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2022 DIGILAW 861 (AP)

Cheenu Gopi v. State of Andhra Pradesh

2022-09-12

B.V.L.N.CHAKRAVARTHI, U.DURGA PRASAD RAO

body2022
ORDER : B.V.L.N. Chakravarthi, J. This Writ Petition is filed under Article 226 of the Constitution of India. It involves a contest between Petitioner and Respondents 6 & 7 over the custody of child born out of wedlock between the petitioner and the deceased daughter of respondents No.6 & 7. The respondents 1 to 5 are State. 2. The petitioner/father has prayed for the following relief : (a) Issue a writ, order or direction more particularly one in the nature of the writ of Habeas Corpus declaring that the action of the respondents No.6 & 7 in forcibly detaining the petitioner’s daughter named Cheenu Geethanshi aged 10 months in their custody from 10.08.2022 as illegal, (b) The inaction of the respondent No.5 in securing the release of the child as unlawful, (c) Direct the 5th respondent to produce the said child before this Court and set her free by handing over to the petitioner/natural father and guardian and; (d) Pass such other order or orders as this Court deems fit and proper in the circumstances of the case. 3. The summary of the case of the petitioner/father is as under: (i) The petitioner’s marriage was solemnized with Kokkiligadda Mounika elder daughter of the respondents Nos.6 & 7 in the year 2020 in accordance with the Hindu Rites and Customs prevailing in the society and that the petitioner’s wife gave birth to the female child on 15.10.2021 in a private hospital at Guntur, and the child was named as Cheenu Geethanshi and that the petitioner and his wife were living happily and rising the child with love and affection. (ii) The wife of the petitioner fell sick in the year 2022 and was diagnosed with Acute Myeloid Leukemia, and she died on 03.04.2022 at Vijayawada in HCG Cancer Hospital, while undergoing the treatment and thereafter the petitioner has been taking care of the child with the help of his mother and father and the petitioner’s wife informed to the petitioner while she was alive that the death-cum-monetary benefits of the petitioner’s wife are in process for disbursing to the successor and instructed the petitioner to claim the same by submitting all the relevant documents and accordingly the petitioner applied for the family member certificate from the revenue authorities, and he alone was appointed as nominee in the service records of the petitioner’s wife and this was known to the respondents 6 & 7, and they started harassing the petitioner to share the amounts and causing obstructions to the petitioner from receiving the amounts. (iii) The respondents 6 & 7 started threatening the petitioner that if he fails to provide the benefits to them, they would forcibly take away the child and keep her in their illegal custody. On 10.08.2022 in between 9:00 AM to 10:30 AM they along with some anti-social elements entered the petitioner’s house, threatened the petitioner/parents with deadly weapons and the respondent No.7 took the child into her hands and pushed away the petitioner’s parents, and they received minor injuries. (iv) The petitioner and his parents went to the Adavuladeevi Police Station and complained to 5th respondent who is the Station House Officer, but 5th respondent did not initiate any steps succumbing to the political pressures and allowed their illegal acts with impunity. The 5th respondent did not take any action so far, and the presence of the petitioner and his parents can be easily traced from the surveillance records available in the police station, and further, the conversation captured in the cell phone. (v) The petitioner in order to look after the welfare of the child did not go for 2nd marriage after death of wife. He has been providing all the requirements to the child and planning to give a beautiful life to child. The petitioner is the natural father of the child and having every right on the child. (v) The petitioner in order to look after the welfare of the child did not go for 2nd marriage after death of wife. He has been providing all the requirements to the child and planning to give a beautiful life to child. The petitioner is the natural father of the child and having every right on the child. The respondents 6 & 7 have no right and take the child and keep the child in their custody which tantamounts to an illegal act and an offence under law. (vi) The petitioner was taking care of child in all respects with the help of his mother and providing all medical immunization vaccines as planned by the hospital and any failure in providing the same may badly effect the health of the child and her future also, and if the illegal custody of the child is continued in the hands of 6th & 7th respondents, the health plan designed to the child may go upset and therefore the petitioner approached to the Court for custody of minor child. (vii) The petitioner is working as Civil Engineer in a construction company and earning salary of Rs.40,000/- per month. He is able to spend substantial amount for the welfare and growth of the child. Hence the Writ Petition. 