SRINIVASA RAO KUMBHARI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Srinivasa Rao Kumbhari, an Australian citizen of Indian descent, has filed this writ petition seeking a writ of Habeas Corpus directing the respondents - (1) the State of Andhra Pradesh, (2) Dr. T. H. V. Prasad Rao, (3) Mrs. T. Kamala, (4) Mr. Anjaneyulu and (5) Mrs. T. Saraswathi - to produce his minor daughter, Aparna Kumbhari, aged seven years and hand-over her custody to him. Respondents 2 and 3 are the maternal grand parents of the minor, Aparna Kumbhari; respondent No. 4 is her maternal uncle, and respondent No. 5 is the wife of respondent No. 4 Srinivasa Rao Kumbhari is a Computer Software Engineer residing at No. 107, Willison Road, Carlton, State of New South Wales, 2218, Australia and he works for the State Bank of New South Wales, Sydney, Australia, as a Computer Software Engineer. He is the holder of an Australian Passport bearing No. HOI 7536.

(2.) In the affidavit filed in support of the writ petition, Srinivasa Rao Kumbhari, among other things, has alleged that his wife, Vijayalakshmi, the mother of the minor Aparna Kumbhari, had a malignant tumor, for which she was treated surgically by Dr. Michael K. Morgan at Sydney in Australia in August, 1991 and for a second surgery, she was taken to the United States by her brothers - T. Krishna and T. Anjaneyulu - and that even after the second operation at Sanfransisco on 1-6-1993, her health did not improve. She was brought back to Hyderabad by her brothers. His daughter, Aparna Kumbhari, who accompanied his wife from Australia to the United Stated also came back with her to India and the mother and daughter (Vijayalakshmi and Aparna Kumbhari) lived with respondents 2 to 5 in Hyderabad. His wife, Vijayalakshmi, died at Hyderabad in India on 8-2-1995. Before her death, she filed one petition, Original Petition No. 843 of 1993 under the Guardian and Wards Act, 1890, seeking a declaration that she be appointed as the guardian of the minor Aparna Kumbhari. He alleged that earlier he filed a suit in the Family Court in Sydney for the guardianship and custody of his child Aparna Kumbhari and obtained orders on 27-9-1993 to the effect that he is the sole guardian of his daughter Aparna Kumbhari. An interlocutory order was passed in I.A. No. 570 of 1993 in O.P. No. 843 of 1993 by the Additional Chief Judge, City Civil Court, Hyderabad (India) appointing Vijayalakshmi, the wife of Srinivasa Rao Kumbhari, as the guardian of the minor, Aparna Kumbhari. Challenging that order, Srinivasa Rao Kumbhari filed Writ Petition No. 1519 of 1994 in this Court seeking a writ of Prohibition. He also filed an appeal - Civil Miscellaneous Appeal No. 1018 of 1994 - in this Court questioning the legality of the order passed by the learned Additional Chief Judge. After the death of Vijayalakshmi, her parents, brother and sister-in-law - respondents 2 to 5 herein - filed Original Petition No. 181 of 1995 in the City Civil Court, Hyderabad (India) that one of them may be appointed as the guardian of the minor, Aparna Kumbhari. An interlocutory order in I.A. No. 148 of 1995 was passed by the learned judge of the City Civil Court injuncting Srinivasa Rao Kumbhari from proceeding in any manner for obtaining custody of the minor, Aparna Kumbhari pending disposal of the main case. Challenging the legality of the interim order, Srinivasa Rao Kumbhari filed Writ Petition No. 3851 of 1995 in this Court.

(3.) When the present writ petition - W.P. No. 3581 of 1995 - came up for hearing on 6-3-1995, this Court directed respondents 2 to 5 to produce the minor girl, Aparna Kumbhari, before this Court on 8-3-1995 at 10.30 A.M. Proceedings were held in camera on 8-3-1995. The statement of Aparna Kumbhari was recorded and after discussing the custody of the minor girl with Srinivasa Rao Kumbhari, his counsel Mr. J. Chalameshwar, the grand parents of the girl - respondents 2 and 3 - and their counsel Mr. Vilas Afzalpurkar, the Court, after observing the desire expressed by Aparna Kumbhari to be with her father, Srinivasa Rao Kumbhari, allowed him to have to custody of his daughter till Monday, 13-3-1995 and he was directed to produce the girl at 10.30 A.M. on 13-3-1995 before the Court for further hearing. As doubts were expressed by the grand-parents of the minor, Aparna Kumbhari, that the petitioner (Srinivasa Rao Kumbhari) may not turn up with the minor girl on 13-3-1995, Srinivasa Rao Kumbhari assured the Court that he would definitely attend the Court on that day i.e., 13-3-1995 and in proof of his bona fides, surrendered his passport and that of the minor, Aparna Kumbhari bearing Nos. HO1 7356 and K2772964 respectively. The Registrar (Judicial) of this Court was directed to keep both the passports in his custody.