Challa Hanumanthu vs Bathula Veera Babu

This Civil Revision Petition is filed by the revision petitioners/respondents against the order dated 13.06.2023 passed in I.A.No.18 of 2022 in G.W.O.P.No.36 of 2021 by the learned IV Additional District Judge at Nalgonda.

G.W.O.P.No.36 of 2021 was filed by one Bathula Veera Babu/respondent herein against his in-laws for the custody of his minor son Bathula Pranav aged about 6 years and daughter Bathula Janvi Sree aged about 4 years. During the pendency of G.W.O.P.No.36 of 2021, he had also filed I.A.No.18 of 2022 seeking interim custody of the children. The trial court granted interim custody of the minor children to the respondent/petitioner pending disposal of the main G.W.O.P and directed the petitioners herein to handover the minor children to the respondent/petitioner within 15 days from the date of the said order. Aggrieved by the said order, respondents therein preferred the present Civil Revision Petition.

The learned counsel for the petitioners/respondents contended that the Guardian O.P was filed in Nalgonda District, but the minor children are residing at Ponnekallu Village, Kamepally Mandal of Khammam District. As per the proviso of Section 9 of Guardian and Wards Act, 1890, the District Judge, Nalgonda has no jurisdiction to entertain the main G.W.O.P, so also the present Interlocutory Application, as such the orders in the Interlocutory Application are not within the jurisdiction. He further contended that the petitioner is facing criminal charges in Cr.No.194 of 2021 under Section 498-A and 306 of Indian Penal Code r/w 3 and 4 of Dowry Prohibition Act, as such the trial court ought not to have allowed the petition. The trial court granted interim custody till the disposal of the main G.W.O.P and it amounts to allowing of the G.W.O.P itself by virtue of the Interlocutory Application, which is contrary and against the settled principles of law. Before allowing the Interlocutory Application the trial court failed to examine the minor children, which is pre-requisite for the Section 12 of Guardian Wards Act, 1980. It was also observed in para No.19 of the Order that “Though the children are not willing to go with their father”. Even then the trial court allowed the petition and it causes irreparable injury to the children. He also stated that the petitioners are financially settled and they are providing good education and facilities to the minor children. Whereas, the respondent/petitioner is facing criminal charges and he is on bail. If the criminal charges are confirmed the future of the children will be again put to stake. One of the children is a minor girl, who has not attained puberty and as per the settled principles of law, the grandmother (mother’s mother) is having the preferential right over her father in such case petitioners are taking care of the minor children out of their natural love and affection, when the respondent family denied their responsibility towards children. Therefore, prayed to set aside the order of the trial court.

The parties herein are referred as petitioner and respondents as arrayed in the trial court for the sake of convenience.

The marriage of the petitioner with Bathula Sandhya was solemnized on 06.05.2013 and after marriage they started residing at Nalgonda Town and out of their wedlock they were blessed with one male child Bathula Pranav aged about 06 years and one female child Bathula Janvi Sree aged about 04 years. The petitioner is working at Nalgonda Police Head Quarters as AR Constable. On 24.05.2021, when petitioner went to duty, his wife has committed suicide by hanging to the ceiling fan with chunni in the house and on seeing the same, the children have informed to the neighbours and they rushed to the spot and found her dead body, as such, his brother-in-law Challa Nageshwara Rao (respondent No.3 herein) gave complaint and stated that previously the petitioner and his family members harassed the deceased Sandhya physically and mentally for additional dowry. Whereas the petitioner contended that she developed illegal intimacy with one Nagendra Babu, who is also an AR constable and neighbour of the deceased. Petitioner and his family members have noticed the whatsapp text messages of the deceased with the said Nagendra Babu and came to know about their illegal intimacy and as the said secret relationship came to light, she might have committed suicide. To cover up the illegal intimacy, respondent No.3 lodged a false report against the petitioner in Cr.No.194 of 2021 for the offences punishable under Sections 498-A and 306 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act.