4. The summary of the case of the respondent Nos. 6 & 7 : (i) The Writ of Habeas Corpus on the allegation of illegal custody of the child by respondents 6 & 7 and for handing over her custody is not maintainable because the respondents 6 & 7 are also natural Guardians and having the right to look after the welfare of the child and only remedy available to petitioner is under Hindu Minority and Guardianship Act. (ii) The child is with these respondents since her birth at Repalli in a Private hospital as the deceased mother of the child was working in Software Company at Hyderabad, and these respondents are looking after the welfare of the child. The child was never with the petitioner. The mother of the child died due to the ill health and ill-treatment of the petitioner and his parents. (iii) The petitioner is not doing any job or work. He was depending on the earnings of his wife. The petitioner was harassing her for money to meet his luxuries. The child was never with the petitioner. The mother of the child died due to the ill health and ill-treatment of the petitioner and his parents. (iii) The petitioner is not doing any job or work. He was depending on the earnings of his wife. The petitioner was harassing her for money to meet his luxuries. The deceased was doing job since more than four years prior to her death, and the marriage was solemnized two years prior to her death. The Nominee of the deceased is the 7th respondent. (iv) The deceased was admitted in a Cancer Hospital at Vijayawada on 19.03.2022. The petitioner knowing well that she would die, with a malafide intention deceived her and made her to change the nominations to take away her death benefits for his selfishness. At the time of death of the deceased, the 6th respondent was looking after the child and the deceased had no last glance of her own daughter. The petitioner after death of the mother of the child, brought these respondents to Hyderabad on 30.05.2022 for claiming the death benefits. He was not looking after the welfare of the child and has not cared for the welfare of the child, and that the child is in the custody of these respondents from the date of her birth till the 11th day ceremony/rituals of the deceased held at the residence of the petitioner as per the customs and rituals. Therefore, as per the custom, the child has to be at the residence of the petitioner for performing the rituals. The child was brought and kept in the house of the petitioner for 3 days from the 11th day ceremony and when the petitioner came to the house of these respondents for traditional sleep as per the customs, the child was brought to house of these respondents and left with these respondents and since then the child has been in the custody of these respondents, and the petitioner was visiting to Hyderabad for withdrawing the insurance amount payable to the deceased and the insurance authorities took the objection for the payment of said insurance amounts to the petitioner alone. The deceased was entitled to an amount of Rs.18 lakhs, and therefore, the petitioner is trying to hold the child for his illegal motives to withdraw the huge amounts and seeking the custody of the child. The deceased was entitled to an amount of Rs.18 lakhs, and therefore, the petitioner is trying to hold the child for his illegal motives to withdraw the huge amounts and seeking the custody of the child. The petitioner filed the petition for his illegal gains at the cost of the child without filing guardian petition since the truth will come out in the trial of the guardian petition is filed. The petitioner with fraudulent intention approached this Court and not with clean hands. (v) All the vaccines were administered for the child in the Anganvadi Centers (ANMs) and not in the Hospital as claimed by the petitioner. The petitioner is misleading the Court stating that the Vaccine should be given at Sri Rama Chandra Nursing Home. The prescription booklet filed by the petitioner is only for general treatment of the child and not for any vaccinations. The vaccines were given by the ANMs visiting the house of these respondents. On 27.08.2022 at about 10.00 am vaccine was administered to the child by the ANMs at the house of these respondents. The previous vaccine was administered by the ANMs on 15.10.2021 in the village of these respondents. It establishes that the child is in the custody of these respondents since her birth. These respondents are illiterates. The petitioner is planning to take away all the records for his illegal benefits. (vi) These respondents are not having any responsibilities, they are having only two daughters Younger daughter’s marriage was performed before the marriage of the deceased elder daughter, as she was studying at the time. The respondents are doing prawn culture and earning money and they are aged only about 46 and 43 years respectively, and can take care of the welfare of the child. The petitioner is trying to take custody of the child only with a view to get the benefits of the deceased. The petitioner is aged about 26 or 27 years and there is every possibility of his getting remarriage and in that event, child will be abandoned, after he realizes the beneficial amounts. The respondents are assuring that entire expenditure to be incurred for the welfare of the child till she attains the majority and the insurance amount realized will be deposited in the fixed deposit in the nationalized bank in the name of the child till she attained the majority or thereafter. The respondents are assuring that entire expenditure to be incurred for the welfare of the child till she attains the majority and the insurance amount realized will be deposited in the fixed deposit in the nationalized bank in the name of the child till she attained the majority or thereafter. (vii) The deceased and the petitioner fell in love