THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU Writ Petition No.8470 OF 2010 16-08-2010 Between: Kode Ramakrishna ……….Petitioner And The State of Andhra Pradesh, Department of Home, Secretariat, Saifabad, Hydeabad and others. ………Respondents THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU Writ Petition No.8470 OF 2010 ORDER : (Per Hon’ble Sri Justice A.Gopal Reddy) The father of the minor girl viz., Baby Krithi Kode, aged about 4 ½ years invoked the jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of Habeas Corpus complaining that his daughter is in illegal custody of the 3rd respondent, who is the wife of the petitioner and mother of the child, and for handing over the custody of the child to the petitioner by declaring the action of the police in taking away the baby from Vijayawada to Tenali and handing over the custody to the 3rd respondent, as illegal, arbitrary and violative under Articles 14 and 21 of the Constitution of India. 2. The undisputed facts are that the petitioner, who is working as a Software Engineer, married the 3rd respondent on 27-10- 2004. Both of them stayed in Guntur for sometime and after the marriage, he got employment in Span Outsourcing Company in Bangalore. On deputation, the petitioner along with his wife went to U.S.A. and the child was born to them on 28-09-2005 and they stayed there for six months. Thereafter, the 3rd respondent, in order to attend the marriage of her brother, went to her native place with the baby. When she returned to U.S.A. by leaving the child in India, dispute arose between the parties. Then the petitioner applied for Canadian Permanent Residency and it was given to him in November 2006, and later, both of them set up their matrimonial home in Canada, and afterwards, they returned to India in 2007. It is alleged by the petitioner that the 3rd respondent, without any justification, stayed in her maternal home at Tenali and also in Bangalore along with her brother without showing the child to him for one year. During the period, he was in Guntur, and after much persuasion, the 3rd respondent agreed to go back to Canada without the child sometime in the year 2008. Though he insisted the 3rd respondent to bring the child to Canada, she has not brought the child. After he went back to Canada, and moved to U.S.A. for job purpose, the 3rd respondent brought the child to Canada in the early part of April 2009 and at that time, she was working in a private firm. The petitioner informed the 3rd respondent that he decided to return to Guntur and stay there due to the disputes and made travel arrangements to return to India with the child, and accordingly, he came to India on 01-10-2009 to the disliking of the 3rd respondent and his in- laws. After he returned to India, he did not handover the child to them at the Shamshabad Airport itself. But as he thought that Guntur is not safer place, he shifted his family to Vijaywada along with his mother and grandmother, where they started living in Bhavanipuram in a rented house together with his minor daughter. The 3rd respondent reached India from Canada and launched a false report dated 20-11-2009 with the 2nd respondent against the petitioner, and on which, the police registered a case in Crime No.135 of 2009 for the offence punishable under Section 498-A read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act against the petitioner and his mother. During the course of investigation, the 2nd respondent came to Vijayawada on 31- 01-2010 and took custody of the petitioner along with the minor daughter, and after reaching Tenali, the 3rd respondent and paternal uncle reached the police station. The police arrested the petitioner and gave the child to the 3rd respondent and the petitioner was produced before I Additional Judicial First Class Magistrate, Tenali, through remand report dated 01- 02-2010. On such remand, the petitioner was remanded to judicial custody till 05-02-2010. After obtaining bail by petitioner and anticipatory bail by his mother, petitioner made representations to the Superintendent of Police on 06-03-2010 and 26-03-2010. 3. The 2nd respondent filed a counter stating about the complaint allegations and registration of the crime in detail. It is further stated that during the course of investigation, the police made efforts to trace out the petitioner, but he was absconding along with his family members. On receipt of credible information, on 31-01-2010, he effected arrest of the petitioner and produced him before I Additional Judicial I Class Magistrate, Tenali, on 01-02-2010 and the learned Magistrate was pleased to remand him to judicial custody. Pursuant to the remand order, he was lodged at Sub- Jail, Tenali, and subsequently, he was enlarged on bail on 05-02-2010. After causing arrest of the petitioner, the 2nd respondent called the 3rd respondent and gave the child for her care under proper acknowledgment as there was no one else at petitioner’s home to take care of the child which fact also was mentioned in the remand report and the petitioner was produced before the Court in connection with the Crime. The mother of the petitioner who is A-2 in the above crime was not present at the time of taking the petitioner into custody. Subsequently, she obtained anticipatory bail. 4. The 3rd respondent also filed a detailed counter stating that disputes arose between the parties. All those details are now not necessary for the purpose of this case except the averment that the complaint lodged by the 3rd respondent with the police and registration of the crime, which are not in dispute. 5. Sri B.Nalin Kumar, learned counsel for the petitioner, contends that the petitioner in para-9 of the affidavit, categorically stated that the 2nd respondent police has no power or authority to take the minor baby from Vijayawada to Tenali, from the care and custody of her father- the petitioner, her paternal grandmother and paternal great grandmother apart from others. When, he, being a natural guardian of the daughter as to her person and property, the whole purpose of the police taking him into custody along with baby is only to handover the custody of the child to the 3rd respondent. The action of the police in taking the child from Vijayawada to Tenali is absolutely illegal and unauthroised under law and that the police cannot interfere with such dispute and the dispute can be resolved by the Civil Court only on filing a petition under the Hindu Minority and Guardianship Act by the 3rd respondent. 6. We have heard the learned counsel for the petitioner, the learned Advocate General, appearing for R-1 and R-2 and also Smt. K.Sesharajyam, learned counsel appearing for R-3. 7. In the remand report filed by the police on 01-02-2010, it is categorically asserted that the petitioner was arrested on 31-01-2010 at 3 p.m. at M.M.R. Buildings, Bhavanipuram, Vijayawada, and he was brought to the S.H.O., Tenali II Town Police Station and the petitioner-A-1 was kept in police lock-up at 6.15 p.m. and as A-1 has one daughter by name Krithi, aged about 4 years, who was also brought to the police station along with the accused, the police called the complainant to the police station and handed over the baby girl to the mother on proper acknowledgment for safe care. As the investigation is not completed, and some more witnesses are yet to be examined and A- 2 is absconding, the police requested the learned Magistrate, Tenali, to grant remand to A-1 for a period of 15 days. 8. On perusal of the remand report, it is clearly established that when the police went to the house of the petitioner, A-2, who is the mother of the petitioner, was not present at home. As she was absconding and there was nobody in the house, the police were not expected to leave the child at petitioner’s home. Therefore, naturally, they brought the child along with the petitioner to the police station at Tenali, and handed over the custody of the child to her mother, the natural guardian. It is further established that the police followed the due procedure under law by producing the petitioner before the learned Magistrate and he was remanded to judicial custody. Hence, the action of the police in handing over the child to her mother is justified. Therefore, since the mother is the natural guardian of the child, it could not be said that the baby-girl is in illegal custody of the 3rd respondent as alleged by the petitioner. 9. In view of the same, we do not find any merits in the writ petition and the same is accordingly dismissed. It is needless to mention that the petitioner is at liberty to avail alternative remedies as may be available to him under Law for custody of the child and his visiting rights by approaching the appropriate Court. There shall be no order as to costs. __________________________ JUSTICE A.GOPAL REDDY Dated:16-08-2010 ________________________ JUSTICE K.C.BHANU KVR