ABRAR KHAN DURRANI Vs. SHO VISAKHAPATNAM

JUDGEMENT

(1.) The Writ of Habeas Corpus is filed by the petitioner seeking a direction to the respondents to produce his son (sic. Abrar Khan Durrani) aged about 18 months before the Court and to give the custody of the child to the petitioner. The brief facts as set out in the affidavit of the petitioner are as follows:

(2.) A counter-affidavit has been filed by the first respondent stating that on enquiry, it has come to tight that the child is in the custody of 3rd respondent and further the 3rd respondent had claimed that the child is being kept under their custody and being taken care of the child in terms of the wish expressed by late Smt Shafia Sulthana, who is the mother of the child through a registered will dated 13.7.2011. The 1st respondent had also stated that the petitioner had filed a private complaint before the I Additional Chief Metropolitan Magistrate, Visakhapatnam under Sections 114, 120A, 339, 334, 344, 347, 369, 379, 384, 386, 407, 424, 447, 451, 452, 477, 506 read with 34 IPC and a case has been registered in Crime No. 291 of 2012 on 13.7.2012. The matter is being investigated and statements of several witnesses including the relatives of 3rd respondent were recorded. The police after completion of enquiry came to the conclusion that the matter is of civil nature and steps are being taken to refer the matter as non-cognizable (civil in nature).

(3.) A detailed counter-affidavit has also been filed by the respondent No. 3 on behalf of the respondents 3 to 5 denying the allegations made in the writ petition. It is further stated that it is on account of the petitioner's ill treatment, Smt Shafia Sulthana was staying in Visakhapatnam and even for the delivery she chose to be at Visakhapatnam and as a matter of fact, the petitioner never bothered about her. It is also stated that even before the death of Smt Shafia Sulthana, her parents were residing at Visakhapatnam and on account of the ill-treatment of the petitioner, she had executed a registered will on 13.7.2011 mentioning about the properties which she has inherited from her parents and bequeathing all the properties to her son and in the said will, the responsibility of implementing her desire as expressed in the will was entrusted to the 3rd respondent who is none other than Smt Shafia Sulthana's father's brother. The boy Nawaz Shariff Khan Durrani being of tender age, he is required to be taken care of in terms of the wishes of her mother and neither himself nor other respondents are interested in the property of the child but they are only concerned about the welfare of the child. Considering the fact that the petitioner has another wife and has also another child, the mother of the child had entrusted the responsibilities to the 3rd respondent. In the counter-affidavit, it is also stated that the writ of Habeas corpus is not maintainable for seeking custody of the minor child as that relief can be granted by the Family Court at Visakhapatnam after considering the evidence which may be led by the respective parties before it.