Syed Saleemuddin
Vs. Dr. Rukhsana & Ors [2001] Insc 237 (19 April 2001)
D.P.
Mohapatra & Brijesh Kumar D.P.Mohapatra, J.
Leave
granted.
L.I.T.J
The
appellant is the husband of the respondent no.1.
They
were married on 7.12.1993. They have two children, a daughter named Ayesh Fathima
aged 6 years and a son named Sayeed Zaiduddin aged 5 years. The appellant is a
businessman and the respondent No.1 is a doctor practising Ayurvedic medicine.
On 26th March 2000, the respondent no.1 sustained burn
injuries when she was in her house. On the next day she was admitted in Princess Duru Shehvar Children & General Hospital, Hyderabad. On receiving intimation from the incharge
of the hospital Sub-Inspector Ravindra of the Police Station Habeeb Nagar went
to the hospital and recorded the statement of the respondent. The said
statement was registered as FIR No.54/2000 on 28th March 2000 at 7.30
p.m. with Habeeb Nagar
Police Station.
Thereafter
on 10.4.2000 the first respondent filed a writ petition, writ petition
No.6017/2000, in the High Court of A.P. with the following prayer :
For
the reasons and in the circumstances stated in the accompanying Affidavit, the
petitioner herein prays in the interests of justice, that this Honble Court may
be pleased to issue an order or direction more in the nature of Writ of Habeas
Corpus, directing the release of the petitioners minor children namely Ayesh Fathima
and Syeded Zaiduddin who are under the custody of the 3rd respondent at present
and set them at liberty and pass such other and further order or orders as this
Honble Court may deem fit and proper in the circumstances of the case.
The
State of Andhra Pradesh represented by its Principal
Secretary (Home) Police Department, the Station House Officer of Habeeb Nagar
Police Station and Syed Saleemuddin, the appellant herein, were cited as the
respondents 1 to 3 respectively in the writ petition. In the writ petition, the
respondent No.1 sought intervention of the Court for getting custody of the
children who were then living with their father, the appellant. The High Court
by its order dated 12.4.2000 directed the SHO Habeeb Nagar Police Station to
produce the appellant along with two children before the Court on 17.4.2000 at
10.30 a.m. In compliance with the said order the appellant and the two children
were produced before the Court on the date fixed. On the same day the High
Court directed the Metropolitan Sessions Judge, Hyderabad along with the Secretary of the Andhra Pradesh High Court
Legal Services Committee to go to the hospital and meet respondent no.1. The
Sessions Judge in compliance with the said order went to the hospital and
recorded the statement of the respondent no.1.
The
High Court disposed of the case by the judgment rendered on 18.4.2000. In para
3 of the judgment it is stated that the Habeas Corpus petition was moved at the
instance of the maternal uncle of the children i.e. the younger brother of Dr. Rukhsana
Saleem stating that it was a case of dowry harassment and consequent attempt of
the appellant to kill her by setting her afire by pouring petrol. In para 4 of
the judgment the High Court took note of its order dated 17.4.2000 deputing the
Metropolitan Sessions Judge and the Secretary of the Andhra Pradesh High Court
Legal Services Committee to go to Princess Duru Shehvar Children & General
Hospital, Hyderabad and examine the lady and also noted that the lady had given
a detailed statement which was recorded by the Metropolitan Sessions Judge. As
noted in the judgment of the High Court the lady also stated that the previous
statement recorded by the S.I. of Police Ravindra was made under threat. In
paragraph 5 of the judgment the High Court discarded the report of the Sub-
Inspector of Police, Habeeb Nagar Police Station, Ravindra.
Paragraphs
6 to 10 in which directions given by the High Court to different authorities of
the State are quoted hereunder:
6.
Having given our anxious consideration to the matter, we direct the Station
House Officer of Women Police Station, CCS, to register the statement which is
being handed over as FIR by giving the appropriate Crime number and then
investigate into the matter and take necessary action in accordance with law.
7. In
so far as the custody of the children is concerned, we direct that the same
shall remain with the mother, namely, Dr. Rukhsana Saleem, and temporarily with
the deponent of the third party affidavit i.e. Mr. Irfanulla, and we feel that
Mr. Irfanulla, who is no other than the maternal uncle of the children will
take care of them. But Mr. Irfanulla has to summon his mother from Dubai as promised by him within two days,
so that she takes care of not only the children but also Dr. Rukhsana Saleem,
being a lady and laid up with burn injuries. We also direct the Superintendent
of Princess Duru Shehvar Children's & General Hospital, Hyderabad to allocate a special room to Dr. Rukhsana Saleem and
whenever she wants to see the children, the children be taken to her by Mr. Irfanulla.
