Shaymaa Sumayaa vs State Of Telangana,

Heard Mr. M. Saleem, learned counsel for the petitioners, Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of respondent Nos.1 to 3 and Mr. S. Rama Mohan Rao, learned counsel representing Mr. Srinivasa Srikanth, learned counsel for respondent Nos.4 and 5.

This writ petition is filed to issue a writ of habeas corpus directing the respondent authorities to produce detenue i.e., Mrs. Ismath Saba W/o Mohammed Khaja Shamshoddin before this Court who is illegally detained and confined by respondent Nos.4 and 5 in the house of respondent No.4 and her life is at stake.

The petitioners are minor daughters of the alleged detenue. Respondent No.4 is the brother of the alleged detenue. Respondent No.5 is her daughter with her first husband.

i) The marriage of the alleged detenue, namely Ismath Saba, was performed with the father of the petitioners i.e., Mohammed Khaja Shamshoddin, on 03.12.2010. It is the second marriage to the alleged detenue. They blessed with two children i.e., the petitioners herein, aged about 10 years and 9 years. Both of them are studying in 6th Class. The first husband of the alleged detenue died on 18.06.2008. It is not in dispute that the alleged detenue is suffering from psychiatric problems. Respondent No.5 is her daughter with the first husband.

ii) It is the specific allegation of the petitioners herein that her mother is a partial mental illness person. She expressed her willingness to protect future rights of the petitioners by way of executing a Gift Settlement Deed in respect of the house property bearing No.3-1-492/1 (New), admeasuring 130 square yards, situated at New Raipura, Hanamkonda District, which is hereinafter called as ‘subject property’. She had executed a registered Gift Deed bearing document No.32081 of 2022, dated 30.12.2022 in favour of the petitioners, when her mental condition was stable and able to understand what she was doing at that time. In the said document, their father being the natural guardian represented them, so that he will take care of future needs of the maintenance and to protect their rights at the time they attain majority.

iii) It is further alleged by the petitioners that respondent No.4 is their maternal uncle and respondent No.5 is their step-sister born to their mother through her first husband. The subject property is situated adjacent to the house of respondent No.4. Due to mental condition of their mother, respondent No.4 and his family members never enquired about the welfare of their mother and never taken into his house. They never maintained family relations with the family of the petitioners. Their paternal grandmother and other family members are maintaining the petitioners and their mother in day-to-day life till now. Considerable amounts and gold were kept with respondent No.5 for her welfare at the time of second marriage of the alleged detenue.

iv) Respondent Nos.4, his wife and elder brother of respondent No.4 got an evil eye on the subject property to usurp it as it is situated adjacent to the house of respondent No.4. They came to the house of the petitioners on 25.07.2023 and asked their grandmother to send the mother of the petitioners with them as they wanted to take her to their house on courtesy and spend with her for some time, for which their grandmother objected. Despite resistance, they took the mother of the petitioners with them from the house of the petitioners. Since then, their mother is not permitting to meet the petitioners herein in spite of their requests and pleas to respondent Nos.4 and 5. The mother of the petitioners is illegally kept under their custody and they are also filing false cases against the petitioners’ family members to harass them. The gift document executed by their mother was by keeping in view of their future welfare and also future maintenance. No rights accrued to anybody by virtue of document except the petitioners, who are minors.

v) Respondent Nos.4 and 5 illegally detained the mother of the petitioners and not permitting them to see their mother and spend with her. Thus, their mother was illegally detained by respondent Nos.4 and 5 and the petitioners herein are apprehending danger to their mother’s life at the hands of respondent Nos.4 and 5. Therefore, the present writ petition.

Respondent No.5 has filed counter contending that she is the daughter of the alleged detenue with her first husband. Second marriage of the alleged detenue with the father of the petitioners was performed with a condition that respondent No.5’s well-being and day-to-day care has to be taken by respondent No.4 and his wife, as such, since the date of second marriage of her mother i.e., 03.12.2010, she is residing in the house of respondent No.4. In fact, for the last 13 years, her mother’s health condition has become worst than earlier due to negligence of the father of the petitioners. The allegation made by the petitioners that their mother was forcibly taken by respondent Nos.4 and 5 on 25.07.2023 is false and baseless.

i) The father of the petitioners has already issued legal notice dated 21.07.2023 to the mother of respondent No.5 - alleged detenue, respondent No.4 and his elder brother and also the Circle Inspector of Police, Hanamkonda Police Station, calling upon them to send the alleged detenue to join the conjugal society, failing which, he will take appropriate legal action. Therefore, the contents of the writ affidavit are contrary to the contents of the said legal notice. The mother of the petitioner herein is not in illegal detention of respondent Nos.4 and 5 as alleged. Respondent No.5 has already lodged a complaint against the father of the petitioners with Police, Hanamkonda, who in turn, registered a case in Crime No.368 of 2023 on 04.08.2023 for the offences punishable under Sections - 498A and 420 read with 34 of IPC. Investigation in the said crime is pending. Thus, the petitioners and their father are more interested in the subject property rather than the welfare of her mother. There is no detention, much less illegal detention of her mother. With the said contentions, she sought to dismiss the