while they were studying and the parents of the petitioner were not willing to perform the marriage but these respondents out of love and affection towards their daughter performed the marriage and as per the customs, the marriage was performed at the house of the petitioner, and these respondents incurred hand loans of more than Rs.5 lakhs for performing the marriage. The deceased was never happy with the petitioner. The petitioner was always harassing the deceased for money and not doing any work. He was depending upon the deceased. (viii) The petitioner is trying his best to claim the death benefits of the deceased, and when the employer of the deceased insisted on bringing the successor of the deceased and to submit relevant documents for claiming the benefits, the petitioner filed this writ petition on 13.08.2022 falsely alleging that these respondents have taken away the child on 10.08.2022. These respondents never brought the child forcibly as alleged by the petitioner and the child has been with these respondents since her birth. (ix) The petition allegations are false. The child is not in the illegal custody of these respondents, who are also the natural guardians and hence the writ petition is not maintainable. (x) The petitioner is not working as Civil Engineer. He himself admitted in the Court on 25.08.2022 that he is not doing any job and the cause title shows that he is residing in the village. 5. Having heard both the learned counsel and having gone through materials on record, the only question of falls of our consideration is whether the petitioner is entitled to any of the reliefs prayed for. 6. Heard, Sri Kiran Kumar Madira, learned counsel appearing for the petitioner. 5. Having heard both the learned counsel and having gone through materials on record, the only question of falls of our consideration is whether the petitioner is entitled to any of the reliefs prayed for. 6. Heard, Sri Kiran Kumar Madira, learned counsel appearing for the petitioner. He submitted that the petitioner admittedly is the natural guardian of the child and that the petitioner neither abandoned nor neglected the child and that the respondents 6 & 7 came to the house of the petitioner on 10.08.2022 in between 9.00 am to 10.30 am and forcibly took away the child with the help of anti-social elements and also caused minor injuries to the petitioner and his family members. Then the petitioner and his parents went to Adavuladevi Police Station and informed the 5th respondent about offence committed by the respondents 6 & 7 and others, but he did not take any appropriate action due to political pressure on account of the influence used by the 6th & 7th respondents, and the 6th & 7th respondents have no love and affection for the child, and they are threatening to take away the child after they came to know that the death benefits of the deceased are going to be disbursed to the petitioner who is the successor of the deceased and the revenue authorities issued family member certificate in favour of the petitioner. He would further argue, what is important is the welfare of the child and the petitioner is the only natural guardian alive and has been taking care of the child in all respects and as a father, the petitioner is entitled to the custody of child and the respondents 6 & 7 have no legal right to the custody of the child. In support of his arguments, he relied upon the judgment Apex Court Tejaswani Goud and Others v. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 . 7. In support of his arguments, he relied upon the judgment Apex Court Tejaswani Goud and Others v. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 . 7. Heard, Sri P. Sree Ramulu Naidu, learned counsel appearing for the respondents 6 & 7, who vehemently opposed this writ petition on the substantial ground that Writ of Habeas Corpus is an extraordinary remedy which can be issued, when ordinary remedy provided by law is not available or is ineffective; in child custody matters, power of High Court in granting writ is qualified only in the cases where retention of minor by the person is not a legal custody, and in other instances ordinary remedy lies under Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890; There is significant difference between enquiry under Guardians and Wards Act and exercise of powers by a writ Court which is of summary in nature and what is important is the welfare of child and in writ Court, rights are determined only on the basis of affidavits, however where Court is of the view that a detailed enquiry is required, Court may decline to exercise extraordinary jurisdiction and direct parties to approach civil Court; the paramount consideration is welfare of the child and not the rights of parents under statue for time being force, and in the case on hand, the petitioner who is the father of the child is not having any employment or work and the WhatsApp chat conversation filed by the respondents 6 & 7 collected from mobile phone of their deceased daughter would disclose that they were not having cordial terms and the petitioner’s interest was only to extract money from her during her lifetime, and the circumstances in the case shows that the petitioner is only having interest in the death benefits of the deceased wife; the material available before this Court would clearly show that the child has been in the care and custody of respondents 6 & 7 from the date of her birth, and the allegation made by the petitioner that these respondents forcibly took away the child on 10.08.2022 is not true and correct, and it was invented for filing the writ petition, and therefore the petitioner is not entitled for any relief, and in support of his arguments, he relied on judgment of the Hon’ble Apex Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & others, 2022 Law Suit (SC) 838. 