IMPORTANT POINT
A writ of Habeas Corpus is maintainable in child custody cases where illegal detention is established, prioritizing the child's welfare over parental claims.

ORDER :

(R. Raghunandan Rao, J.)

Heard V. Surendra Reddy, learned counsel for the Petitioner and Sri P. Gangi Rami Reddy, learned counsel for respondent No.6.

2. The petitioner herein is the mother of the boy, who is said to have been illegally detained by the 6th respondent, who is the father of the boy. The case of the petitioner is that the petitioner and the 6th 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.

3. The petitioner contends that the 6th 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 showing the 6th 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 treated very roughly by the 6th respondent after which the petitioner, having realised that there was every danger of the petitioner losing custody of the child, had approached this Court, by way of the present writ for Habeas Corpus.

4. The petitioner has also alleged that the 4th respondent, who is the inspector of Police, Nellore Rural Police Station, was siding with the 6th 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.

6. The petitioner contends that the 6th 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 contend that the 6th respondent, is not in a position to take care of the boy.

7. The 6th respondent has filed a counter affidavit in which it is stated that the boy is in the custody of the 6th respondent who is his father and as such the custody of the father cannot be treated as illegal custody for which a writ of Habeas Corpus can be issued. The 6th respondent would also contend that the complaint filed by the petitioner under section 498-A of I.P.C is a false complaint.

8. The 6th respondent contends that his son is with his father and himself and has been admitted in L.K.G in St. Joseph’s English Medium High School and he is going to the school and that the allegation that the 6th 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 his son at Rainbow Children’s Hospital at Hyderabad. The 6th 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 lo