Learned Special Government Pleader has produced written instructions dated 25.09.2023 of Sub-Inspector of Police, Hanamkonda Police Station, wherein it is specifically mentioned that respondent No.3 contacted respondent No.4 herein, who is the own brother of the alleged detenue on 25.09.2023 at 1.00 P.M. on his mobile to ascertain whereabouts of the alleged detenue. Respondent No.4 informed respondent No.3 that the petitioners along with their mother, brother and sister brought the alleged detenue to his house in May, 2023 and since then the alleged detenue is staying with him. Respondent No.5 has lodged a complaint with the police, Hanamkonda stating that the petitioners’ father, their grandmother, younger brother and sister of their father are harassing her mother mentally and physically since several years. She is taking treatment with a psychiatrist. Her mother was also issued Mental Disability Certificate. Taking undue advantage of her mother’s mental sickness, the petitioners got the subject property gifted in their favour by way of a registered Gift Deed bearing document No.32081 of 2022, dated 30.12.2022. The petitioners and their father are not taking care of their mother. Therefore, she along with her mother are staying with her maternal uncle i.e., respondent No.4 herein. It is further stated that the alleged detenue is a patient of psychological and she is unable to even speak. Her daughter, respondent No.5 herein, is speaking on her behalf about the treatment to the alleged detenue.

In view of the aforesaid submissions, we have interacted with the petitioners, their father and mother, respondent No.4, his brother and respondent No.5. We have heard learned counsel for the petitioners and learned counsel appearing for respondent Nos.4 and 5.

This is a writ of habeas corpus.  Proceedings in writ of habeas corpus are summary in nature. We have to decide the said writ petition basing on the affidavits filed by the parties. In the writ of habeas corpus, the only issue which we have to decide is whether there is any detention, much less illegal detention of the alleged detenue.

As discussed above, the marriage of the alleged detenue with the father of the petitioners was performed on 03.12.2010. It is second marriage to the alleged detenue. The alleged detenue’s first husband died 18.06.2008. Respondent No.5 is her daughter with her first husband. Respondent No.5 is aged about 20 years. The alleged detenue is blessed with two female children, the petitioners herein, with the second husband, Mr. Mohammed Khaja Shamshoddin. The petitioners are aged about 10 years and 09 years. The father of the petitioners, the second husband of the alleged detenue, met with an accident. He is also not in a position to walk properly. We have observed the same during our interaction with him. Both the petitioners are studying 6th Class.

It is relevant to note that the alleged detenue is suffering from mental disorder. The said fact is admitted by the petitioners, their father and respondent Nos.4 and 5. She is taking treatment. We have also observed the said fact during interaction of the alleged detenue, she has also confirmed the said fact and that she is taking treatment at present.

It is relevant to note that during the life-time of the first husband of the alleged detenue, respondent No.4 and his mother have executed a registered gift deed bearing document No.32081 of 2022, dated 30.12.2022 in favour of the alleged detenue. According to the alleged detenue, respondent No.4 and 5 and she is staying in the said house. She is also getting rents which are used to meet her expenses.

The house of respondent No.4 is also adjacent to the subject house.

It is the specific contention of respondent No.5 that the marriage of her mother with the father of the petitioners herein was performed with a condition that her well-being and day-to-day care has to be taken by respondent No.4 and his wife. Therefore, she is residing with respondent No.4. On the other hand, it is the contention of the petitioners that respondent Nos.4 and 5 took the alleged detenue forcibly on 25.07.2023 and they are expecting danger to her life in their hands. The gift deed was executed by the mother of the alleged detenue in her favour keeping in view her future and respondent No.5 and also for their maintenance. No rights accrued to anybody by virtue of the said document except the petitioners, who are minors.

During the course of interaction, it is brought to our notice that the alleged detenue, mother of the petitioners, is staying in the aforesaid house with respondent No.5. She is taking treatment. Respondent No.4 and his brother are providing treatment to the alleged detenue. The petitioners never showed any interest to see and meet their mother. They have filed the present writ petition at the instance of their father to knock away the subject property. Thus, the  aforesaid facts would reveal that the disputes are with regard to the subject property.

Mr. M. Saleem, learned counsel for the petitioner, specifically contended that respondent No.4, his brother and respondent No.5 are trying to knock away the subject property taking advantage of mental condition of the alleged detenue. They are not permitting the petitioners to stay with their mother. They have illegally detained the mother of the petitioners and that the petitioners are ready to join the mother of the petitioners.

Mr. S.Rama Mohan Rao, learned counsel for respondent Nos.4 and 5, would contend that the petitioners along with their father can join the alleged detenue, mother of the petitioners, in the subject property. In fact, the father of the petitioners obtained a registered gift deed bearing document No.32081 of 2022, dated 30.12.2022 by taking advantage of mental condition of the alleged detenue. However, the petitioners being minors can enjoy the subject property. At the same time, it is the duty of the alleged detenue to take care of respondent No.5.