8. The learned Government pleader appearing for the official respondents submitted a copy of F.I.R in Crime No.96/2022, dated 14.08.2022 registered for the offense punishable Under Sections 363, 448, 323, 506 and 509 r/w 34 IPC, on the report presented by the petitioner against the 6th & 7th respondents and others alleging that child was forcibly taken away from his custody, and he submitted that the 5th respondent is conducting investigation to find out the truth of the allegations made by the petitioner, and that the investigation is under progress. 9. Heard. 10. Hon’ble Supreme Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & others (2 supra) considered the primary object of the Habeas Corpus Petition and held that in a matter relating to a claim for custody of the child, the principal issue which should be taken into consideration is as to whether from facts of the case, it can be stated that the custody of the child is illegal. The Hon’ble Supreme Court also considered the principles of law governing the rights of the parties under the Guardians and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 in Para 71 & 72 held that : Para 71 “The Guardians and Wards Act, 1890, was primarily enacted to consolidate the various Acts then in force keeping in view the personal law of diverse communities in India. It, however, did not encroach upon the jurisdiction of the Courts of Wards and did not take away any powers vested in the High Courts or the Supreme Court. A minor’ under the Act has been defined as a person whom under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. A guardian’ has been defined as a person having the care of the person of a minor or of his property or of both his person and property. Section 6 of the Act provides that no provision in the Act shall be construed to take away or derogate from any power to appoint a guardian of a minor’s person or property, or both, which is valid by the law to which the minor is subject. Section 6 of the Act provides that no provision in the Act shall be construed to take away or derogate from any power to appoint a guardian of a minor’s person or property, or both, which is valid by the law to which the minor is subject. Section 7 gives power to the Court that if it is satisfied that it is for the welfare of a minor that an order should be made, it may make an order appointing guardian of his person or property, or both, or declaring a person to be such a guardian. Section 8 lays down that no order under Section 7 will be made except on the application of the person desirous of being, or claiming to be the guardian of the minor or any relative or friend of the minor or the collector of the district in which the minor ordinarily resides or in which he has property or the Collector having ;authority with respect to the class to which the minor belongs. Section 9 deals with the territorial jurisdiction of the Court. Section 10 lays down the manner in which an application is to be made and what is to be stated in the application. Section 11 provides for the procedure on admission of such an application. Section 12 gives power to the Court to make interlocutory order for production of a minor and interim protection of his person and property. Section 17 enjoins upon the Court to have due regard to the personal law of the minor and specially take note of the circumstances which point towards the welfare of the minor in either appointing a guardian or declaring a guardian. If the minor is old enough to form an intelligent preference, the Court may be justified to consider that preference also in coming to the final conclusion. Further, no person can be appointed as a guardian against his own will. Para 72: The Hindu Minority and Guardianship Act, 1956 was enacted as a law complementary to the Guardians and Wards Act, 1980. This defines a minor’ to be a person who has not completed the age of eighteen years. Further, no person can be appointed as a guardian against his own will. Para 72: The Hindu Minority and Guardianship Act, 1956 was enacted as a law complementary to the Guardians and Wards Act, 1980. This defines a minor’ to be a person who has not completed the age of eighteen years. Guardian’ has been defined as a person having the care of the person of a minor or of his property or of both his person and property and includes - (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a Court, and (vi) a person empowered to act as such by or under any enactment relating to any Court of wards. Natural guardian’, according to this Act, means any of the guardians mentioned in Section 6. Section 6 says that the natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in the joint family property) are – (a) in the case of a boy or an unmarried girl, the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 lays down that the natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate but the guardian can, in no case, bind the minor by a personal covenant. Sub-Section (5) of Section 8 lays down that the Guardians and Wards Act, 1890, shall apply in certain circumstances. Section 13 of the Act lays down that in the appointment or declaration of any person as guardian of Hindu Minor by a Court, the welfare of the minor shall be the paramount consideration. Indeed sub-section (2) of Section 13 lays down that no person shall be entitled to the guardianship by virtue of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. Indeed sub-section (2) of Section 13 lays down that no person shall be entitled to the guardianship by virtue of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. This section is complementary to section 17 of the Guardians And Wards Act, 1890 which lays down that in appointing or declaring the guardian of a minor the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.” 