Judgment · High Court

The petitioners have filed the present petition challenging thejudgment and order dated 25.08.2025 passed by the learnedAdditional Sessions Judge-1, Nanded, in Criminal Appeal No. 11 of2025, as well as the order dated 28.02.2025 passed by the learnedJudicial Magistrate First Class, Court No. 5, Nanded, below Exhibit-4/1 in P.W.D.V.A. No. 52 of 2024, whereby interim custody of thechild has been granted to the respondent-wife under Section 21 ofthe Protection of Women from Domestic Violence Act, 2005.

Learned counsel for the petitioners submits that petitionerNo.1 and the sole respondent are husband and wife. The marriagebetween petitioner No.1 and the respondent was solemnized on26.11.2017, and out of the wedlock, a male child, Bhim, was born on10.05.2022. Due to matrimonial disputes between petitioner No.1–husband and the respondent–wife, the respondent-wife left thematrimonial home and started residing with her parents from aroundSeptember 2023.Jhs/Page No. 2 902 CRI WP NO. 1337 OF 20253.It is submitted that a meeting was held at the house of therespondent-wife at Nanded on 13.11.2023, which was attended bythe petitioner-husband along with his relatives. According to thepetitioner-husband, during the said meeting, the male child, who wasthen aged about two years, was voluntarily handed over to him on13.11.2023.

However, the respondent-wife has strongly contended in theproceedings that on 13.11.2023, the petitioner-husband forciblysnatched away the child from her custody. It is her contention thatshe lodged a complaint with Bhagya Nagar Police Station, Nanded, on 16.12.2023, alleging forcible removal of the child by thepetitioner-husband; however, no action was taken by the policeauthorities.

As no action was taken by the police, the respondent-wife filedproceedings before the learned Judicial Magistrate First Class, Nanded, under Section 97 of the Code of Criminal Procedure, seekingcustody of the child on 06.01.2024, which proceedings were pendingat the relevant time.

Thereafter, the respondent-wife filed the present proceedingsunder the Protection of Women from Domestic Violence Act, 2005,against the petitioner-husband and the other petitioners, who arerelatives of the petitioner-husband, on 27.03.2024Jhs/Page No. 3 902 CRI WP NO. 1337 OF 20257.It is the submission of the learned counsel for the petitionersthat the application filed by the respondent-wife under Section 97 ofthe Code of Criminal Procedure before the learned JudicialMagistrate First Class came to be rejected by order dated 19.08.2024.Despite the rejection of the said application, the respondent-wifecontinued to pursue the proceedings under the Protection of Womenfrom Domestic Violence Act, 2005, and filed an application under Section 21 of the D.V. Act seeking interim custody of the child. Thesaid application for interim custody came to be allowed by thelearned JMFC by order dated 28.02.2025, thereby granting interimcustody of the child to the respondent-wife.

Aggrieved by the said order dated 28.02.2025, the petitionerspreferred an appeal before the learned Sessions Court, Nanded, challenging the exercise of powers under Section 21 of the D.V. Act bythe learned JMFC. The learned Additional Sessions Judge, Nanded, dismissed the said appeal by judgment and order dated 25.08.2025.

Learned counsel for the petitioners submits that neither thelearned Judicial Magistrate First Class nor the learned AdditionalSessions Judge, Nanded, considered the fact that the child wasvoluntarily handed over to petitioner No.1–father by the respondent-wife on 13.11.2023. It is further submitted that there is noacknowledgment or material on record to show that any complaintJhs/Page No. 4 902 CRI WP NO. 1337 OF 2025was lodged by the respondent-wife with Bhagya Nagar Police Stationon 16.12.2023.

It is contended that the respondent-wife had virtuallyabandoned the child and is not in a position to take proper care ofthe child. Therefore, the interim custody of the child, which wasvoluntarily handed over by the respondent-wife on 13.11.2023, couldnot have been granted back to her by order dated 28.02.2025,particularly when the child had been continuously residing withpetitioner No.1–father for nearly one year and two months prior tothe passing of the said order. 11. Learned counsel for the petitioners places reliance upon thejudgments of the Hon’ble Supreme Court in Sumedha Nagpal v. Stateof Delhi & Ors. (2000) 9 SCC 745, R.V. Shrinath Prasad v. Nandamuri& Ors. (2001) 4 SCC 71, Athar Hussain v. Syed Siraj & Ors. (2010) 2SCC 654, and Anjali Kapoor v. Rajiv Baijal (2009) Supreme (SC) 754. Apart from the aforesaid judgments of the Hon’ble Supreme Court, learned counsel for the petitioners has also relied upon the judgmentsof the Hon’ble Bombay High Court in Swapnil Bhajandas Kamble v.Sau. Manisha Swapnil Kamble 2022 ALL MR (Cri) 2296 and ArunSharma v. Roxanna Sharma 2014 (6) Bom. C.R. 2019.

The petitioners have also relied upon the recent judgment ofthe Single Judge of the Hon’ble Bombay High Court, Bench at Jhs/Page No. 5 902 CRI WP NO. 1337 OF 2025 Aurangabad, in Criminal Revision Application No. 158 of 2025 withother connected applications, decided on 24.11.2025, in the case of Sandeep Shivaji Pawar v. Mrs. Archana Sandeep Pawar.

