Partly allowed

Gade Kumaraswamy Reddy v. the State of Andhra Pradesh

Andhra Pradesh HC20 Mar 2023WP/40610/2022

Case brief

AI extract

What is this about?

A petitioner filed a habeas corpus petition seeking custody of his minor wife from a State welfare home. The High Court held that the welfare of the minor is the paramount consideration, dismissing the plea for immediate release and custody to the petitioner, while granting limited visitation rights to the grandfather.

What did the court decide?

The minor girl to remain in the custody of the 5th respondent State Home; the 5th respondent to permit the 6th respondent to visit her twice a month.

Gade Kumaraswamy Reddy Vs the State of… — Child Custody and Guardianship | Andhra Pradesh HC (2023)

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HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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HON‟BLE MR. JUSTICE D.V.S.S.SOMAYAJULU

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AND

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HON‟BLE MR.JUSTICE V.SRINIVAS

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W.P.No.40610 of 2022

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O R D E R: (per D.V.S.S.Somayajulu, J)

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This writ petition is filed by the petitioner seeking custody of his wife and for following prayer:

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‘…..to issue a Writ of Habeas Corpus by calling for all the records pertaining to the Detention of the Petitioners Wife Smt. Jonnala Bhavana D/o Late Sudhakar Reddy by the 3rd and 4th Respondents now in the custody of the 5th Respondent as arbitrary illegal and unconstitutional and direct the respondents to produce the detenue i e the petitioners wife namely Smt Jonnala Bhavana D/o Late Sudhakar Reddy currently detained in the Custody of the 5th Respondent before this Honble Court and hand over her custody/set her at liberty and pass…’

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This Court has heard Sri Srikanth Reddy Ambati learned counsel for the petitioner, Advocate General for respondent Nos.1, to 3, Government Pleader for 4^th

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respondent and also the Superintendent of respondent Nos.5 and 6.

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The admitted facts in this case are that one J.Bhavna, who is said to be the wife of the writ petitioner, is a minor. Her parents have died. Therefore, she was in the custody of her grandfather the 6^th respondent. She was given in the marriage to the writ petitioner on 12.05.2022. However, it is submitted that on 14.05.2022, the respondent Nos.4 and 5 had taken the said J.Bhavana and kept her in the custody of the 5^th respondent. Questioning the same, this habeas corpus petition is filed.

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Learned counsel for the petitioner argued the matter at length. According to him, a marriage with a minor is merely voidable and has to be declared by a decree of nullity by a competent Court of law. He States that even according to Section 3 of the A.P.Prohibition of Child Marriage Act, 2006, such a marriage is voidable and it is subsisting till it is annulled by a competent Court. He relies upon a judgment reported in T.Sivakumar v. The Inspector of Police, Thiruvallur Town Police Station, Thiruvallur Disrict and

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others¹ . Further, relying upon a Division Bench judgment reported in Makemalla Sailoo v. Superintendent of Police, Nalgonda District and others² , he submits that even though the marriage is punishable under the Child Marriage Restraint Act, it is still a valid marriage and is not per se void ab initio . Relying up on section 6(c) of the Hindu Minority and Guardianship Act, 1956, learned counsel argued that even if a minor girl is married, his natural guardian is husband alone. Learned counsel submits that the petitioner has immense love and affection for J.Bhavana and that he is willing to look after her with love and affection.

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Learned Government Pleader for Social Welfare argued the matter on behalf of respondent Nos.4 and 5. Learned counsel submits that the wife is a minor and therefore, the custody of the child is with the 5^th respondent. It is also submitted that due care is being taken of the minor. It is also submitted that the marriage was performed when J.Bhavana was less than 15 years, but her Aadhar Card was showing her age as 21 years. The other details secured clearly show that

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1 2011 (5) CTC 689

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2 2006 (1) APLJ 447

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J.Bhavana is a minor. Learned Government Pleader argued the matter at length and submitted that the interest of the minor should be paramount and the application should not be allowed. He states that there are also allegations made that the child was in fact sold for a considerable sum of money and given in the marriage to the petitioner.

