High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.2071 OF 2024Tejal w/o Akshay Chaudhari,Age 23 yrs., Occ. Household,R/o C/o Ramesh Raghunath Mahajan,At Kerhale (Bk), Tq. Raver,Dist. Jalgaon. … Petitioner… Versus … 1The State of Maharashtra Through Superintendent of Police,Office of Superintendent of Police,Jalgaon, Tq. & Dist. Jalgaon. 2The In-charge Police Officer,Police Station, Muktainagar,Tq. Muktainagar, Dist. Jalgaon. 3The In-charge Police Officer,Police Station, Raver,Tq. Raver, Dist. Jalgaon. 4Akshay Vijay Chaudhari,Age 30 yrs., Occ. Private Service(IT Engineer),R/o Ashtavinayak Colony,Near Bus Stop, Muktainagar,Tq. Muktainagar, Dist. Jalgaon. … Respondents...Mr. S.R. Andhale, Advocate for petitionerMr. N.R. Dayama, APP for respondent Nos.1 to 3Mr. B.R. Kedar, Advocate for respondent No.4
Legal Reasoning
11Cri.WP_2071_2024314] it was held that -“The writ of habeas corpus was devised for production of anindividual in case of illegal restraint or confinement. It is of thehighest constitutional importance to provide a swift and expedientremedy by determining the petitioner’s right to freedom and toprotect the individual’s liberty against arbitrary action of theexecutive or by private persons. Its main objective is to releasepersons illegally detained or confined. It is a well-accepted principlethat a habeas corpus petition cannot be entertained when a person iscommitted to judicial custody or police custody by the competentcourt by an order which prima facie does not appear to be withoutjurisdiction or passed in an absolutely mechanical manner or iswholly illegal. The Court is required to scrutinize the legality orotherwise of the order of detention which has been passed.”However, in Jagisha Arora vs. State of U.P. [(2019) 6 SCC 619]Hon’ble Supreme Court further explained that when there is a glaring case ofdeprivation of liberty, intervention in habeas corpus petition under Article 32would then be warranted. 10Here, we are also taking note of the decision in Tejaswini Gaudand others vs. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42],wherein following are the observations - “1……………….. 12Cri.WP_2071_20242……………….. 3……………….. 19Habeas corpus proceedings is not to justify or examine thelegality of the custody. Habeas corpus proceedings is a mediumthrough which the custody of the child is addressed to the discretionof the court. Habeas corpus is a prerogative writ which is anextraordinary remedy and the writ is issued where in thecircumstances of the particular case, ordinary remedy provided by thelaw is either not available or is ineffective; otherwise a writ will notbe issued. In child custody matters, the power of the High Court ingranting the writ is qualified only in cases where the detention of aminor by a person who is not entitled to his legal custody. In view ofthe pronouncement on the issue in question by the Supreme Courtand the High Courts, in our view, in child custody matters, the writ ofhabeas corpus is maintainable where it is proved that the detention ofa minor child by a parent or others was illegal and without anyauthority of law.26The court while deciding the child custody cases is not boundby the mere legal right of the parent or guardian. Though theprovisions of the special statutes govern the rights of the parents orguardians, but the welfare of the minor is the supreme considerationin cases concerning custody of the minor child. The paramountconsideration for the court ought to be child interest and welfare ofthe child.”10.1It is further observed that the welfare of the child has to bedetermined owing to the facts and circumstances of each case and the court 13Cri.WP_2071_2024cannot take a pedantic approach. We would also consider the Division Benchdecisions of Hon’ble Rajasthan High Court at Jodhpur in DharmendraChoudhary vs. The State of Rajasthan and others [MANU/RH/0245/2024],wherein also Tejaswini Gaud (supra) referred and Rajeswari ChandrasekarGanesh vs. The State of Tamil Nadu and others [Writ Petition (Criminal)No.402/2021], decided on 14.07.2022 by Hon’ble Supreme Court, wherein ithas been observed that - “91.Thus, it is well established that in issuing the writ of HabeasCorpus in the case of minors, the jurisdiction which the Courtexercises is an inherent jurisdiction as distinct from a statutoryjurisdiction conferred by any particular provision in any specialstatute. In other words, the employment of the writ of HabeasCorpus in child custody cases is not pursuant to, but independent ofany statute. The jurisdiction exercised by the court rests in such caseson its inherent equitable powers and exerts the force of the State, asparens patriae, for the protection of its minor ward, and the verynature and scope of the inquiry and the result sought to beaccomplished call for the exercise of the jurisdiction of a court ofequity. The primary object of a Habeas Corpus petition, as applied tominor children, is to determine in whose custody the best interests ofthe child will probably be advanced. In a Habeas Corpus proceedingbrought by one parent against the other for the custody of their child,the court has before it the question of the