Writ Petition No. 908 of 2025 · Bombaybench High Court · 2025
Case Details
Ethape( 1 ) Cri. WP-908-2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.908 OF 20251. Sau. Payal w/o. Punit Bandi @Payal Naresh Doshi,Age : 34 Years, Occu: Nill.2. Tanish s/o. Punit Bandi,Age: 4.5 years, Occu: Education,Minor Through His Natural GuardianMother the petitioner No.1. Both R/o. C/o. Naresh Kanakkumar Doshi279/4, Shantikunj, Kargaon Road,Infront of Dr. C. T. Pawar Hospital,Chalisgaon, Taluka: Chalisgaon,Dist : Jalgaon....PETITIONERSV E R S U S1]Punit Anil Bandi,Age : 40 years, Occu: Service2]Shashi Anil Bandi,Age: 64 years: Occu: Household3]Anil Chandmalji Bandi ,Age: 67 years, Occu; BusinessAll R/o. 285, Ushanagar, Extension,Infron of Hanuman Temple, Indore,State – Madhya Pradesh. ...RESPONDENTS
Legal Reasoning
Ethape( 2 ) Cri. WP-908-2025Mr. S. V. Suryawanshi a/w Mr. Sayyed Rafik Ahmed and Mr. Sayyed ArifRafit, Advocates for the petitioners. Mr. Sunil Varma h/f Mr. P. P. Jadhav, Advocate for Respondent Nos. 1 to3. CORAM:KISHORE C. SANT, J.DATE: 15th JULY 2025. PC :-1.Heard the learned Advocate for the petitioners and learnedAdvocate for Respondents. The petition is taken up for final disposal, atthe stage of admission, with the consent of the parties. 2.This Court, vide its order dated 15th July 2025, has alreadydictated the operative order looking to the urgency involved in thematter. 3.The petitioner-wife has come to this Court challenging thejudgment and order dated 26th June 2025, passed by the learnedAdditional Sessions Judge, Jalgaon, in Criminal Appeal No. 45 of 2025thereby dismissing the appeal filed by the present petitioners. 4.By way of impugned judgment and order, the learned AdditionalSessions Judge, confirmed the order dated 23rd May 2025, passed by the Ethape( 3 ) Cri. WP-908-2025learned JMFC Court No.2, on an application below Exhibit-15 in PWDVAApplication No.5 of 2025. 5.The petitioner No.1 is wife, and petitioner No.2 is son ofrespondent No.1. Respondent No.1 is the husband of petitioner No.1.Respondent No.2 and 3 are mother-in-law and father-in-law of petitionerNo.1. 6.It is the case that petitioner No.1-wife and Respondent No.1-husband got married on 31st December 2014 at Indore (M.P.). Thecouple resided in the USA. The petitioner No.2 is born out of thewedlock. It is alleged that the respondents committed domestic violenceand drove the petitioner out of house. They did not allow the petitioner-wife to stay in the joint family. The wife, therefore, had to stay at herparent’s house at Chalisgaon, from where she filed a proceeding underthe Protection of Women from Domestic Violence Act in the Court atChalisgaon. She has also filed proceeding under Section 498-A of IPCand under Section 125 of Cr. P. C., which are pending. Both the partiesare well-educated. The husband is also an engineer from IIT. He has also Ethape( 4 ) Cri. WP-908-2025done Ph.D. The wife is also a master of science. 7.After few days of the marriage, the husband went to USA byleaving the wife in India. After few years, the petitioner also jointed himon 14th January 2015. It is alleged that there were also some instances ofdomestic violence took place. For some period, even the respondent Nos.2 and 3 stayed in USA. Ultimately, the couple required to come back toIndia, where it is alleged that the harassment started. On theseallegations, the proceeding is filed. 8.After coming to Indian, the wife started trying to pursue furthereducation and now she got admission to the Western Sydney Universityat Australia for the course of Master of Artificial Intelligence (Research)Program. Since the child is aged 4.5 years, she needs to take her child toAustralia. However, for that purpose, she needs a consent of the husbandfor taking a child to Australia, which the husband refused. It is for thatpurpose, the petitioner filed an application at Exh.15, seekingdirection/permission for the husband to give his consent for the child togo to Australia. Ethape( 5 ) Cri. WP-908-20259.It is case of the petitioner that the necessary formalities arecompleted and the education expenses are to be borne by the father ofpetitioner No.1. Even the mother of petitioner No.1 has decided to go toAustralia with her. The learned JMFC, however, refused the permissionobserving that it is not in the interest of the child to go to Australia byorder dated 23rd May 2025 which made the petitioner to approach thelearned Sessions Judge, Jalgaon. The learned Sessions Judge endorsedthe order passed by the learned trial Court and rejected the revision. It isthe case of the petitioner that it is in the welfare and it is in the interestof child to take him to Australia and since he is aged is below 5 years,therefore, his custody has to be with the mother. The petitioners have noobjection for the father to be in touch with the child. The arrangementof school admission of the child is also made, and thus, there is no anyhurdle except the permission/consent from the father. Father ofpetitioner No.1 has filed affidavit stating that he would bear theexpenses in Australia for the education. One cousin of the wife alsoresides in Australia. Thus, she has support in Australia. It is argued thatthe Court ought to have considered this aspect and ought to have Ethape( 6 ) Cri. WP-908-2025allowed the application and revision. 10.The learned Advocate for Respondent vehemently argued that theparties resided in USA. The problem started only when the husbandexpressed a desire to come back to India. Till 2024, the couple residedwell in USA. On 23rd October 2024, the husband came to India. Aftercoming to the India, now the wife has filed present proceeding on 8thJanuary 2025. Immediately within eight days, she filed anotherproceeding under Section 125 of Cr.P.C. on 14th January 2025. Thehusband has a strong desire to stay with the petitioner. He, therefore,filed petition under Section 9 of the Hindu Marriage Act in the Court atIndore on 18th January 2025. The wife filed one more proceeding.Thereafter, She also lodged FIR on 1st May 2025 at Chalisgaon policestation just to falsely implicate the in-laws and bring upon them apressure. In fact, the husband has desire to compromise. Initially, noaffidavit of father of the petitioner was filed. Now, it is only in theappeal, the affidavit came to be filed. There is also question ofjurisdiction with the Court. Both the courts have rightly considered the
