Partly allowed

Afreen Unnisa v. The State of Telangana and 4 Others

Telangana HC26 Aug 2021WP/15164/2021

Case brief

AI extract

What is this about?

This writ petition under Article 226 challenged the father's detention of their minor son and claimed illegal custody. The Court directed the father to hand over the child to the mother pending disposal of the custody case filed separately by the father. The Court granted interim visitation rights to the father and mandated swift disposal of the custody application.

What did the court decide?

Direction to father to hand over the minor child to the mother; permission for father to visit on Saturdays; direction to District Judge to decide custody application within two weeks.

Afreen Unnisa Vs The State of Telangana and… — Child Custody and Guardianship | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiqlion)

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THURSDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY AND THE HON,BLE DT. JUSTICE SHAMEEM AKTHER

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wRlT PET|T|ON NO. 15164 0F 2021

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Between:

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Afreen Unnisa, D/o Syed Mubeen Ali, Aged about 32 years, Occ. Housewife, R/o H.No.3-4-144, lt4.S.Nagar, Ramagundam l,4andal, Peddapalli O,r,r]lfrr,a,Or

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AND 1. The State of Telangana, Rep by its Principal Secretary (Poll), G A D , Secretariat, Hydera bad.

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z_ The Commissioner of Police, Ramagundam Commissionerate, Peddapalli District 3. The Deputy Commissioner of Police, Ramagundam Commissionerate, Peddapalli District

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Station House Officer, Ramagundam Police Station,^Ramagundam Commissionerate, Peddapalli District

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Syed lrfan Ali, S/o Syed Zafar Ali, Aged about 28^years, Occ.^Business,R/o H.No.13-'16. Bank Wada, Chennur, Adilabad District

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...RES,ONDENTS

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Petition under Article 226 of the Constitution of^{lndia prayingthat in the} circumstances stated in the affidavit^{filed therewith, the HighCourt may be pleasedto} issue a WRIT OF HABEAS CORPUS under Article 226 of^{lhe Constitutionof lndia} declaring the action of the unofficial Respondents^{not producingthe minorSyed} Sufyan Ali, aged about 4^years, inspite of registering^{the case vide FIR No.61/2021} dated 28/05/2021 under Sec.363,^{506 IPC and not having over the minor to the} mother i.e., Petitioner herein as illegal, arbitrary,^{contraryto law and in violationof} A(icles 14 and 21 of Constitution of^{lndia and consequently directthe off icial} Respondents to^produce the^{minor boy and hand over him to the mother ie,} Petitioner herein, where the Respondent^{No.5 forcefully kidnapped the minoron} 2310512021 at about 07.00^PM.

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lA NO: 1 OF 2021

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Petition under Section 151 CPC^{prayingthat in the circumstances state d in the} affidavit filed in support of the^petition, the^{High court maybe pleased to directthe} 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 minoron} 231O5t2021 at about 07.00^{PlV, pendingdisposal of the main writ petition}

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Counsel for the Petitioner:^{SRI M. A. K. MUKHEED}

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Counsel for the Respondent^{Nos. 1 to 4: THE ADVOCATE GENERAL}

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Counsel for the Respondent^{No'S: SRI S'SURENDER REDDY}

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The Court made the following:^ORDER

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,-.-G

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THE HON'BLE SRI ]USTICE A.^{RAJASHEKER REDDY} AND THE HON'BLE DT. JUSTICE SHAMEEM AKlHER

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WRIT PETITION No.15164 OF 2021

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ORDER: (Per Hon'ble Dr. lustice Shameem Akther)

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

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".,. to issue a WRIT OF HABEAS CORPUS under Articl€r 226 of the

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Constitution of lndia declaring the action of th3 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 2L 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 heretn, where the Respondent No.5 forcefully kidnapped the minor on 23-05-2021 at abc,ut 07.OO pM and to pass such other order or orders ....,

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

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This Court, vide order, dated 16.08.2021, dirercted 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 AIi 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.

¶29

4, 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 alreged detenu is their son, who is now

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agedaboutfiVeyears.AtthetimeoftakingKhula,thereWaSfUlland final settlement,^{dated 15.05'2019,between them' wherein it was} agreed that^{if the petitioner performssecondmarriage'the alleged} detenuwouldbewithhismaternalgrandparentstillhecompletes seven^{years. It is the caseof the petitioner that in terms of the full} and final^{settlementbetween the parties, respondentNo'5-father has} visitation rights.^{Under the guise of visiting the alleged detenu'on} 23,o5,2o2tatabout7:00P.M.,respondentNo'S.fathercameto Street Power^{House, Ramagundam' and took away the alleged} detenu, even^{after filingG'W'OP No' 10 of 2019 on the file of u} Additional^{District Judge (FTC)' Mancherial'for custody of the alleged} detenu'^{Without there being any right, respondent No.5-fatherhad} detained^{him illegallY On a} taken^{awaY the allegeddetenuand} ,^{a case in CrimeNo 61 of 2021'} report lodged^{by the petitionerherein} dated^{28.05.2021,on the file of Ramagundam Police Station was} registered^{for the offences punishable under Sections363 and 506 of} IPC against^{the respondentNo'5-father and it is under investigati0n'} 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 illegallytakenaway the alleged detenufrom the} legal custody^{of the petitioner-mother and ultimately prayedto allow} the writ Petition^{as PraYed for'}

