THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.14895/2010 Dt.23-8-2010 Smt. Deviyani Pande ..Petitioner ..Petitioner V. 1. The Commissioner of Police, Cyberabad, Gachibowli, Ranga Reddy District and others. ..Respondents ..Respondents The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU WP No.14895/2010 ORAL ORDER (per the Honourable Justice A.GOPAL REDDY) This writ petition under Art. 226 of the Constitution of India is filed for issuance of a writ of Habeas Corpus for production of the minor child, Vyshnavi, alleging that she is in illegal custody of the petitioner’s husband, namely, Arvind Patkar, the third respondent herein. In the affidavit filed in support of the petition, it is stated that the petitioner married the third respondent on 26-5-2004, and it was a love marriage with the consent of the parents of both sides. During the wedlock, a child was born on 11-10-2005 at Sai Nikhit Hospital at Kothapet, belonging to the in- laws of the petitioner. The third respondent is a Software Engineer. They lived together till 15-1-2008. The third respondent left to Bangkok on 16-1-2008 and after securing employment returned to India on 24-12-2008 to take back the petitioner and the child to Bangkok on 29-12-2008. According to the third respondent, a day before his landing in India, the petitioner left the house and went to her parents’ house at Alwal leaving the child under the care of the fourth respondent, the mother of the third respondent. Since the petitioner refused to go along with the third respondent to Thailand along with the child on 29-12-2008, ticket booked in the name of the petitioner was cancelled by Thai Airways by collecting cancellation charges. After third defendant leaving India along with her daughter, the third respondent got admitted his daughter in the school on 20-3-2009 at Bangkok. The petitioner filed DVC No.5/2009 before VI Metropolitan Magistrate, Cyberabad at Medchal, Ranga Reddy District on 19-3-2009, for various reliefs including custody and visiting rights of the minor child-alleged detenu, against the third respondent, his father, his mother, who is fourth respondent herein and another. The learned Magistrate by order dt. 21-8-2009 directed the respondents therein to ensure that the minor girl is shown and met and allowed to visit the petitioner without further delay. Questioning the same, the third respondent along with his father and mother, filed DVC Appeal No.103/2009 before the Additional Metropolitan Sessions Judge, Cyberabad at L.B. Nagar. Learned Sessions Judge by order dt. 17-9-2009 passed in Crl.M.P.No.163/2009 suspended the operation of the order passed by the learned Magistrate dt. 21-8-2009.. The said DVC appeal was allowed on 12-1-2010 setting aside the order passed in DVC No.5/2009 dt. 21-8-2009. Questioning the same, the petitioner filed Criminal Revision Case No.377/2010 before this court. When it was taken up for hearing, learned counsel for the petitioner sought a direction to the trial court to dispose of DVC within three months. This court dismissed the revision case by order dt. 15- 4-2010 holding that there are no grounds to admit the revision case. On dismissal of the revision case, the present writ petition has been filed for production of the alleged detenu alleging that she is in illegal custody of the third respondent. Further, the petitioner also lodged a complaint with the second respondent on 30-9-2009 alleging harassment meted out to her by the third respondent, on which basis, Cr.No.1142/2009 was registered for the offence punishable under Sec. 498-A IPC on 30-9-2009. The second respondent filed a counter-affidavit stating that on petitioner lodging the written complaint on 30-9-2009, Cr.No.1142/2009 has been registered for the offence under Sec.498-A IPC and investigation was taken up. During the course of investigation, the investigating officer examined the complainant, her mother and brother and recorded their statements. Their investigation revealed that there were difference between the petitioner and the third respondent, who had taken the alleged detenu along with him to Bangkok but they did not corroborate with regard to the harassment meted out to the petitioner by her sister-in-law. The police after due investigation filed a charges sheet against A-1 to A-3 ie., in-laws of the petitioner and the third respondent. Since A-1 (R-3 herein) is out of the country, the court issued NBW against him on 4-1-2010 and the matter is pending trial. The fourth respondent filed a counter-affidavit on behalf of herself and also on behalf of the third respondent stating about third respondent marrying the petitioner and his (third respondent) leaving India for Bangkok on securing job. She further stated that the third respondent booked tickets for himself and the petitioner at Bangkok and he also booked ticket for Vaishnavi Bala in India for onward journey to Bangkok. But a day before third respondent landing at Hyderabad, the petitioner left to her parents house on 23-12-2008 leaving the child under the care of the fourth respondent. The petitioner along with her mother and brother came to the house of the third respondent on 28-12- 2008 and fought with the third respondent and his parents and left the house leaving the child behind. As there was no other go, the third respondent along with the alleged detenu left India on 29-12-2008. When the petitioner approached the Women’s Protection Cell, Ms. Mocina, the Counsellor and Mr. Kasinath, Deputy Superintendent of Police counselled the petitioner and the father of the third respondent. They also spoke to R-3 over phone. During the counselling, the petitioner refused to go to Bangkok. Later she filed a complaint before the Protection Officer, District Women Welfare and Child Development Agency, Ranga Reddy District in the month of March, 2009, which culminated into DVC No.5/2009. The petitioner has not denied the averments made by the fourth respondent that a day before third respondent landing in Hyderabad she left to her parents house leaving the child at the house of the third and fourth respondents and when she refused to accompany the third respondent to Bangkok along with the child, the third respondent took the child and went to Bangkok, by filing any reply. It is well settled that when the writ is sought against a parent for the custody of a child, clear grounds must be made out and it has to be established that parent snatched away the child from the lawful custody of the mother. No such evidence has been let in by the petitioner that the third respondent snatched away the child and left India with the Child to Bangkok. The fourth respondent filed a counter-affidavit with specific averments that the third respondent booked tickets for the petitioner and the child to go to Bangkok along with him, and when the petitioner refused to go along with the third respondent, he (third respondent) has no other option except to leave the country along with the child. Since the averments made in the counter-affidavit of the fourth respondent were not traversed by the petitioner by filing a reply affidavit, the same would be deemed to have been admitted by her. Therefore, we are not inclined to accept the contention of the petitioner that the child is in the illegal custody of the third respondent for issuing a writ of Habeas Corpus. The writ petition is accordingly dismissed. However, liberty is granted to the petitioner to work out her remedies either in the DVC filed by her by leading evidence or under the Guardian and Wards Act, 1890. No costs. -------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 23-8-2010 Kmr