8. Dr.Rukhsana
Saleem was a Practicing Doctor in Ayurveda and she was earning considerable
income. Now she became temporarily incapacitated because of the burn injuries
sustained by her. Mr.Syed Saleemuddin, who is the 3rd respondent herein, is
directed to deposit an amount of Rs.1.00 lakh with the Registrar (Judicial) in
four instalments and the first of such instalments shall be made within one
week and the rest of the installments one week each thereafter. The Registrar
(Judicial) then will ask the Superintendent of Princess Duru Shehvar Children's
& General Hospital, Hyderabad as to the expenses incurred in the
treatment of Dr. Rukhsana Saleem and after meeting the same, the remaining
amount shall be paid over to Dr. Rukhsana Saleem. If the amount as ordered
above is not deposited, then the Registrar (Judicial) shall transmit the file
to the Court of the Chief Judge, City Civil Court, who shall execute this order
as a decree under the provisions of the Code of Civil Procedure as also the
Civil Rules of Practice and if necessary by causing arrest of the 3rd
respondent.
9. For
the reasons stated above, we direct the Commissioner of Police to initiate
appropriate disciplinary proceedings against Mr. Ravindra, S.I. of Police, Habeeb
Nagar Police Station, Hyderabad and then Enquire into the matter after
affording opportunity to him and dispose of the same within a period of four
months from the date of receipt of a copy of this order.
10.
Liberty for the 3rd respondent to file petition before the Family Court,
Hyderabad to visit the children, after a period of one month. The writ petition
is accordingly disposed of.
This
judgment is under challenge in this appeal filed by the father of the children
by special leave. Shri M.N.Rao, learned senior counsel appearing for the
appellant submitted that the High Court has seriously erred in travelling
beyond the scope of the enquiry in the Writ Petition. Shri Rao contended that
the writ petition was filed seeking a writ of Habeas Corpus and for transfer of
custody of the two children from their father to their mother. For deciding the
case it was not necessary for the High Court to embark on an inquiry about the
recording of the statement of the injured; nor was it relevant for the purpose
of the case to deal with the question relating to investigation by the police.
It is relevant to note here that by the date of filing of the writ petition FIR
No.54/2000 had already been registered at Habeeb Nagar Police Station on the
basis of the statement of the respondent no.1 recorded by the S.I. of Police,
Ravindra. Shri Rao fairly submitted that the appellant has no objection if the
children are left in the custody of the respondent No.1 till the Family Court
considers the petition filed by the appellant for their custody. Shri Rao also
fairly stated that the appellant has paid certain amount for treatment of the
respondent No.1 at the Princess Duru Shehvar Children & General Hospital, Hyderabad and is willing to pay the entire
expenditure for her treatment at the hospital.
Shri P.S.Narsimha,
learned counsel appearing for the respondent No.1 strenuously urged that this
Court should not interfere with the judgment/order under challenge. The High
Court has merely directed the police to register an FIR on the basis of the
subsequent statement of the respondent No.1 recorded by the Metropolitan
Sessions Judge, Hyderabad and investigate into the matter. He
further submitted that in pursuance of the directions contained in the Judgment
under challenge the Police has registered Crime No.108/2000 and recorded the
statement of some persons. According to Shri Narsimha the order passed and the
directions issued by the High Court are within its power and jurisdiction while
dealing with the Habeas Corpus petition, and therefore, no interference with
the Judgment is warranted.
A
Constitution Bench of this Court in the case of Kanu Sanyal vs. District
Magistrate, Darjeeling and others (1973 (2) SCC 674) dealing with the nature
and scope of a writ of Habeas Corpus observed :
It
will be seen from this brief history of habeas corpus that it is essentially a
procedural writ. It deals with the machinery of justice, not the substantive
law. The object of the writ is to secure release of a person who is illegally
restrained of his liberty. The writ is, no doubt, a command addressed to a
person who is alleged to have another person unlawfully in his custody
requiring him to bring the body of such person before the Court, but the
production of the body of the person detailed is directed in order that the
circumstances of his detention may be inquired into, or to put it differently,
in order that appropriate judgment be rendered on judicial enquiry into the
alleged unlawful restraint. The form of the writ employed is We command you
that you have in the Kings Bench Division of our High Court of Justice
immediately after the receipt of this our writ, the body of A.B. being taken
and detained under your custody together with the day and cause of his being
taken and detained to undergo and receive all and singular such matters and
things as our court shall then and there consider of concerning him in this
behalf. The italicized words show that the writ is primarily designed to give a
person restrained of his liberty a speedy and effective remedy for having the
legality of his detention enquired into and determined and if the detention is
found to be unlawful, having himself discharged and freed from such restraint.