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On the^{otherhand, learnedcounselfor the respondentNo 5-} 5, that as Per^{the full andfinal} father^{filed counter and contended} No.5-father^has settlement,^{dated 16 06'2019' the} resPondent visitation^{rights to vislt the allegeddetenu twice in a month ie"on} second^{and fourth Sunday between 09:00 AM to 05:00PM' but the}

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petitioner-mother is^{not permitting the respondent No'S-father to'} visittheallegeddetenu.Therefore,therespondentNo.5-fatherfiled G.W.O.P.No.10^{of 2019 before the II AdditionalDistri :t Judge (FTC)'} Mancherial, seeking^{custodyof the alleged detenu and the same is} pending. The respondent^{No.5-father has not illega ly detainedthe} alleged detenu and the^{alleged detenu on his own ra,ill is living with} respondentNo.5-father.RespondentNo.5-fatherisentitledto custody of the alleged^{detenuand ultimately,prayeJto dismiss the} writ Petition.

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6, 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.,^{respondentNo.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.VV.O.P.

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7, The admitted facts are that the petiti lner-mother and respondent No.S-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 petitionermother that she is also living with her parents. As per Section 102(1)(a) of Mohammedan Law, the mother is enlitled for custody of the boy, who is below seven years of age. Admittedly, the alleged detenu, who is aged about five years, is with hi; mother. Without thqe being an order of the Court having comp3tence, 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,

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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} iudge (FTC), Mancherial. In^view of the^{circumstancesof the case, it} is not appropriate to express^{any opinionwith regard to the custody} 1te$V^{or permanent) of the alleged detenu, so alsovisiting} rights. The said District court^{has to take a call and determinethe} same. Since the^{alleged detenuwas removed from the custodyof} the^{petitioner-motherand in view of the full and final settlement,} dated 16.06.2019,^{in between the parties, the petitioner-motheriS} entitled for^{restoration of custodyof the alleged detenu, till the issue} with regard to the^{custody of the alleged detenu is determined in} G.W.O.P.No.1O^{of 2019 by the said District Court'}

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g, In the event^{of the respondent No.5-fatherfiling any application} for interim custody^{as well as vlsitation rights of the alleged detenuin} thesUbjectG.W.o.P.,theDistrictJudgeconcernedisdirectedt0 dispose of such^{applicationwithin a period of two (2) weeks from the} date of filing of^{such applications' Petitionerand respondentNo'5} shall cooperate^{for disposalof the said applicationswithin the} stipulated time^{and they shall not indulge in any delaytactics in} disposal of such^aPPlication'

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g.Inviewofthefactsandcircumstancesofthecase,respondent No.5-father is directed^{to hand over the allegeddetenu to the} petitioner-mother before^{the Registrar (Judicial-I)forthwithOn such} handing over, the^{Registrar (ludicial-I)is directed to prepare a note} and^place the^{samein this file, to make it a part of the record}

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Ala1(.r & Dr s]1.^j $ I)N l5 I a!.1 oi lr): I

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1O. 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 cver the alleged detenu to respondent No.5-father in an area opposite to the Mosque, situated at Ramagundam, peddapaili District, at 3:oo p.M. and coilect 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 vioration, the same wourd be viewed seriously.

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

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

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s1)/.T.TIRUMALA DEV

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ASSISTA GISTRAR

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,TRUE COPY//

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To, S ON FFICER 1. The HyderabadPrinci^{pal Secretary (poil), G.A.D., State} of Tetan Secretariat, 2 3 The Commi ssioner of police Ramagundam Com mtssioner,tte Peddapalli District Pedda palliThe De puDistrictty Commissio ner of police, Ramagundar Commlssionerate,

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1. The Com^{StationHouseOfficer,RamagundamPolice} S:ation missionerate ,Peddapalli District Ra magunda m

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5 One CC to Sri M. 67 TwoOne CC CCs to Sri to TheS Su render K. MukheedRedd y, , AdvocateAdvocate loPUClloPuct Advocate General, High

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Hyderabad. Court for the {ltate of Telangana at

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B. Two CD Co pres.^lou'rtrl 9. One Spare copy.

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I,1P

,A\B

HIGH^COURT

DATED:2610812021

ORDER

WP.No.15164^{of 2021}

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1 H E T 4 I4' q
ct-
oo 0 3 SEP 2021 c)
+
E

¶61

DISPOSING^{OF THE WRIT PETITION} WITHOUT^GOSTS

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.*"-

Afreen Unnisa v. The State of Telangana and 4 Others

Case brief

What is this about?

What did the court decide?

Afreen Unnisa v. The State of Telangana and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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