Sayed Shmin Hussain Vs the State of Andhra Pradesh

SAYED SHMIN H U SSAIN, S/O. SAYED JAKER HUSSAIN, AGED ABOUT 35 YEARS R/O. CHADANPATTI VILLAGE, C H ANDANPATTI POST, ASHOK P A PER MILL, DARBHANGA DIST R ICT, BIHAR - 846002

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...PETITIONER

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AND

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THE STATE OF ANDHRA PRADESH, REPRESE N TED BY ITS PRINCIPAL SECR E TARY DEPARTMENT OF HOME, S ECRETARIAT, VELGAPUDI, AMR A VATHI, GUNTUR DISTRICT, ANDHRA PRADESH.

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THE DIRECTOR GENERAL OF POLICE, STATE OF ANDHRA PRADESH, MANG A LAGIRI, GUNTUR DISTRICT.

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THE SUPERINTE N DENT OF POLICE, ANANTAP U R DISTRICT, ANDHRA PRADES H .

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THE STATION H O USE OFFICER, GUNTAKAL 1 TOWN POLICE STATION ANANT A PUR DISTRICT, ANDHRA PRADE S H.

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SHEIKH PEER BA S HA, S/O. NOT KNOWN, AGED AB O UT 55 YEARS, R/O. 11/39/7/8, A NTHONY STREET, GUNTAKAL, ANANTAPUR DISTRICT, ANDH R A PRADESH.

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...RESPONDENT(S):

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2

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CMR,J & GTK,J W.P.No.35329 of 2025

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ or order or direction more particularly one in the nature of Writ of Habeas Corpus directing the respondents to produce Syed Mohammad Hussain, S/o. Sayed Shmin Hussain, Aged about 5 years, currently residing at R/o. 11/39/7/8, Anthony Street, Guntakal, Anantapur District, Andhra Pradesh, being my minor son, who is in the custody of respondents , before this Honourable Court by declaring the detention to be illegal and release forthwith and pass

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Counsel for the Petitioner:

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1.RAVITEJA PADIRI

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Counsel for the Respondent(S):

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1.THANJAVURU VENKATA SUMAN

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2.THE ADVOCATE GENERAL

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CMR,J & GTK,J W.P.No.35329 of 2025

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The Court made the following:

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ORDER: (Per Hon’ble Sri Justice Cheekati Manavendranath Roy)

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This writ petition for Habeas Corpus under Article 226 of Constitution of India has been filed by the petitioner, seeking direction to the respondents to produce the minor child by name Syed Mohammad Hussain, aged about five years, before the Court and to give his custody to the petitioner.

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Heard Mr. Ravi Teja Padiri, learned counsel for the petitioner, learned Assistant Government Pleader appearing for the official respondent Nos.1 to 4 and Mr. C.Raghu, learned Senior Counsel appearing for the unofficial respondent No.5.

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The petitioner is the father of the minor child by name Syed Mohammad Hussain, who is aged about five years (hereinafter referred to as, ‘corpus’). He was born to the petitioner and his wife by name Shaik Shameem Banu during their lawful wedlock. As disputes cropped up between the spouses, they started living separately. The mother of the child has been living with her parents along with the minor child. The 5^th respondent is the father of Shaik Shameem Banu. After they started to leave separately, Shaik Shameem Banu contracted a second marriage and she married another person. Though there is a controversy in this regard, as the petitioner, who is the husband, contends that without dissolution of their marriage that she contracted a second marriage, the 5^th respondent contends that after dissolution of their marriage, that she contracted a second marriage. As it is not much relevant in the context, this Court is not examining the said fact, whether she contracted the second marriage after the dissolution of her marriage with the petitioner or not. But the hard fact that remains established, as admitted by both parties, is that she contracted a second marriage, after she started living separately with the petitioner. However, unfortunately, she committed suicide after her second marriage and met with an unnatural death on 06.08.2025. As on the date of her death, the corpus was with his mother, living with the 5^th respondent, who

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CMR,J & GTK,J W.P.No.35329 of 2025

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is the maternal grandfather. After her death, he continued to stay along with the 5^th respondent.

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Now the petitioner, who is the father of the corpus, has filed this writ petition, claiming for the custody of the child, stating that after the death of the mother of the child that the 5^th respondent is not giving his custody to the petitioner, who is the father and natural guardian of the corpus. Therefore, he has filed the writ petition, seeking the aforesaid relief.

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The 5^th respondent has filed his counter. It is pleaded that the petitioner abandoned the company of his wife and the child about four and half years back, prior to the death of his wife and since then, his wife and the corpus are taking shelter in the house of the 5^th respondent and the petitioner did not care for the welfare of the child and even after the death of his wife, the petitioner did not take care of the welfare of the child and it is the 5^th respondent who has been taking care of the child and he is providing education to him and the corpus is now studying UKG in Guntakal of Anantapur District. Therefore, it is contended that the child is not illegally confined or detained by the 5^th respondent and he continued to be in the custody of the 5^th respondent, after the death of his mother and as such, this writ petition for Habeas Corpus is not maintainable.

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Admittedly, the petitioner is the father and natural guardian of the corpus, who is minor, now, aged about five years. It is not in dispute that both the petitioner and his wife were living separately prior to the death of the mother of the corpus. As disputes cropped up between them, they are staying along with the 5^th respondent. Admittedly, the mother of the corpus committed suicide and met with an unnatural death on 06.08.2025. After her death, the corpus continued to be in the custody of the 5^th respondent. It is alleged by the petitioner that he made efforts to take custody of the child after the death of his mother and the 5^th respondent did not allow him to take custody of his child and a report with the police was also lodged in this regard and after all his

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CMR,J & GTK,J W.P.No.35329 of 2025

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efforts did not fructify to get the custody of the child that he has to take recourse to the legal proceedings by way of filing this writ petition, seeking custody of the child.