The petitioner was remanded to judicial custody on 25.05.2021 in Crl.M.P.No.204 of 2021 on 04.06.2021. When he was in jail, respondent Nos.1 to 3 along with their henchmen have forcibly took away his children from the custody of his parents from his house at Nalgonda Town. After releasing on bail, he went to the house of respondent Nos.1 to 3 on 13.06.2021 to take back his children to his house, but the respondent Nos.1 to 3 along with their relatives did not allow him to see his children and refused to sent them along with him and the respondent Nos.1 to 3 threatened him with dire consequences and denied to handover the children to him. In the month of July, 2021, he tried to place the matter before the elders as the respondent Nos.1 to 3 were trying to separate his children from him and not allowing him to see them, but the respondent Nos.1 to 3 dodged the matter on one pretext or the other. On 15.09.2021, he came to know that respondent Nos.1 to 3 ill-treating the minor children petitioner is the natural guardian of his children and he is a Graduate and working as an AR Constable at Nalgonda Police Head Quarters and earning good enough to provide good education and good standard of living to his children. Whereas, the respondent Nos.1 to 3 are illiterates and living in a small village and they have no sufficient income. He has been depositing Rs.4,000/- per month towards LIC policies of his children. The petitioner further submits that his parents and brother are hale and healthy and willing to look after the needs of the minors in his absence. Respondent Nos. 1 to 3 are not providing basic necessities and therefore, requested for the interim custody.

Respondent Nos. 1 to 3 stated that they are the maternal grandparents and they are looking after the children with proper love and affection. Petitioner never approached them to take back his children even after his release. They are providing quality education and future of the children is safe in their hands and stated that Respondent Nos.1 and 2 health condition is good and earning good income. The petitioner tried to kidnap the children with the aid of anti-social elements. Respondents are having fertile lands and providing peaceful atmosphere to the children. The petitioner is young person having 35 years and there is every possibility of  contacting second marriage, as such the second wife may not treat the minors properly, therefore, putting the minors in the lap of the petitioner is highly dangerous and prayed to set aside the order of the trial court.

The trial court considering the rival contentions of both sides opined that the respondent Nos.1 and 2 are aged about 56 and 50 years respectively as on the date of filing the petition. The trial court observed that though the children are not willing to go with their father but interest and welfare of the children is to be paramount consideration for their education and other necessities required in their lives and accordingly granted interim custody to the petitioner/father.

Admittedly, a criminal complaint is pending against the petitioner and he is on bail. No doubt, he is a Graduate and working as AR Constable in Nalgonda District. Whereas, the grandparents of the minor children are residing in the village, but immediately after the death of their daughter they have taken care of their grandchildren and joined them in a school and provided basic amenities to them. Petitioner stated that his parents are also residing with him and they will take care of the children, but the children informed that no one available to look after them, as their paternal grandparents are also attending labour work, as such they could not take care of them. Admittedly, for more than 2 years, the children are residing with their maternal grandparents and very much attached to them and they are under the influence of their maternal grandparents and they are not willing to go with their father. As the father filed G.W.O.P for custody of the minor children, it is for the trial court to grant custody after completion of entire evidence on merits. As this is an interim application, visitation rights can be granted once in a month i.e., on first Sunday of every month. The petitioner is at liberty to take the children by 10:00 am in the morning and handover them to the maternal grandparents by 5:00 pm.

In the result, the Civil Revision Petition is allowed by setting aside the order of the trial court passed in I.A.No.18 of 2022 in G.W.O.P.No.36 of 2021 by the IV Additional District Judge, Nalgonda. As the father of the minor children already filed G.W.O.P for custody of the minor children, he is entitled for visitation rights and he is at liberty to take his children along with him on first Sunday of every month by 10:00 am and to handover the children by 5:00 pm to the maternal grandparent. However, trial Court is directed to dispose of the G.W.O.P itself as expeditiously as possible to avoid further complications in the execution of the visitation rights. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand disposed of.