rights of the parties asbetween themselves, and also has before it, if presented by thepleadings and the evidence, the question of the interest which theState, as parens patriae, has in promoting the best interests of the 14Cri.WP_2071_2024child.”10.2It has been further observed in Dharmendra Choudhary (supra)that - “The issue raised in a habeas corpus petition will always be subject tofactual matrix of that particular case, and more particularly, in thecases pertaining to custody of a child, the Court will have to take intodue consideration, recent changes, if any, in regard to the custody,which could determine the paramount welfare of the child in suchcases. Any immediate and recent change in custody of a child, largelyimpacting his/her welfare, would certainly be a good cause formaking effective adjudication by the Court.”10.3It has been further observed in Dharmendra Choudhary (supra)that - “13.This Court holds that the custody issues which exist for a longperiod of time, as involved herein, may not be dealt with, in habeascorpus petition, except under certain extraordinary circumstances. Inthe present case, the litigation between mother and father showsagony and acrimony between the two sides which relates to theperiod soon after the birth of the child.”11Now, the further legal position that is helping the petitioner isthat the child is around 2½ years of age now, but when she filed theapplication for grant of custody the boy was 22 months old. In various 15Cri.WP_2071_2024decisions of this Court as well as Hon’ble Supreme Court it is held that till theage of five the child’s natural custody would be with his or her mother. 12Now, in the present case, first of all it appears that there is adispute, as to whether the custody of the child was forcibly taken or it washanded over to respondent No.4 when the petitioner was hospitalized.However, we may not go into the said aspect as the interim custody of thechild was granted as per Section 23 of the D.V. Act by the learned Magistrate.Of course, such custody would be subject to the substantial petition thatshould be filed by either of the parents under Guardians and Wards Act or theHindu Minority and Guardianship Act. Section 21 of the D.V. Act starts with,“Notwithstanding anything contained in any other law for the time being inforce ……………” When such order is passed under Section 23 read withSection 21 of the D.V. Act, then the question would be, how theimplementation of the said order can be made ? For that purpose we willhave to read Section 28 of the D.V. Act, which provides for the procedure,which runs thus - “28.Procedure. - (1)Save as otherwise provided in this Act, allproceedings under Sections 12, 18, 19, 20, 21, 22 and 23 andoffences under Section 31 shall be governed by the provisions of theCode of Criminal Procedure, 1973 (2 of 1974). 16Cri.WP_2071_2024(2)Nothing in sub-section (1) shall prevent the Court from layingdown its own procedure for disposal of an application under Section12 or under Sub-Subsection (2) of Section 23.”That means, the Magistrate has to follow the provisions of theCode of Criminal Procedure. That means, there is a provision for executionof the order. Now, the question is, when there is such provision, thenwhether this Court can exercise its powers for issuing writ of habeas corpus ?In other words, whether petition of habeas corpus can be filed as alternativeto the execution of the order which is already passed under the provisions ofLaw ? Here, in this case, the said order is confirmed up to Hon’ble SupremeCourt. It appears that after the confirmation of order by Hon’ble SupremeCourt, petitioner has not knocked the doors of Magistrate for the execution oforder and even prior to that had approached this Court. From the affidavit-in-reply it appears that respondent No.4 had filed appeal challengingMagistrate’s order before the Sessions Court and it appears that his stayapplication was rejected, then he approached this Court in revision. Here, wewould like to stress that each party can exhaust the legal remedy availableand the step taken cannot be termed as the action on the part of personchallenging as avoiding the execution or a step in disobedience. 13We will have to dedicate some space in this order to state as towhat had happened before this Court. On 06.05.2025 respondent No.4 had 17Cri.WP_2071_2024brought the child before Court and then pursis Exh.‘X’ was filed. After somedeliberation that petitioner and respondent No.4 are willing to residetogether and orally it was stated that initially it was for two days consideringthe welfare of the child. This deliberation was held in the chamber, whereinpetitioner, respondent No.4 and Advocates representing them were present.The matter was adjourned to 09.05.2025. Then pursis Exh.