11. Hon’ble Supreme Court held that a mere reading of the provisions of the two Acts referred above makes it clear that the welfare of the minor predominates to such an extent that legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role, in the determination by the Court. 12. In a petition filed seeking a Writ of Habeas Corpus claiming custody of child, the principal issue which should be taken into consideration is whether from the facts of the case, it can be stated that the custody of child is illegal. Hon’ble Supreme Court in the above judgment in Para 75 held that : Para 75: “In a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of child, the principal issue which should be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal”. 13. The Hon’ble Supreme Court in Para 91 held that : “Thus, it is well established that in issuing the writ of Habeas Corpusin the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statue. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statue. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statue. The jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the enquiry and result sought to be accomplished call for the exercise of the jurisdiction of the Court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the Court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the state, as parents patriae, has in promoting the best interests of the child.” 14. The Hon’ble Supreme Court considered the object and scope of Writ of Habeas Corpus in the context of claim relates to the custody of minor child and held that this question was considered by the Hon’ble Supreme Court in the case of Nithya Anand Raghavan v. State (NCT of Delhi) and another, (2017) 8 SCC 454 , held that : “the paramount consideration in cases like the one on hand, should be the welfare of the minor child – in respect of whom the Habeas Corpus writ petition is preferred by one or the other parent. The other considerations – like comity of Courts; orders passed by foreign Courts having jurisdiction in the matter regarding custody of a minor child – in respect of whom the Habeas Corpus writ petition is preferred by one or the other parent. The other considerations – like comity of Courts; orders passed by foreign Courts having jurisdiction in the matter regarding custody of a minor child – in respect of whom the Habeas Corpus writ petition is preferred by one or the other parent. The other considerations – like comity of Courts; orders passed by foreign Courts having jurisdiction in the matter regarding custody of a minor child; citizenship of the parents; and the child; the intimate connect’; the manner in which the child is brought in India, i.e. even if it is in breach of order of competent Court in foreign jurisdiction, cannot override the consideration of child’s welfare, since it is the responsibility of a Court, which exercises parens patriae jurisdiction, to ensure that the exercise of extraordinary writ jurisdiction is in the best interest of the child, and the direction to return the child to a foreign jurisdiction does not result in any physical, mental, psychological, or other harm to the child.” 15. It was held that the principal duty of such Court would be to ascertain whether child custody can be said to be unlawful or illegal, and whether the welfare of the child requires that the present custody should be changed and the child should be left in care and custody of fit person, as the welfare of the child is of paramount consideration for the Court. 16. The principle is well settled that in a matter of custody of child, welfare of the child is paramount consideration for the Court as laid down by Hon’ble Supreme Court in Syed Salamuddin v. Dr. Rukhsana and others, (2001) 5 SCC 247 . 17. The Hon’ble Supreme Court while considering the question of maintainability of Habeas Corpus under article 226 of the Constitution of India for the custody of minor in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and Others, (2 Supra) considered the case of Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, (1 supra) relied on by the petitioner in the case. 18. 18. The Hon’ble Supreme Court held that the petition would be maintainable where the detention by parents or others is found to be illegal and without authority of law, and the extraordinary remedy of writ of Habeas Corpus can be availed in exceptional cases, where the ordinary remedy provided by the law is either unavailable are ineffective and that Habeas Corpus proceeding is to justify or examine the legality of the custody and in child custody matters, the ordinary remedy lies only under Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890 as the case may be, and there is significant difference between enquiry under Guardians and Wards Act, and writ jurisdiction which is a summary in nature, and what is important is the welfare of the child, and in the Writ Court, rights are determined only on the basis of affidavits, and where the Court is of the view that detailed enquiry is required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the Civil Courts, and it is only in exceptional cases, the rights of the custody of the minor will be determined in exercise of extraordinary jurisdiction of the petitioner for Habeas Corpus. 