It is relevant to note that in the legal notice dated 21.07.2023, the father of the petitioners narrated the entire facts and also the fact that the alleged detenue is suffering from psychiatric disorder, he is handicapped person and that the subject property was bequeathed in the name of the alleged detenue. He has also agreed to take care of respondent No.5 and they have fixed an amount of Rs.50,000/- for her future, and also kept 15 tolas of gold ornaments for her better future. But, the subject property will be the property of the father of the petitioners and his wife (alleged detenue). As promised, respondent No.4 and his brother handed over the original gift deed bearing document No.21 of 2001 to the father of the petitioners. The father of the petitioner and the alleged detenue were leading happy marital life by enjoying the fruits of the gifted property to the alleged detenue as joint owners and were receiving the rents. He has spent some money for repairing the said house. They have also stated about the execution of registered gift deed by the alleged detenue in favour of the petitioners.

In the month of May, 2023, respondent No.4 came to his house, forcibly took the alleged detenue with him when he was not present in the house leaving two children. Thus, they have not taken care of the welfare of the alleged detenue.

It is further stated by the father of the petitioners in the said legal notice dated 21.07.2023 that as the rates of the properties have been hiked, taking advantage of his adjacent property, respondent No.4 with an intention to grab the subject property, forcibly taken the alleged detenue with him and illegally confined her in the house. They are also pressuring the father of the petitioners to surrender the documents pertaining to the subject property. Thus, the apprehension of the father of the petitioners is that respondent No.4 may grab the subject property. However, the petitioners have not filed any rejoinder/reply to the counter filed by respondent No.5.

As discussed above, we have interacted with the petitioners, their father, mother (alleged detenue), respondent No.4 and his brother and also respondent No.5. During interaction, the alleged detenue explained her health condition and that respondent No.4 and his brother are providing treatment to her at Hyderabad. She is comfortable. They never ill-treated her as alleged by the petitioners. In fact, the father of the petitioners harassed her. Therefore, through respondent No.5 she has filed a complaint with the police. In the complaint, dated 04.08.2023 also, respondent No.5 alleged that the father of the petitioners obtained the aforesaid gift deed in the name of the petitioners from her mother illegally by taking advantage of her health condition. Thus, she sought to cancel the said gift deed. According to respondent No.5, at the time of second marriage of her mother with the father of the petitioners, it was specifically agreed that respondent No.4 and his brother have to take care of her. It is also apt to note that the mother of the alleged detenue and respondent No.5 have executed a gift deed in her favour during life time of her first husband, the father of respondent No.5, keeping the health condition of the detenue and welfare. However, the alleged detenue has already executed a registered gift deed in favour of the petitioners. According to respondent No.5, the said gift deed was obtained by playing fraud taking advantage of health condition of her mother. Therefore, it is for respondent No.5 to take steps in accordance with law.

The aforesaid facts would reveal that there is no detention, much less illegal detention of the alleged detenue, the mother of the petitioners. There are disputes with regard to the subject property. The petitioners herein are minors and respondent No.5, the daughter of the alleged detenue with first husband is a student. It is the duty of the alleged detenue to take care of three daughters. During the course of hearing, learned counsel for the petitioners informed this Court that the petitioners are ready to join the company of their mother and stay with her in the subject house along with their father, and a direction may be given to respondent No.4 and his brother and also respondent No.5 not to create any problem. The same is only an apprehension. Nothing prevented the petitioners and their father to join the company of the alleged detenue in the subject house. If respondent No.4, his brother and respondent No.5 create any problem, they can take steps in accordance with law. In the present writ of habeas corpus we cannot decide property disputes. The petitioners are trying to settle the property dispute by way of filing this writ petition, which is impermissible.

As discussed above, the petitioners are minor daughters. Their father is handicapped. He met with an accident. Their mother is suffering from mental disorder. She is on treatment. Respondent No.5 is a student. Considering the said aspects, the mother of the alleged detenu bequeathed the subject property in favour of the alleged detenue by way of executing the aforesaid gift deed. Therefore, the petitioners along with their father, mother and respondent No.5 can stay in the said house without creating any hurdles or problems with each other. In the light of the health condition of the alleged detenue, her welfare is paramount consideration in the present writ petition.

In the light of the aforesaid discussion, we are of the considered opinion that there is no detention, much less illegal detention of the alleged detenue. Therefore, the present writ petition is disposed of with the following directions:

i) The petitioners along with their father are at liberty to join the company of the alleged detenue in the subject house. Respondent No.4, his brother Mr. Mirza Kaleem Baig and respondent No.5 shall not create any problem. If they create any problem, liberty is also granted to the petitioners and their father to take necessary steps in accordance with law.

ii) Liberty is also granted to respondent No.5, to stay with her mother in the subject house. The petitioners, their father and respondent No.4 and his brother shall not create any problem for the same. If any problem is created, liberty is also granted to respondent No.5 to take necessary steps in accordance with law.

iii) The petitioners, their father, respondent No.4, his brother and respondent No.5 shall take care of the alleged detenue.

In the circumstances of the cases, there shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.