Afreen Unnisa vs State Of Telangana And 4 Others

This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, wherein, the following prayer is made:

"... to issue a WRIT OF HABEAS CORPUS under Article 226 of the Constitution of India declaring the action of the unofficial Respondents not producing the minor Syed Sufyan Ali, aged about 4 years, inspite of registering the case vide FIR No.61/2021 dated 28-05-2021 under Secs.363 & 506 IPC and not having over the minor to the mother i.e., Petitioner herein as illegal, arbitrary, contrary to law and in violation of Articles 14 and 21 of Constitution of India and consequently direct the official Respondents to produce the minor boy and hand over him to the mother i.e., Petitioner herein, where the Respondent No.5 forcefully kidnapped the minor on 23-05-2021 at about 07.00 PM and to pass such other order or orders ..."

We have heard the submissions of the learned counsel for the petitioner-mother, learned counsel for respondent No.5-father and perused the record.

This Court, vide order, dated 16.08.2021, directed respondent No.5-father to produce the alleged detenu-Syed Sufyan Ali, a minor child, before this Court. Pursuant to the same, the alleged detenu-Syed Sufyan Ali has been produced before this Court today physically. This Court is pleased to interact with the alleged detenu and observe him, who is aged about five years.

The case and contentions of the petitioner-mother are that the petitioner and respondent No.5 were wife and husband. They took Khula on 15.06.2019 and the alleged detenu is their son, who is now aged about five years. At the time of taking Khula, there was full and final settlement, dated 16.06.2019, between them, wherein it was agreed that if the petitioner performs second marriage, the alleged detenu would be with his maternal grandparents till he completes seven years. It is the case of the petitioner that in terms of the full and final settlement between the parties, respondent No.5-father has visitation rights. Under the guise of visiting the alleged detenu, on 23.05.2021 at about 7:00 P.M., respondent No.5-father came to Street Power House, Ramagundam, and took away the alleged detenu, even after filing G.W.O.P.No.10 of 2019 on the file of II Additional District Judge (FTC), Mancherial, for custody of the alleged detenu. Without there being any right, respondent No.5-father had taken away the alleged detenu and detained him illegally. On a report lodged by the petitioner herein, a case in Crime No.61 of 2021, dated 28.05.2021, on the file of Ramagundam Police Station was registered for the offences punishable under Sections 363 and 506 of IPC against the respondent No.5-father and it is under investigation. As per Section 102(1)(a) of Mohammedan Law, mother is entitled for custody of the boy, who is below seven years of age. Respondent No.5-father had illegally taken away the alleged detenu from the legal custody of the petitioner-mother and ultimately prayed to allow the writ petition as prayed for.

On the other hand, learned counsel for the respondent No.5-father filed counter and contended that as per the full and final settlement, dated 16.06.2019, the respondent No.5-father has visitation rights to visit the alleged detenu twice in a month i.e., on second and fourth Sunday between 09:00 AM to 05:00 PM, but the petitioner-mother is not permitting the respondent No.5-father to visit the alleged detenu. Therefore, the respondent No.5-father filed G.W.O.P.No.10 of 2019 before the II Additional District Judge (FTC), Mancherial, seeking custody of the alleged detenu and the same is pending. The respondent No.5-father has not illegally detained the alleged detenu and the alleged detenu on his own will is living with respondent No.5-father. Respondent No.5-father is entitled to custody of the alleged detenu and ultimately, prayed to dismiss the Writ Petition.

It is contended by the learned counsel for respondent No.5-father that in the interest of alleged detenu, he is required to be in the custody of his father i.e., respondent No.5 and that respondent No.5 intends to move applications for interim custody as well as visitation rights of the alleged detenu in the said G.W.O.P.

The admitted facts are that the petitioner-mother and respondent No.5-father have taken Khula and both of them performed second marriage and living in their respective houses. In terms of the full and final settlement, dated 16.06.2019, in between the parties, the alleged detenu is living with his maternal grandparents at Ramagundam. It is the case of the petitioner-mother that she is also living with her parents. As per Section 102(1)(a) of Mohammedan Law, the mother is entitled for custody of the boy, who is below seven years of age. Admittedly, the alleged detenu, who is aged about five years, is with his mother. Without there being an order of the Court having competence, the alleged detenu was removed from the custody of the petitioner-mother. The disputes, inter se, with regard to the custody of the alleged detenu, including visitation rights etc., are required to be determined in G.W.O.P.No.10 of 2019 pending on the file of II Additional District Judge (FTC), Mancherial. In view of the circumstances of the case, it is not appropriate to express any opinion with regard to the custody (temporary or permanent) of the alleged detenu, so also visiting rights. The said District Court has to take a call and determine the same. Since the alleged detenu was removed from the custody of the petitioner-mother and in view of the full and final settlement, dated 16.06.2019, in between the parties, the petitioner-mother is entitled for restoration of custody of the alleged detenu, till the issue with regard to the custody of the alleged detenu is determined in G.W.O.P.No.10 of 2019 by the said District Court.

In the event of the respondent No.5-father filing any application for interim custody as well as visitation rights of the alleged detenu in the subject G.W.O.P., the District Judge concerned is directed to dispose of such application within a period of two (2) weeks from the date of filing of such applications. Petitioner and respondent No.5 shall cooperate for disposal of the said applications within the stipulated time and they shall not indulge in any delay tactics in disposal of such application.

In view of the facts and circumstances of the case, respondent No.5-father is directed to hand over the alleged detenu to the petitioner-mother before the Registrar (Judicial-I) forthwith. On such handing over, the Registrar (Judicial-I) is directed to prepare a note and place the same in this file, to make it a part of the record.

Further, keeping in view the interest of the alleged detenu and for his healthy growth etc., it would be appropriate to permit the respondent No.5-father to visit the alleged detenu on every Saturday from 03:00 PM to 06:00 PM till the disposal of application that would be filed by him seeking interim custody or visitation rights of the alleged detenu, as the case may be. The petitioner-mother (either personally or through her blood relation) shall hand over the alleged detenu to respondent No.5-father in an area opposite to the Mosque, situated at Ramagundam, Peddapalli District, at 3:00 P.M. and collect him back at 6:00 P.M. Both the parties shall not violate the interim arrangement made by this Court, in any manner whatsoever. It is needless to state that if there is any violation, the same would be viewed seriously.

With the above observations and directions, the Writ Petition is disposed of.

Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed. There shall be no order as to costs.