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As noticed supra , while narrating pleadings in the counter filed by the 5^th respondent, this writ petition is mainly opposed by the 5^th respondent on the ground that when the child was not illegally confined or detained by the 5^th respondent, the writ petition for Habeas Corpus is not maintainable. In fact, learned Senior Counsel for the 5^th respondent also vehemently contended that when the child was not illegally confined or detained, the writ petition for Habeas Corpus is not maintainable. In support of his contention, he relied on judgment of this Court rendered in writ petition No.28554 of 2025, wherein, this Court held that as the child was not illegally confined or detained by the paternal grandparents that the writ petition is not maintainable and the writ petitioner therein, who is the mother has to pursue her legal remedy in the appropriate forum. We have gone through the facts of the case of the said writ petition. That was a case, where after the death of the husband, the mother has contracted a second marriage with another person and she has been living with him. Therefore, in the said facts and circumstances of the case, this Court held that it is safe to keep the child in the custody of her paternal grandparents, as the mother contracted a second marriage and living with her second husband. Therefore, the facts of the said case are distinguishable and stand on a different footing. In the said facts and circumstances of the case, this Court held that the custody of the child would be safe, if she is in the care and custody of the paternal grandparents.

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In child custody matters, the legal position, whether a writ of Habeas Corpus is maintainable or not, irrespective of the fact whether the child was illegally confined or detained or not, is not res integra and has been well

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CMR,J & GTK,J W.P.No.35329 of 2025

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settled. In Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and others¹ , the apex Court, at para No.14 of the judgment, held as follows:

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“ 14. writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person, who, according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.”

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Thus, from the law enunciated by the apex Court, in the above cited judgment, the legal position is very clear that as regards the custody of a minor child is concerned when the child is in the custody of a person, who is not legally entitled to his custody, his custody is to be treated as equivalent to illegal detention and a writ of Habeas Corpus is maintainable in appropriate cases. Para No.21 of the said judgment is relevant in the context. It is held as follows:

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“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 1½ 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. ”

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1 (2019) 7 SCC 42

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CMR,J & GTK,J W.P.No.35329 of 2025

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Therefore, in the instant case, as noticed supra , admittedly the petitioner is the father and natural guardian of the minor child. His mother is no more and she met with an unnatural death, after contracting a second marriage. So, while considering the welfare of the child, which is a point for paramount consideration in child custody matters, we deem it appropriate to give the custody of the child to the petitioner, who is the father and natural guardian. Admittedly, the petitioner is an employee working as a clerk in a college in Lucknow and earning Rs.20,000/- per month. Therefore, he is an employee and an earning member, who is capable of taking care of the welfare of the minor child. The 5^th respondent is an old man and he is a retired employee. Earlier, he only worked as a driver. As per the submissions made by learned Senior Counsel for the 5^th respondent, he is now drawing only a pension of Rs.6,000/- per month. His wife is an employee. Therefore, when he is an old man and a retired employee and drawing only paltry amount of Rs.6,000/- per month towards pension, it is difficult for him to take care of the welfare of the minor child, including his education. Although, learned Senior Counsel for the 5^th respondent contended that the 5^th respondent is ready to deposit a sum of Rs.30 lakhs in the name of the minor child, which is sufficient to take care of the welfare of the child and the second daughter of the 5^th respondent is residing with him and she can take care of the child, it is not a valid ground to deprive the petitioner, who is the father and natural guardian, of the custody of his son, who is a minor.

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Learned counsel for the petitioner contended that even though the petitioner is an employee that his parents are residing with him and they will take care of the minor child during his absence in the house when he has to attend to his duties as an employee in the college. The same is also pleaded in the writ petition.

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Therefore, in the said facts and circumstances of the case, we deem it appropriate to give the custody of the minor child to the petitioner, who is his father and natural guardian, as he is legally entitled to his custody.

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CMR,J & GTK,J W.P.No.35329 of 2025

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Therefore, the Writ Petition is allowed, directing the 5^th respondent to give the custody of the minor child by name Syed Mohammad Hussain to the petitioner, who is the father and natural guardian. However, as we are in the month of March and as it is stated that the corpus is now studying UKG and as there may be examinations at the end of this academic year, the custody of the child shall be with the 5^th respondent till the examinations of the minor child are completed. The 5^th respondent shall deliver the custody of the child to the petitioner on or before 30.04.2026. If the 5^th respondent fails to give the custody of the minor child to the petitioner by 30.04.2026, the 4^th respondentStation House Officer of Guntakal I Town Police Station shall take the custody of the child from the 5^th respondent on 01.05.2026 and give his custody to the petitioner. Learned Senior Counsel for the 5^th respondent submits that liberty may be granted to the 5^th respondent to pursue his remedy relating to custody of the child before the appropriate forum. Liberty, as prayed for, is granted. If at all the 5^th respondent is so entitled and if he files any such application in the appropriate forum, seeking custody of the child under the Guardians and Wards Act, 1890, the concerned Court shall decide the petition on its own merits without being carried away by any of the observations made incidentally in this writ petition by this Court. There shall be no order as to costs.

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As a sequel, Interlocutory Applications pending, if any, shall stand closed.

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________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

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_____________________________ JUSTICE TUHIN KUMAR GEDELA

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Date: 09.03.2026 MDP

Sayed Shmin Hussain v. the State of Andhra Pradesh

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Sayed Shmin Hussain v. the State of Andhra Pradesh

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