‘Y’ was given thatthey will continue to explore the possibility by residing together for thewelfare of the child. Then the matter was placed on 09.06.2025. On09.06.2025 the Advocate for petitioner disclosed that petitioner is havingsome examination and, therefore, the matter was adjourned on 23.06.2025.On 23.06.2025 both the parties along with Advocates were present anddisclosed to the Court that they want further more time. However, on14.07.2025 learned Advocate for petitioner made a grievance that the matterwas somewhat compromised and the parties are residing together, butaccording to petitioner, now she is mentally harassed. It was thought by thisCourt that now the possibility of settlement has extinguished and, therefore,we heard the matter on the adjourned dates. Thus, there was an attempt bythis Court for bringing the husband and wife together for the welfare of child,but it failed. 14Coming back to the factual position, as aforesaid, now the child 18Cri.WP_2071_2024is with the father since last more than one year and according to respondentNo.4, he made all the efforts to stay with petitioner taking into considerationthe welfare of the child, but, according to him, petitioner could not establishthe bond as child had not seen the mother for a considerable time. We maynot go much into those disputed facts, however, when certainly, there is anorder granting custody of child to petitioner passed by a competent Court,then instead of getting the same executed if petitioner is coming before thisCourt by way of writ petition for issuance of writ of habeas corpus, we willhave to then consider that respondent No.4, who is father, is having thecustody against whom it is stated that order is passed ex parte by learnedMagistrate. 15The photographs produced would show that the child is happywith grandmother and other family members. If we consider the pleadings inapplication under D.V. Act i.e. PWDVA No.89/2024, in paragraph No.3 shestates that she was required to undergo the amputation on 20.04.2024 andsince she as well as her parents were in the hospital, the child was with therespondents i.e. husband and his family members. Though she has statedthat entire expenses of hospital were borne by her father, along with affidavitcopy of bank statement of respondent No.4 has been filed, which showspayments to Jaslok Hospital, Mumbai and according to petitioner, in her 19Cri.WP_2071_2024pleadings in domestic violence proceedings after discharge respondents hadnot accepted her nor given the custody. She filed domestic violenceproceedings on 09.09.2024. 16At this stage, we are considering the welfare of the child asparamount consideration. At the same time, the petitioner would be atliberty to get the order executed. We do not want to convert the executionproceedings in the form of writ of habeas corpus. At the cost of repetition,the writ of habeas corpus cannot be issued as a matter of course and whenproceedings for execution thereof is available, we do not find this to be a fitcase where we should exercise our powers under Article 226 of theConstitution of India. Hence, following order. ORDERi)Criminal Writ Petition stands dismissed.ii)Rule stands discharged. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd
Arguments
2Cri.WP_2071_2024...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.RESERVED ON :01st AUGUST, 2025PRONOUNCED ON :20th AUGUST, 2025JUDGMENT : ( PER : SMT. VIBHA KANKANWADI, J. )1Heard learned Advocate Mr. S.R. Andhale for petitioner, learnedAPP Mr. N.R. Dayama for respondent Nos.1 to 3 and learned Advocate Mr.B.R. Kedar for respondent No.4. 2Rule. Rule made returnable forthwith. The writ petition isheard finally with consent of both sides. 3By invoking Article 21 and 226 of the Constitution of India thepetitioner – mother is praying for following reliefs : “(B)By issuing writ of habeas corpus or any other writ, order ordirections in the like nature, the respondents No.1 to 3 may kindly bedirected to produce the child of petitioner namely Kartik s/o AkshayChaudhari before this Hon’ble High Court, in the interest of justiceand they may kindly be handed over the custody of the petitioner. (C)By issuing writ of mandamus or any other writ, order ordirections in the like nature, the respondent No.1 may kindly be 3Cri.WP_2071_2024directed to decide the representation dated 11.12.2024 filed bypetitioner and please to pass necessary orders in that regard.”4Learned Advocate appearing for petitioner submits that the factis not in dispute that petitioner and respondent No.4 are husband and wife.They got married on 04.06.2021. They are blessed with son, who is nowaged 2 to 2½ years. 5It is the petitioner’s contention that after a year of delivery shebegan experiencing muscle problems in her right hand. She consulted adoctor and it was diagnosed that she was suffering from Wet Gangrene of theright upper limb along with subclavian vein and SVC thrombosis as well asPTE. The doctors had recommended surgery and her right hand wasrequired to be amputated from the shoulder. After the surgery respondentNo.4 refused to cohabit with her due to her disability and since then she isresiding with her parents. Neither respondent No.4 nor in-laws hadattempted to contact her. Respondent No.4 has forcibly took custody ofminor child from petitioner. Petitioner has filed PWDVA No.89/2024 beforelearned Judicial Magistrate First Class, Raver, Dist. Jalgaon. She haddemanded interim custody of her child as per the provisions of Section 23 ofthe Protection of Women from Domestic