THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.11685 of 2009 Date: 25.09.2009 Between: Dr. Shaik Ali Hyder … Petitioner And The Commissioner of Police, Hyderabad, Basheerbagh, Hyderabad and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.11685 of 2009 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R. Varma) Heard Dr. P.Bhaskara Mohan, learned counsel appearing for the petitioner as well as learned Assistant Government Pleader representing the learned Advocate General appearing for respondent Nos.1 and 2, and also Sri M.A.K.Mukheed, learned counsel appearing for respondent Nos.3 to 7. 2. This Writ of Habeas Corpus is filed by the petitioner seeking to direct respondent Nos.1, 2, 5, 6 and 7 to produce respondent Nos.3 and 4, namely Mrs. S.M. Taskin and Shaik Fahad Ali, who are wife and son, respectively, of the petitioner before this Court and handover their custody to him, forthwith. 3. It is the case of the petitioner that he got married the 3rd respondent on 16.8.2001 as per the Muslim rights and customs and a marriage certificate bearing No.67426/209, dated 16.8.2001, was also issued by A.P. State Wakf Board, Hyderabad. After the marriage, both of them lived together at Plot No.146, Road No.14, Banjara Hills, Hyderabad and they were blessed with a male child, namely Shaik Fahad Ali (now changed to Mohd. Zafar Ahmed). He also stated that the 3rd respondent-wife was very proudish with superiority complex, being the daughter of respondent No.5, who is most influential financially and politically and, therefore, she used to pick up quarrels on trivial issues and never used to owe responsibility of matrimonial life. He made several other allegations against the 3rd respondent-wife, which are not worth mentioning. It is further averred that taking advantage of his father and brother, who are respondent Nos.5 and 6 of his wife, respectively, started neglecting him. It is further alleged that respondent Nos.5 and 6 threatened him with dire consequences stating that if he claims the custody of his child and also obtained his signature on a blank paper. 4. It is his further serious averment that led to filing of this writ petition seeking Habeas Corpus that he went to United States and after coming back to India, he came to know that his wife and son were not living with respondent Nos.5 and 6 and his enquiries revealed that respondent Nos.5 and 6 forcibly performed the second marriage of his wife with the 7th respondent and since then his wife has been in the wrongful custody of respondent Nos.5, 6 and 7. Therefore, he seeks the custody of respondent Nos.3 and 4, who are his wife and son, respectively. 5. A counter affidavit has been filed by the Inspector of Police, Banjara Hills, Hyderabad, who is the 2nd respondent herein, stating that his enquiries revealed that the petitioner settled the matter amicably with his wife and also pronounced divorce (Talaq) on 31.7.2005 and the custody of the minor boy was with the 3rd respondent, who is alleged detenu No.1. It is further stated that the 3rd respondent had subsequently married to the 7th respondent on 27.7.2006 as per Muslim rights and customs and has been staying along with her son i.e., the child born through the petitioner, who is respondent No.4. Respondent Nos.3 to 7 also filed a counter affidavit, denying the averments made by the petitioner. 6. However, in the reply affidavit, all the counter averments were denied by the petitioner. 7. Dr. P.Bhaskara Mohan, learned counsel for the petitioner submits that there is a life threat to the petitioner in the hands of respondent Nos.5 and 6 and what all the petitioner requires is the presence of respondent Nos.3 and 4. 8. At the outset, in view of the facts stated by the 2nd respondent police and the revelations made therein, we are of the view that the petitioner ought to have approached the police ventilating his grievance by way of making a complaint against the persons from whom he has life threat or he ought to have approached the competent Court of law seeking appropriate relief as is permissible under law. 9. However, since he has been making severe comments against the conduct of respondent Nos.5 and 6, who are father and brother of his wife, respectively, and also asserting that the 3rd respondent-wife did not divorce him and he had been deprived of the association of his wife and child, we felt it appropriate to examine the 3rd respondent, in camera. Accordingly, this Court directed the learned Assistant Government to produce respondent No.3 along with the child before this Court. 10. As per the directions of this Court, the 3rd respondent along with the child i.e., respondent No.4 are present before this Court today and we have examined her in camera. Of course, the 7th respondent, to whom the 3rd respondent married after her divorce with the petitioner, is also present before this Court. Respondent No.6 is also present before this Court. 11. Upon being questioned, the 3rd respondent stated that the petitioner had already obtained divorce (Talaq) from her and as a consequence thereof, she married the 7th respondent and the 7th respondent also acknowledges the said fact. 12. As a measure of caution, we called upon the petitioner to identify the 3rd respondent. Accordingly, the petitioner is present before this Court and identified the 3rd respondent as his wife. 13. Therefore, there is no controversy with regard to the fact to the limited extent that the petitioner and the 3rd respondent were husband and wife some time back. The fact regarding divorce, which was denied by the petitioner, is to be established by the petitioner in a competent Court of law, since the said averment had been vehemently opposed by the 3rd respondent and also stated that she married to the 7th respondent and also blessed with a child through him. In other words, the burden is heavily casts on the petitioner to establish all the averments and the disputed questions of fact raised in the writ petition. 14. Prima-facie, we are of the view that the petitioner, having the knowledge that the 3rd respondent was already married to the 7th respondent and also begot a child through him, has been trying to take advantage of the situation and for the reasons best known to him, seeks custody of respondent Nos.3 and 4. We are of the further view that the conduct of the petitioner, particularly when he was making assertive comments through his counsel that he is expecting danger to his wife and child at the hands of respondent Nos.5 to 7, we were compelled to direct the official respondents to produce respondent Nos.3 and 4 before this Court, inspite of the fact that the 3rd respondent is a pardanashin lady. This Court believes in keeping the dignity and decency of a pardanashin lady and because of the aggressive apprehension expressed by the petitioner beyond proportion, we called upon the official respondents to produce respondent No.3 along with the child. Otherwise, absolutely we do not have any reason to interfere in matters like the present one. In a way, prima-facie, we are convinced that the conduct of the petitioner is not convincing and we do not find any reasonable responsibility in making such averments and that he has been trying to make use of this Court as a platform for his personal ends, which are otherwise expected to be got decided elsewhere, but certainly, not by way of filing a Writ of Habeas Corpus. 15. At this stage, Dr. P.Bhaskara Mohan, learned counsel appearing for the petitioner submits that atleast the custody of the child be given to the petitioner. Even this request also cannot be accepted by this Court, at this stage. It is for the petitioner to workout his remedies elsewhere as permissible under law. 16. For the foregoing, the writ petition is liable to be dismissed as devoid of any merit. However, for making wild allegations against the 3rd respondent and making her to incur considerable expenditure for traveling to attend the Court along with the child and other attendants, we deem it appropriate to impose costs on the petitioner. 17. In the result, the writ petition is dismissed, at the stage of admission, with costs of Rs.15,000/- (Rupees fifteen thousand only) to be paid to the 3rd respondent, within a period of six weeks from the date of receipt of a copy of this order. ________________________ JUSTICE D.S.R. VARMA _________________________ JUSTICE R.KANTHA RAO 25.09.2009. Msr THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.11685 of 2009 25.09.2009 (Msr)