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Considering the issues raised, this Court by its order dated 28.02.2023 directed the girl J.Bhavana and the unofficial respondents to be present.

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In camera proceedings were held by the Bench. The 6^th respondent agreed that he is aged and he does not have a steady avocation. He said that he would look after the girl by working as an agricultural labourer or as a watchman etc. On questioning about the security etc., of the girl, he initially said he has no objection if she is safely kept anywhere, but later he stated that he wants to take the girl and look after her. His stand was ambivalent and wavering.

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The 5^th respondent was represented by the Warden. She stated that J.Bhavana is looked after well and that there are no complaints. It is stated that J.Bhavana could stay and enjoy the protection of the House as long as she wants.

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Learned Government Pleader for Social Welfare also supported this and stated that J.Bhavana would be looked after as long as she desires.

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The Bench also called J.Bhavana for in camera proceeding and talked to her. Initially, she was hesitating to talk to the Bench, but later she gradually opened up and agreed that in view of young age, she needs to get an education to look after herself. She also agreed that the 6^th respondent is aged and also does not have a steady income per se . She stated that she is being looked after well in the 5^th respondent Home and that she has adequate security also. She only wanted some visiting rights from the 6^th respondent, since she is alone and all her other family members have expired.

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One other argument advanced by Sri Srikanth Reddy is that the petitioner is also willing to give monetary support etc., to J.Bhavana. However, on enquiry she did not appear very receptive to this idea.

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COURT: The law on the issue is very well settled, particularly as J.Bhavana is a minor. It is her welfare alone that should be the paramount consideration for this Court.

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Paras 39 and 52 of Nil Ratan Kundu v. Abhijit

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Kundu³ , are as follows:

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„39. The principles in relation to custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force.’

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52… A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child……’

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In addition, section 13 of the Hindu Minority and Guardianship Act, 1956 is reproduced here.

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Welfare of minor to be paramount consideration.—(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

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(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

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3 (2008) 9 SCC 413

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Section 13 of the Hindu Minority and Guardianship Act, 1956 is thus very clear and admits of no doubt. Only one interpretation is possible in view of the clear language in section 13(1) and 13 (2).

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The fact remains that J.Bhavana was given in marriage to the petitioner but she did not appear very keen to join the company of the writ petitioner at this stage. It is also a fact that she is a minor child. Therefore, exposing her to marriage and other issues related thereto including conjugal rights may not be in the interest of the minor. In the opinion of this Court, she does not appear to be psychologically or physically ready for the same. It is also clear from the in camera proceedings that she is being looked after well in the 5^th respondent Home and that some attempt is being made for her education also. Since the State is willing to support her and as there are no complaints of any ill-treatment etc., this Court is of the opinion that the girl J.Bhavana should be left in the care and custody of the State and the 5^th respondent, till she attains the age of majority and also acquires the necessary mental makeup to take decisions on her own.

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One of the issues raised by J.Bhavana is that as her family members have expired, the 6^th respondent may be permitted to visit her occasionally. In the opinion of this Court, the same is a genuine request. Therefore, the 5^th respondent shall permit the 6^th respondent to visit J.Bhavana in the Home only at least twice a month. It is made clear that she should not be allowed to be taken by the 6^th respondent or by the petitioner till she attains the majority and is in a position to accept the true state of things. Her State of mind and mental make-up must be assessed after she becomes a major and she is allowed or permitted to join the petitioner or respondent No.6.

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With these observations, the writ petition is disposed of. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.

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________________________ D.V.S.S.SOMAYAJULU,J

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V.SRINIVAS,J

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Date: 20.03.2023 KLP

Gade Kumaraswamy Reddy v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Gade Kumaraswamy Reddy v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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