IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No. 27813 OF 2010 Between: Vaddy Satish Kumar ..... Petitioner AND State of Andhra Pradesh, Rep. By Superintendent of Police, Eluru, West Godavari District and another. .....Respondents The Court made the following : ORAL ORDER: (per THE HON’BLE SRI JUSTICE V.ESWARAIAH) The petitioner is father of the alleged detenu V.Suraj Kumar, who is a minor born on 14.12.2004 and yet to complete six years of age. It is stated that the petitioner originally hails from Visakhapatnam where his parents live, but presently residing in a flat at Bangalore, working at HCL. While so, on 3.11.2010 his son left for the school at 7.30 a.m. by school bus and he left to office at 8.00 a.m. and thereafter he called his wife between 1.00 p.m. and 3.30 p.m., but he could not reach her either on phone or her mobile. It is stated that meanwhile his brother informed him that he has reconnected the disconnected phone line and searched for his wife around, but unable to trace her at home. He reached home at 6.00 p.m. and found that his wife’s gold ornaments, jewellery, all her belongings, passport, birth certificate, educational certificates and medical record of his son are missing. It is further stated that all his efforts to contact her on mobile proved fruitless and he tried to reach his in-laws over phone at Palakol, West Godavari District, but they were not lifting the phone. He made a report before the Police Inspector, Hulimavu Police Station, Bangalore on 9.11.2010, stating that out of his wedlock, they begot a son, the alleged detenu, born on 14.12.2004 and that on 3.11.2010, after finishing his work, he came around 5.30 p.m. to the house but as he did not find his son inspite of search made by him, he lodged the report about their missing. It is stated that Hulimavu Police Station, Bangalore, registered a case in Cr. No. 345 of 2010 on 9.11.2010. The report was given about missing of his wife and minor son. Pursuant to the report dated 9.11.2010, it is stated that the Station House Officer got flashed alert to their control room to broadcast about the missing of his wife and minor son and the happenings were recorded in General Diary. It was stated that on 4.11.2010, the petitioner called his cousin, who negotiated in arranging the match with his wife and he gave the information that his wife and son reached Pakalole on 4.11.2010 and that they were safe. It is not alleged that his son is in illegal custody of his wife. It is stated that the petitioner apprehends that his wife may fly off with the minor out of the country, in which case he will be deprived of the love and affection of his son. It is stated that his son is studying in first standard in PSBB School, Off Bannerghatta Road, near Tulip Resort, Bangalore. It is also stated that his son is not keeping good health and, therefore, they have came back from U.S. and his wife in a desperate mode has forcibly taken the custody of minor and has gone to her parents residence at Palakol and planning to leave the country, taking advantage of the fact of their son being a citizen of United States of America, by virtue of his birth at that place, ignoring the fact that the climate there, does not suit the minor’s health. In the background of these facts and circumstances and in view of the averments made in the writ affidavit, the petitioner cannot resort to invoke the extraordinary jurisdiction of this court under Article 226 of the constitution of India. The question as to whether the petitioner who is father of the minor, or the mother, is entitled for the legal custody, has to be decided by the Family Court. Merely because the minor is in the custody of the mother, it cannot be said that minor is in illegal custody of the mother and that the petitioner is entitled to seek a writ of habeas corpus so as to direct the mother to produce their minor son before the court. Consequently, the writ petition fails and is accordingly dismissed. No order as to costs. ________________ Justice V.Eswaraiah ___________________________ Justice Samudrala Govindarajulu November 10, 2010 MAS