Decision
Ethape( 7 ) Cri. WP-908-2025circumstances and have rightly refused to allow the application and theappeal. This Court need not exercise the jurisdiction under Article 226 ofthe Constitution of India when no jurisdictional error is pointed out. 11.On factual aspect it is submitted that, on one hand, the wife hasfiled proceeding under Section 125 of Cr. P.C. seeking maintenance fromthe husband, and on the other hand, she has taken admission to theUniversity in Australia. Though the father of the petitioner has given anaffidavit, however, he has not shown his financial capacity to bear theexpenses of education of the petitioner. While going to Australia with thechild, there is no one to look after the child. It is mainly argued that fourcases are presently pending in the Court in India. Out of these fourcases, three are filed by the wife. The wife, after filing the proceeding,now wants to go to Australia. The husband will still have to face theproceedings. The husband also argued that the Court has to look fromthe view of the parents of the child under the principles of Parens Patriaejurisdiction. He, thus, prays for rejection of the writ petition. Ethape( 8 ) Cri. WP-908-202512.In support of his submission, the learned Advocate for theRespondent relied upon the following judgments:(i)Jai Singh and Ors. Vs. Municipal Corporation of Delhi and Anr.1 (ii)Dhaval Rajendra Soni Vs. Bhavini Dhavalbhai Son and Ors.2(iii)Surendra Pal and Ors. Vs. State of Uttar Pradesh and Anr.3;(iv)Gaurav Nagpal Vs. Sumedha Nagpal4;(v)Yashita Sahu Vs. State of Rajasthan and Ors.5(vi)Mausami Moitra Ganguli Vs. Jayant Ganguli6;(vii)Janaki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors.7 13.This Court has considered the submissions. Presently, the questionis only about the consent by the father of the child to go Australia withmother. This Court has no difficulty in accepting that the career of thewife is important. She cannot be refrained from prosecuting her studies.The child is presently below five years and the custody should normallybe with the mother. In the present case, the question has arisen as thewife also wants to take son with her. The question is only whether the1(2010) 9 SCC 38522011 SCC OnLine Guj 8993(2010) 9 SCC 3994(2009) 1 SCC 425(2020) 3 SCC 676(2008) 7 SCC 6737(2005) 2 SCC 217 Ethape( 9 ) Cri. WP-908-2025mother be allowed to go with the child to Australia. The apprehensionexpressed by the husband are because of his concern as a father. 14.During the course of argument, this Court suggested parties to gofor mutual settlement and to give the minutes. Parties have alsoprepared consent terms. There was a dispute about few terms. However,the Court passed an operative order. It is thereafter informed that thepetitioner-wife was to join the course in the month of July – August2025. However, because of the pendency of the proceeding, she couldnot join immediately and now, her course will start in the month ofMarch – April 2026. 15.In the case of Jai Singh and Ors. (supra), relied upon by therespondent is about scope available to this Court for exercise of powerunder Article 227 of the Constitution of India. This Court need not gointo the same. In the case of Dhaval Soni (supra), the question wasabout the custody of the child. The High Court of Gujarat looking to theorder passed by the trial Court did not interfere with the order. In thecase of Gaurav Nagpal (supra), it is held that the welfare of child is Ethape( 10 ) Cri. WP-908-2025paramount consideration while determining the issues relating to childcustody and visitation rights. It is further held by the Hon’ble Apex Courtthat the court has to approach with a mature and humane approachwhen conflicting demands are made by the parties. In the case of YashitaSahu (supra), writ petition was filed under Article 226 of theConstitution of India as a habeas corpus petition. The Hon’ble ApexCourt held that welfare of the child is paramount consideration. It isheld that a child requires love and affection of both the parents. Thevisitation rights needs to be given to both the parents. In the case ofMausami Moitra Ganguli (supra), the question was again about thecustody of a minor child. It is reiterated that the welfare of the child isparamount consideration. In the case of Janaki Bhojwani (supra), isabout the power of attorney holder to “act” on behalf of principal. 16.In the present case, the main issue is of allowing child to go withhis mother to Australia and visitation rights. As already stated above,both the parties have given their proposed compromise terms. Lookingto the proposed compromise terms, the court has already passed order. It Ethape( 11 ) Cri. WP-908-2025is only clarified that the operative order was dictated assuming that thepetitioner-wife’s course will start in the month of July – August 2025. Inview of communication dated 22nd July 2025 her course will start from2nd March 2026. The operative order thus will come into effect on thedate the petitioner Nos. 1 and 2 go to Australia.17.With this, writ petition stands disposed off. [KISHORE C. SANT, J.]