Violence Act (for the sake of brevity 4Cri.WP_2071_2024hereinafter referred to as “the D.V. Act”). Notices were issued and in-laws ofpetitioner had appeared, however, respondent No.4 intentionally avoided theservice. Considering the facts and circumstances learned Judicial MagistrateFirst Class had allowed that application on 09.09.2024 and granted theinterim custody of child to petitioner. The Protection Officer had submittedreport to learned Magistrate, Raver on 11.09.2024 that when he had visitedthe house of respondents – in-laws, at that time the child was not with them.Respondents had not complied with directions given by learned Magistrate.Even the Protection Officer when attempted to affix the notice on the houseof respondents, in-laws of petitioner restrained him. An application was thenfiled by petitioner at Exh.21 on 03.12.2024 before learned Magistrate thatthough respondent No.4 is residing in Muktainagar, he is avoiding Courtnotice as well as handing over the child to her. In the application petitionerhad prayed for directions to be given to Raver Police to find out the child andto hand over the custody to her. To the said application in-laws had filedtheir say and after hearing both sides learned Magistrate had given directionsto Raver Police as well as Protection Officer to find the child and hand overthe custody to petitioner. Thereafter, Protection Officer, Raver filed report on10.12.2024 before learned Magistrate that when he along with police hadgone to the house of respondent No.4 for execution of order on 03.12.2024,they could not find respondent No.4 and child. Information was given by 5Cri.WP_2071_2024parents that respondent No.4 is residing in Mumbai, but refused to give fulladdress. The offence came to be registered on 10.12.2024 against parentsand close relatives of petitioner vide First Information Report bearing CrimeNo.425/2024. The further proceedings has been taken by petitioner beforelearned Magistrate, however, it has not yielded in getting the custody ofchild. There is no compliance of order passed by learned Magistrate. 6Learned Advocate for petitioner then submits that respondentNo.4 had challenged said order passed by learned Magistrate before thisCourt by filing Criminal Revision Application No.109/2025. Hon’ble theSingle Bench of this Court by order dated 04.04.2025 dismissed the revision.The order passed by this Court is then maintained before Hon’ble SupremeCourt also; yet, there is no compliance. A joint pursis was filed on behalf ofpetitioner and respondent No.4 in view of the mediation and joint statementwas made that respondent No.4 and petitioner would stay together andwould continue their marital tie for the welfare of child. Thereafter, time totime the matter was listed and statement was made that presently they areresiding together, however, petitioner was not given proper treatment. Childis not allowed to remain in custody for a long period. She is mentallyharassed and then on 14.07.2025 when such statement was made, this Courtultimately stated that the matter would then be decided on merits. Petitioner 6Cri.WP_2071_2024has been forced to go back to her parents’ home and again the custody is nothanded over to petitioner. Since petitioner is now handicapped, respondentNo.4 is not willing to cohabit with her. It appears that the boy is hardly 2½years old and requires mother’s love and affection. She is the naturalguardian as per the Guardians and Wards Act, 1890. The writ of HabeasCorpus is maintainable even though there might be alternative remedy. Herelies on Thirumalai Kumaran vs. Union Territory of Dadra and Nagar Haveliand others [2003 (2) Mh.L.J. 53], wherein it has been held that - “Even though the party has approached the Courts below underSection 97 of the Code of Criminal Procedure and had failed therein,in a given case and in the facts of peculiar case, the High Court mayexercise its discretion to act for issuance of writ of habeas corpus.Power of the High Court are not taken away by Section 97 of theCode of Criminal Procedure.”6.1He also relies on the order passed by this Court in Anita MehulSathliya vs. The State of Maharashtra and others in Criminal Writ PetitionNo.1225 of 2024 decided on 27.08.2024, to which [SMT. VIBHAKANKANWADI, J.] was party, wherein also the child who was forcibly takenaway and was aged 09 months was handed over to petitioner – mother. 7Learned Advocate for respondent No.4 relies on the affidavit-in-reply of respondent No.4, wherein he has denied all the allegations. He 7Cri.WP_2071_2024states that child is residing with father very peacefully and in goodatmosphere since last one year. The question of custody of child must beultimately decided under Section 25 of Guardians and Wards Act and underSection 6 of the Hindu Minority and Guardianship Act. Respondent No.4denies the allegations about forcibly taking away of child. It is also deniedthat respondent No.4 and his family members had harassed the petitioner.Initially the petitioner had no desire to have a child and subsequently afterconceiving she wanted the forcible abortion. After the birth of child sheexpressed that she does not want to feed the