19. The Hon’ble Supreme Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & others (2 supra) referred the case of Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC 322 , where the custody of minor child was sought by the father being a natural parent from the maternal grandmother, mother having died in childbirth. It was held that taking proper care and attention in upbringing of the child is an important factor for granting the custody of the child, and on facts the child having been brought up by the grandmother since her infancy, and having developed emotional bonding, the custody of child was allowed to be retained by the maternal grandmother. It was held that taking proper care and attention in upbringing of the child is an important factor for granting the custody of the child, and on facts the child having been brought up by the grandmother since her infancy, and having developed emotional bonding, the custody of child was allowed to be retained by the maternal grandmother. While considering in between the natural guardianship and the welfare of the child, the Court held what would best serve the welfare of the child is to be taken and referred to the earlier decisions in “Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745 , Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 , Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 112 and Muthuswamy Chettiar v. K.M. Chinna Muthuswami Moopanar, AIR 1935 MD 195, wherein it was held that the welfare of child prevails over the legal rights of the parties while deciding the custody of minor child. 20. The learned counsel appearing for the petitioner placed strong reliance on the decision of the Hon’ble Supreme Court in the of “Tejaswini Gaud v. Shekhar Jagdish Prasad Tewar, (1 supra). As stated supra this decision of the Hon’ble Supreme Court was referred and considered by the Hon’ble Supreme Court Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & others (2 supra) relied on by the learned counsel for the respondents 6 & 7. 21. We proceed to examine whether the facts before us reveal only an illegal custody held by Respondents 6 & 7 to exercise our plenary jurisdiction or the facts pose the conflicting legal rights and welfare of child thus necessitating us to relegate the parties to approach the appropriate forum. 22. The contention of the petitioner is that the child who is aged about 10 months is in his custody since the date of death of his wife who is the daughter of the 6th & 7th respondents herein. 22. The contention of the petitioner is that the child who is aged about 10 months is in his custody since the date of death of his wife who is the daughter of the 6th & 7th respondents herein. The material available before this Court apparently shows that the petitioner and the deceased fell in love during their study period and their marriage was solemnized in the year 2020, as shown in the wedding invitation card, and she was working as a Software Engineer at Hyderabad, and therefore, the petitioner and deceased were living at Hyderabad, and out of their wedlock female child was born on 15.10.2021 as disclosed in the photo copy of the Aadhar card filed by the petitioner. The facts would further reveal that the deceased suffered ill health, subsequently, she was admitted in HCG Cancer Hospital at Vijayawada, and she died on 03.04.2022. The petitioner is claiming that the child has been in his custody since the date of her birth. The respondents 6 & 7 contend that her daughter was never happy with the petitioner, and he was always harassing her for money and he was not doing any work and he was depending on the deceased for the luxuries and the entire medical expenses of the deceased were borne by them only and the child is in the care and custody of the respondents 6 & 7 from her birth in view of employment and ill health of the deceased and therefore, the contention of the petitioner that child was in his custody on 10.08.2022 and the respondents 6 & 7 forcibly took away the child from the custody of the petitioner is not correct. The respondents 6 & 7 are contending that the petitioner is not having any interest in the welfare of the child and his intention is to get the death benefits of the deceased by using the child, and therefore, he filed the writ petition and after getting the benefits he will abandon the child and there is every likelihood of his getting re-marriage as he is aged only 26 or 27 years. The petitioner contend that the respondents 6 & 7 are having an eye over the death benefits of the deceased, and therefore, they are threatening the petitioner to take away the child from his custody and accordingly on 10.08.2022 they took away the child from his custody. The petitioner contend that the respondents 6 & 7 are having an eye over the death benefits of the deceased, and therefore, they are threatening the petitioner to take away the child from his custody and accordingly on 10.08.2022 they took away the child from his custody. 