking care of her since her birth. Therefore, the detention of the child by the respondents cannot be said to be illegal or without authority of law. 2. The petitioner, as the natural father of the child, has a right to the custody of the child. However, this right is not absolute and is subject to the welfare of the child. In the present case, the court found that the welfare of the child would be best served by remaining in the custody of the respondents, who have been taking care of her since her birth and have a close bond with her. 3. The paramount consideration in determining the custody of a minor child is the welfare of the child. The rights of the parents under the law are not absolute and must be balanced against the welfare of the child.
Final Decision: The court dismissed the writ petition, holding that the petitioner failed to establish that the custody of the child held by the respondents was unlawful, illegal, or wrongful. The court also held that the respondents are capable of looking after the child's welfare. However, the court permitted the petitioner to visit the child at the respondents' residence every Sunday between 10:00 AM and 04:00 PM till he approaches a Competent Civil Court and establishes his right to the custody of the minor child.

Judgement Key Points

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ORDER :

B.V.L.N. Chakravarthi, J.

This Writ Petition is filed under Article 226 of the Constitution of India. It involves a contest between Petitioner and Respondents 6 & 7 over the custody of child born out of wedlock between the petitioner and the deceased daughter of respondents No.6 & 7. The respondents 1 to 5 are State.

2. The petitioner/father has prayed for the following relief :

(a) Issue a writ, order or direction more particularly one in the nature of the writ of Habeas Corpus declaring that the action of the respondents No.6 & 7 in forcibly detaining the petitioner’s daughter named Cheenu Geethanshi aged 10 months in their custody from 10.08.2022 as illegal,

(b) The inaction of the respondent No.5 in securing the release of the child as unlawful,

(c) Direct the 5th respondent to produce the said child before this Court and set her free by handing over to the petitioner/natural father and guardian and;

(d) Pass such other order or orders as this Court deems fit and proper in the circumstances of the case.

3. The summary of the case of the petitioner/father is as under:

(i) The petitioner’s marriage was solemnized with Kokkiligadda Mounika elder daughter of the respondents Nos.6 & 7 in the year 2020 in accordance with the Hindu Rites and Customs prevailing in the society and that the petitioner’s wife gave birth to the female child on 15.10.2021 in a private hospital at Guntur, and the child was named as Cheenu Geethanshi and that the petitioner and his wife were living happily and rising the child with love and affection.

(ii) The wife of the petitioner fell sick in the year 2022 and was diagnosed with Acute Myeloid Leukemia, and she died on 03.04.2022 at Vijayawada in HCG Cancer Hospital, while undergoing the treatment and thereafter the petitioner has been taking care of the child with the help of his mother and father and the petitioner’s wife informed to the petitioner while she was alive that the death-cum-monetary benefits of the petitioner’s wife are in process for disbursing to the successor and instructed the petitioner to claim the same by submitting all the relevant documents and accordingly the petitioner applied for the family member certificate from the revenue authorities, and he alone was appointed as nominee in the service records of the petitioner’s wife and this was known to the respondents 6 & 7, and they started harassing the petitioner to share the amounts and causing obstructions to the petitioner from receiving the amounts.

(iii) The respondents 6 & 7 started threatening the petitioner that if he fails to provide the benefits to them, they would forcibly take away the child and keep her in their illegal custody. On 10.08.2022 in between 9:00 AM to 10:30 AM they along with some anti-social elements entered the petitioner’s house, threatened the petitioner/parents with deadly weapons and the respondent No.7 took the child into her hands and pushed away the petitioner’s parents, and they received minor injuries.

(iv) The petitioner and his parents went to the Adavuladeevi Police Station and complained to 5th respondent who is the Station House Officer, but 5th respondent did not initiate any steps succumbing to the political pressures and allowed their illegal acts with impunity. The 5th respondent did not take any action so far, and the presence of the petitioner and his parents can be easily traced from the surveillance records available in the police station, and further, the conversation captured in the cell phone.

(v) The petitioner in order to look after the welfare of the child did not go for 2nd marriage after death of wife. He has been providing all the requirements to the child and planning to give a beautiful life to child. The petitioner is the natural father of the child and having every right on the child. The respondents 6 & 7 have no right and take the child and keep the child in their custody which tantamounts to an illegal act and an offence under law.

(vi) The petitioner was taking care of c