child and for that purpose shewas taking pills for stopping milk. She avoided feeding the child, whichresulted in developing small knots of milk in chest of petitioner. It hadresulted in amputation of her right hand. The entire treatment has beengiven by respondent No.4. He has incurred about Rs.6,00,000/- for thesame. During the course of her treatment she was not in a position to takecare of son. Therefore, she had handed over the custody of child on06.04.2024 when the child was less than 1½ year old to father and mother-in-law. She was not interested in keeping the child with her and thisadmission was given by her in her application under the D.V. Act. Since06.04.2024 the child is emotionally attached to the mother of respondentNo.4. Respondent No.4 and his family members are looking after him nicelyand photographs, those have been produced, would disclose this fact. 8Cri.WP_2071_2024Learned Magistrate had not heard respondent No.4. There was nothing onrecord to show that he was avoiding the notice. First Information Report waslodged by brother of respondent No.4 when abuses were given at the time ofsearch of child in the house. Respondent No.4 is accepting the fact thatlearned Magistrate’s order has been confirmed up to Hon’ble Supreme Court,however, the legal remedy is available to petitioner to get the order executed.Petitioner’s family is politically strong and, therefore, police as well asGovernment Officers are supporting petitioner. Now, there is no attachmentof petitioner with child and even when during the pendency of this petitionas per the condition of petitioner, she herself, respondent No.4 startedresiding in the upper room of the house of respondent No.4. Now, she oughtto have developed the bond between herself and child during the said periodwhen she had united, but the petitioner has not made much attempts. Afterall the child had not seen the mother for so many months and callingrespondent No.4’s mother as ‘Aai’. Child would have moulded and furtherjourney of the marital life of petitioner and respondent No.4 would havebeen smooth if petitioner would have taken extra efforts for developing thatmother and child bond. She started levelling allegations unnecessarilythough her demands were fulfilled by husband. Under such circumstance,the case cannot be considered for issuing writ of habeas corpus. 9Cri.WP_2071_20248Learned Advocate for respondent No.4 relies on SumedhaNagpal vs. State of Delhi and others [2001 SCC (Cri.) 698], which is the caseinvolving custody of child of tender age of about two years and petitionerwas the mother, wherein it has been observed - “Both parties do recognize that the question of custody of the childwill have to be ultimately decided in proceedings arising underSection 25 of the Guardians and Wards Act read with Section 6 of theAct and while deciding such a question, welfare of the minor child isof primary consideration. Allegations and counter allegations havebeen made in this case by the petitioner and respondent not againsteach other narrating circumstances as to how the estrangement tookplace and how each one of them is entitled to the custody of the child.Since these are disputed facts, unless the pleadings raised by theparties are examined with reference to evidence by an appropriateforum, a proper decision in the matter cannot be taken and such acourse is impossible in a summary proceeding such as writ petitionunder Article 32 of the Constitution.”8.1He further relies on Mandy Jane Collins Major vs. James MichaelCollins [2006 (3) AIR (BomR) 14], wherein note has been taken of variousdecisions of this Court as well as Hon’ble Supreme Court, wherein welfare ofthe child was predominantly considered. 9Before considering the facts, we would like to consider the legalhistory/background and requirements for issuance of writ of habeas corpus. 10Cri.WP_2071_2024The writ of habeas corpus is the contribution of English Common Law for theprotection of human liberty. Commonly known writ of habeas corpus is aprerogative process for securing the liberty of the subject by affording aneffective means of immediate release from unlawful or unjustifiable detentionwhether in prison or in private custody. In other words, habeas corpus is awrit requiring a person to be brought before a Judge or Court whose personalliberty has been jeopardised. 9.1In Mohd. Ikram Hussain vs. State of U.P. [AIR 1964 SC 1625] ithas been observed that the writ of habeas corpus is not a writ of course andmay be granted only upon reasonable ground or probable cause being shown.It may be refused when there is an alternative remedy available by which thevalidity of the detention may be examined. However, it cannot be refusedonly on the ground that alternative remedy is available.9.2In Rashmi Ajay Kumar Kesharwani vs. Ajay Kesharwani [(2012)11 SCC 190] Hon’ble Supreme Court held that writ of habeas corpus shouldnot be issued as a matter of course in cases where there is abuse of process ofthe Court. The facts of the said case were different; yet the basic law thatwas made applicable is required to be considered here.9.2In Manubhai Ratilal Patel vs. State of Gujarat [(2013) 1 SCC