23. The respondents filed photo copies of WhatsApp conversation between the petitioner and the deceased dt.13.03.2022 collected from the mobile of the deceased which would show that the relation between the petitioner and deceased was not cordial. The respondents 6 & 7 also filed photo copy of mother and child welfare card issued by the Government of Andhra Pradesh in favour of the deceased to show that ANMs were attending health issues of the deceased as well as the child as the deceased was residing in the house of her parents in the village for delivery. It is an admitted fact that subsequently deceased suffered with serious health issues and admitted in the hospital in March 2022, and died on 03.04.2022 at HCG Cancer Hospital at Vijayawada, as seen from the photo copy of the hospital record filed by the petitioner. It is pertinent to note at this juncture that the WhatsApp chat between the petitioner and deceased, relates to the date 13.03.2022, indicating that the relationship between petitioner and deceased wife was not cordial and hence the contention of the petitioner that the child is in his custody from the date of her birth and also during the ill health period of the deceased appears to be doubtful. 24. The material produced by both sides prima facie shows that there are some disputes between the petitioner and the respondents 6 & 7 with regard to the death benefits of the deceased who worked as Software Engineer at Hyderabad. 25. The petitioner did not produce any record to show that he is working in a company and earning for Rs.40,000/- per month to look after the welfare of the child. 26. 25. The petitioner did not produce any record to show that he is working in a company and earning for Rs.40,000/- per month to look after the welfare of the child. 26. In the case of Ajali Kapoor v. Rahjiv Baijal, (5 supra) where the custody of a minor child was claimed by the father being the natural parent from the maternal grandmother, the mother having died in childbirth, it was held by Apex Court that taking proper care and attention in upbringing the child is an important factor for granting custody of child, and on facts, the child having been brought up by the grandmother since her infancy and having developed emotional bonding, the custody of the child should be allowed to be retained by the maternal grandmother. While considering the competing rights of natural guardian vis-à-vis the welfare of the child, the test for consideration by the Court was to be; what would best serve the welfare and interest of the child. Referring to the earlier decisions in Sumedha Nagpal v. State of Delhi, (6 supra), Rosy Jacob v. Jacob A. Chakramakkal, (7 supra), Elizabeth Dinshaw v. Arvand M. Dddinshaw, (8 supra) and Muthuswamy Chettiar v. K.M. Chinna Muthuswami Moopanar, (9 supra), it was held that the welfare of child prevails over the legal rights of the parties while deciding the custody of minor child. The observations made in the judgment in this regard are as follows : “14. The question for our consideration is, whether in the present scenario would it be proper to direct the appellant to hand over the custody of the minor child Anagh to the respondent. 15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law.” 27. The above cases were also referred in Rajeswari Chandrasekar Gaanesh v. State of Tamil Nadu & Others (2 supra) relied on by the learned counsel for the respondents 6 & 7. 28. The above cases were also referred in Rajeswari Chandrasekar Gaanesh v. State of Tamil Nadu & Others (2 supra) relied on by the learned counsel for the respondents 6 & 7. 28. The Hon’ble the Supreme Court in Tejaswani Goud and Others v. Shekhar Jagdish Prasad Tewari and Others(1 supra) relied on by the learned counsel for the petitioner also held that welfare of the minor child is paramount consideration and further held that the Court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian, but welfare of the minor is supreme consideration in cases concerning custody of minor child. 29. In the case on hand the material before us prime-facie shows that the child was born when her mother was at the house of the respondents 6 & 7 in their village, and later unfortunately the mother suffered serious ill health due to cancer, and admitted in a hospital at Vijayawada, and that her parents looked after her medical care and later she died. The facts would show the custody of child by Respondents 6 & 7 per se not illegal to warrant Writ of Habeas Corpus. 30. Therefore, upon considering the facts and circumstances in the case, we are not inclined to grant a Writ of Habeas Corpus as prayed by petitioner, as the petitioner failed to establish the custody of the child held by the respondents 6 & 7 is unlawful, illegal or wrongful and respondents 6 & 7 cannot look after her welfare. 31. Accordingly this Writ Petition is dismissed, however, if advised, the petitioner is at liberty to approach a Competent Civil Court seeking his minor daughter’s custody, in which case, the said Court shall conduct due enquiry and deliver order on merits without being influenced by the observations made by us in this Order. Before parting, considering that Petitioner is the natural parent of the minor child, we permit him to visit the child at the residence of Respondents 6 & 7 on every Sunday between 10:00 AM and 04:00 PM till he approaches Competent Civil Court and establishes his right to the custody of the minor child. The Respondents shall facilitate the petitioner to visit his daughter as directed. The interlocutory application pending if any, stands closed.