THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.4754 of 2009 Date of Order: 17-09-2010 Between: Ginjupalli Ramesh ..Petitioner and 1. The government of A.P. rep. By its Prl. Secretary to Government, Home Department, Secretariat, Hyderabad and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.4754 of 2009 Order : (Per Honourable Sri Justice A.Gopal Reddy) This writ petition is filed for issuance of Habeas Corpus directing the respondents 1 and 2 to produce the minor son of the petitioner by name Master Ginjupalli Udayan before the Court in the interest of justice. 2. The petitioner married one K.Neelima, daughter of the 3rd respondent on 27-10-2004 at Vijayawada and after marriage they lived in West Maredpally, Secunderabad till 14-04-2006. During the wedlock, petitioner’s wife gave birth to a male child, namely, Ginjupalli Udayan on 23-09-2005. On petitioner leaving to United States of America (USA) in connection with employment, he processed dependant visa for his wife and minor child, but she did not want to join the petitioner’s company at USA. In order to live with his wife and minor child, the petitioner left the employment at USA in March, 2008, but she refused to join his company. Thereafter, she left to United Kingdom (UK) in June, 2008 without the knowledge of the petitioner. On coming to know that she is trying to obtain Visa for the minor child, which was rejected by the British High Commissioner, he filed FCOP No.404 of 2008 before the Family Court, Secunderabad for divorce and when the said OP is pending, the wife of the petitioner lodged a complaint under Section 498A IPC on her coming to India. When she left to UK, the custody of the minor child was taken by the petitioner in July, 2008 and admitted the child in Goutam Model School, R.T.C.X Roads, Hyderabad in Nursery class. On 02-03-2009, when the child was returning from the school along with petitioner’s sister-in-law, the respondents 3 and 4 along with some others forcibly taken away the child. On coming to know of the same, the petitioner lodged a complaint with the 2nd respondent—police, but when he went to police station, the 3rd respondent is sitting with the 2nd respondent, and refused to receive the complaint. Then Sri P.Madhusudan Rao, who is an advocate and friend of the petitioner, approached the police station. Then, the 2nd respondent received the complaint but not taken any action on the complaint for a couple of days and on the other hand forced him to withdraw the compliant by calling him every day to the police station. He came to know that the 3rd respondent is trying to take away the son of the petitioner from out of India and already obtained Visa for the child with the help of one Velaga Sivarama Dattatreya, who claims to be the friend of petitioner’s wife in UK. Therefore, he filed the present writ petition for issuance of writ of Habeas Corpus. 3. The 3rd respondent filed a counter making several allegations against cruel attitude of the petitioner and suppression of facts at the time of marriage about giving wrong date of birth and later they came to know that the petitioner studied four years engineering course in eight years. When his daughter, wife of the petitioner, got pregnancy, the petitioner forced her to get abortion but she did not agree to abort the child. The petitioner harassed his daughter both physically and mentally. From the date of birth, the child was grown up in his house under the care and custody of himself and his wife. He got joined the child in Ravindra Bharathi School, Vijayawada. As the petitioner left to USA, the wife and minor child of the petitioner stayed in his house. In June, 2008 his daughter went to UK on job basis. On 06-07-2008, the petitioner came to his house and informed that he is going to USA and he will take the child to Bazar for purchasing the article and come back within half an hour and hand over the child. Accordingly, the petitioner took away the child but did not turn back. When he contacted the petitioner on telephone, he (petitioner) informed that unless and until his daughter gives divorce, he will not handover the child and abused him in filthy language. Therefore, his daughter made a complaint to the V Town Police Station, Vijayawada. Basing on the said complainant, the police registered a case in Cr.No.447 of 2008 against the petitioner and his relatives for the offence punishable under Section 498-A IPC, which is under investigation. On 02-03-2009, his daughter went to the school in the afternoon and in the presence of sister-in-law of the petitioner she took the child; at that stage the boy expressed the harassment meted out in the hands of the petitioner. Immediately he went to Chikkadpally Police Station and informed the said fact to the police by enclosing the copy of FIR in Cr.No.447 of 2008. While going to U.K. on 04-03-2009, the daughter of 3rd respondent sent a representation to the Commissioner of Police making copies to all the concerned departments. 