The most characteristic element of the writ is its peremptoriness and, as
pointed out by Lord Halsbury, L.C. in Cox v. Hakes (supra), the essential and
leading theory of the whole procedure is the immediate determination of the
right to the applicants freedom and his release, if the detention is found to
be unlawful. That is the primary purpose of the writ; that is its substance and
end.
This
Court in the case of Gohar Begam v. Suggi Alias Nazma Begam and others (1960(1)
SCR 597) dealt with a petition for writ of Habeas Corpus for recovery of a
illegitimate female infant of an unmarried Sunni Muslim mother, took note of
the position under the Mohammedan Law that the mother of an illegitimate female
infant is entitled to its custody and the refusal to restore such a child to
the custody of its mother would result in an illegal detention of the child
within the meaning of Section 491 of the Criminal Procedure Code. This Court
held that the dispute as to the paternity of the child is irrelevant for the
purpose of the application and the Supreme Court will interfere with the
discretionary powers of the High Court if the discretion was not judicially exercised.
This Court further held that in issuing writs of Habeas Corpus the Court have
power in the case of an infant to direct its custody to be placed with a
certain person.
From
the principles laid down in the aforementioned cases it is clear that in an application
seeking a writ of Habeas Corpus for custody of minor children the principal
consideration for the Court is to ascertain whether the custody of the children
can be said to be unlawful or illegal and whether the welfare of the children
requires that present custody should be changed and the children should be left
in care and custody of somebody else. The principle is well settled that in a
matter of custody of a child the welfare of the child is of paramount
consideration of the Court. Unfortunately, the Judgment of the High Court does
not show that the Court has paid any attention to these important and relevant
questions. The High Court has not considered whether the custody of the
children with their father can, in the facts and circumstances, be said to be
unlawful. The Court has also not adverted to the question whether for the
welfare of the children they should be taken out of the custody of their father
and left in the care of their mother. However, it is not necessary for us to
consider this question further in view of the fair concession made by Shri M.N.
Rao that the appellant has no objection if the children remain in the custody
of the mother with the right of the father to visit them as noted in the
judgment of the High Court, till the Family Court disposes of the petition
filed by the appellant for custody of his children.
Coming
to the observation made by the High Court discarding the statement of the
respondent recorded by the Sub-Inspector of the Habeeb Nagar Police Station, Ravindra
and the directions to the SHO of the said Police Station to register statement
recorded by the Metropolitan Sessions Judge Hyderabad as FIR is clearly
unsustainable. No reason has been given by the High Court in the order as to
why the previous statement recorded by the Police Officer should be discarded.
Since the information about the incident had already reached the police and on
getting the said information the Police Officer visited the hospital and
recorded the statement and FIR No.54/2000 had already been registered on the
basis of that statement that is to be treated as the FIR in the case and any
subsequent statement made by the informant/complainant can only be taken as a
statement in course of the investigation. No reason is stated and we are at loss
to understand why the High Court felt that the unusual and extraordinary step
of asking the Metropolitan Sessions Judge accompanied by another Judicial
officer the Secretary of the Andhra Pradesh High Court Legal Services
Authority, should be directed to record the statement of the injured. The case
as noted earlier was one relating to custody of children for disposal of which
neither was it necessary for the High Court to take such an unusual step nor
was the matter relating to investigation into the criminal case relevant for
deciding the case. The procedure followed by the High Court does not commend
us.
From
the conspectus of the discussions made and the reasons stated in the
aforementioned paragraphs, it is clear that the order of the High Court is unsustainable
and has to be vacated. Accordingly, the appeal is allowed and the
judgment/order of the High Court dated 18.4.2000 in W.P.No.6017/2000 is set
aside. In view of the fair concessions made by Shri M.N.Rao, learned senior
counsel appearing for the appellant, it is ordered that the custody of the two
children will remain with their mother, who is respondent no.1 herein, till the
Family Court disposes of the petition filed by the appellant for their custody.
It is further ordered that the appellant shall pay the amount spent for
treatment of the respondent no.1 in Princess Duru Shehvar Children
& General Hospital, Hyderabad. If any amount is yet to be paid, the appellant shall pay
the same within one month. In the circumstances of the case, there will be no
order for costs.
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