4. The 2nd respondent also filed a counter affidavit stating about the registration of crime and taking the minor child by his mother from Goutam Model School, R.T.C. X Roads. Since the dispute is with regard to custody of minor child between the father and mother, police cannot interfere and it is appropriate to work their remedies elsewhere in the court of law. 5. This Court suo motu by order dated 19-03-2009 impleaded the wife of the petitioner as 5th respondent and issued notice. Thereafter, the matter underwent several adjournments from 27-07- 2009 to 01-02-2010. On the said date, this Court directed the presence of the petitioner as well as 5th respondent along with minor son. On 17- 02-2010, since the 5th respondent could not be served, a direction was issued to the Registry to serve the notice on respondent No.5 through E-mail to the address furnished on17-02-2010. Later it was adjourned for the appearance of the 5th respondent. As the 5th respondent failed to comply the orders of this court dated 01-02-2010., this Court issued NBW against her on 15-04-2010, Pursuant to the said order passed by this Court, the 5th respondent present in the court along with child and filed WPMP Nos.17241 and 17242 of 2010 to set aside the order dated 15-04-2010 and to recall the NBW issued against her. The presence of the 5th respondent has been dispensed with by recalling the NBW issued against her and directed the matter to be posted for hearing on 25-08-2010. 6. We have examined the mother and child in our chambers and also conciliated between the parties in the presence of advocates on 23-08-2010 and noticed that there is no possibility of both the petitioner and his wife, 5th respondent, living together. As the petitioner made uncharitable remarks against the 5th respondent’s modesty, attributing that she is living in adulterous life, we have proceeded to hear the writ petition on merits and called upon the advocates to argue. Thereafter, the matter was adjourned thrice and ultimately the learned counsel for the petitioner submitted the arguments on 03-09-2010. 7. Sri C.Ramachandra Raju, learned counsel for the petitioner contends that when the child was in the custody of the petitioner, who admitted in Goutam Model School, RTC X roads, the 3rd respondent along with others forcibly took away the child on 02-03-2009; therefore, the police are under obligation to restore the custody of the child to the petitioner. Once the custody is restored, the parties are at liberty to obtain custody of the child by moving the court under the Guardians and Wards Act. Due to the conduct of the 5th respondent moving the child from out of the country and not furnishing the correct address, it is difficult for the petitioner to serve the 5th respondent at her address and for enabling him to obtain the custody of the child even he moves to the civil court for the said purpose. Therefore, necessary direction may be issued to handover the custody of the child or to keep the child in India at the known address or with her father and mother till the dispute is resolved between the parties with regard to child custody. 8. Petitioner himself admitted in the writ petition that the child was under the care and custody of the 3rd respondent and his wife when he was away from India; he has taken the custody of the child in July, 2008 and admitted in Goutam Model School, RTC X Roads, Hyderabad; on 02-03-2009 the 3rd respondent took away the child while coming from School; the mother took the custody of the child since from 04-03-2009 after return from UK. There is no order either by the Indian Court or by the Foreign Court, granting custody of the child to the petitioner or granting visiting rights to the petitioner. The direction issued in SHILPA AGGARWAL v. AVIRAL MITTAL[1], on which reliance is placed by the learned counsel for the petitioner, do not apply to the facts of the present case. 9. Suffice it to say, mother is the natural guardian of the child, who is aged about 4 years, and took the child along with her where she is working and got admitted in a school, for which she is entitled to. If the petitioner wants the custody of the child, it is open for him to move the competent civil court under the provisions of Guardians and Wards Act and seek custody of the child. Since the child is not in wrongful confinement, issuance of Habeas Corpus does not arise. The third respondent is directed to furnish the address of his daughter, 5th respondent, to the petitioner for enabling him to move the competent court for the custody of the child. 10. The writ petition is accordingly dismissed granting liberty to the petitioner to avail the remedies available under law. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 17-09-2010 Murthy [1] (2010) 1 SCC 591