As against this, learned counsel appearing for the respondenthas filed a reply opposing the present writ petition and submits thatafter the child was forcibly taken away from the custody of therespondent-wife on 13.11.2023, the respondent-wife continuouslypursued the petitioner-husband and the other petitioners for handingover the custody of the child. As the custody was not restored, therespondent-wife lodged a complaint with Bhagya Nagar PoliceStation on 16.12.2023. However, since the petitioner No. 1 is thefather of the child, the police authorities did not take any action byregistering an FIR. The respondent-wife was, therefore, constrainedto file an application under Section 97 of the Code of CriminalProcedure, which was registered as Criminal MiscellaneousApplication No. 28 of 2024. On 06.01.2024, the learned Court issuednotice, which came to be served upon the petitioners through theconcerned police station on 08.01.2024. The petitioner No. 1 - fatherfiled his reply on 05.02.2024, contending therein that therespondent-wife had an alternative remedy to seek custody of thechild under the appropriate provisions of law. The said applicationunder Section 97 Cr.P.C. came to be dismissed by order dated Jhs/Page No. 6 902 CRI WP NO. 1337 OF 202519.08.2025, primarily on technical grounds, namely that for invokingSection 97 Cr.P.C., there must be detention of the minor with anintention to commit an offence, which was not made out in the factsof the present case.

It is further contended that the respondent-wife hadspecifically mentioned in her application under Section 97 of the Code of Criminal Procedure that she had submitted a complaintdated 16.12.2023 at Bhagya Nagar Police Station, Nanded. It issubmitted in the reply filed by the petitioner No. 1 - father, that thesaid complaint dated 16.12.2023 was termed as false, and on thatground, no action was taken by the police authorities.

It is further submitted by learned counsel for the respondentthat the petitioner-husband has deliberately kept the child, namelyBhim, away from the mother at a tender age, which itself causestrauma to the young child by depriving him of the care and affectionof his mother. It is further submitted that the child is suffering frombilateral severe hydronephrosis, and considering the young age of thechild, the mother, being the natural guardian, is best suited to takecare of the child. It is contended that these aspects were dulyconsidered by both the Courts below, and therefore, the learnedCourts have rightly granted interim custody of the child to theapplicant-wife, who is the present respondent. Jhs/Page No. 7 902 CRI WP NO. 1337 OF 202516.It is further submitted that Section 21 of the Protection of Women from Domestic Violence Act, 2005, specifically empowers the Magistrate to grant temporary custody of the child to the aggrievedperson, upon an application being made, with appropriatearrangements for visitation of the child by the respondent. Thus, thepowers under Section 21 of the D.V. Act have been rightly exercisedby the learned Magistrate.

It is contended that the learned Magistrate has taken intoconsideration the necessary and relevant factors required to beassessed while granting interim custody of a minor child, particularlywhen the child is below the age of five years. The First AppellateCourt has also duly considered all the relevant aspects involved in thepresent matter and, after examining the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, has rightly upheld theorder dated 28.02.2025 passed by the learned JMFC, by its judgmentand order dated 25.08.2025, thereby dismissing the appeal preferredby the petitioners.

Learned counsel for the respondent has relied upon thejudgment of the Hon’ble Bombay High Court in Manjita Naik Teunkarv. Soiroo @ Sarvesh C. Naik Teunkar & Another 2013 SCC OnLineBom 521. Relying upon the said judgment, it is submitted thatdespite the statutory provisions and the various judicialJhs/Page No. 8 902 CRI WP NO. 1337 OF 2025pronouncements governing custody matters, each case has to bedecided on its own facts and merits.

It is further submitted that the applicant-wife is employed asan Assistant Engineer with the Maharashtra State Electricity Board(MSEB), Nanded, and is financially capable of maintaining the child. Being the natural guardian, she is also well-equipped to take care ofthe needs of the minor child, who is aged about three and a halfyears. It is contended that both the learned Trial Court and thelearned First Appellate Court have rightly adjudicated upon all therelevant factors involved in the present matter and, after consideringthe judgments of the Hon’ble Supreme Court, have directed handingover of interim custody of the minor child in favour of the applicant-wife/respondent herein, while granting visitation rights to thepetitioner-husband.

I have perused the order dated 28.02.2025 passed by thelearned 5th Judicial Magistrate First Class, Nanded. The learnedMagistrate has taken into consideration the fact that when the childwas taken away from the custody of the respondent-wife by thepresent petitioner No. 1 - husband, the child was of tender age. At thetime of passing of the order, the child was aged 2 years, 9 monthsand 15 days, and considering the young age of the child, the learnedMagistrate found it appropriate that the temporary custody of the Jhs/Page No. 9 902 CRI WP NO. 1337 OF 2025child should remain with the mother. The learned Magistrate hasfurther taken into account that the petitioner No. 1 - father is also anatural guardian and, considering the love and affection of the fathertowards the child, namely Bhim, has granted visitation rights topetitioner No.1–father, permitting him to meet the child everySunday from 12.00 noon to 4.00 p.m.

The learned JMFC, Nanded had relied upon the judgment of Smt. Manjita Naik Tuenkar Vs. Soiroor @ Sarvesh C. Naik Teunkarand Ors.; ALL MR (Cri.) 2456 to handover the interim custody of thechild to the mother. The Hon’ble Supreme Court in the aforesaidjudgment was pleased to observe as under :-

4. Mr. D'Souza, the learned counsel for the petitionerrightly submits that the entire approach of the Appellate Courthas been incorrect and contrary to settled principles of law. Forthe child aged 5 years and that too a girl child in particular, the mother would be the natural guardian and as such firstpreference for granting custody of the child. It is only whenthe mother is shown to be unfit to have custody of the childthen the father would be considered as the second preferencefor custody of the child. In the instant case, the AppellateCourt has not even looked into the aspect whether thepetitioner is fit to have custody. It is not disputed that on thedate and time mentioned in the application, the respondenthad snatched the child in the manner as alleged and goneaway. This would mean that the child who was in the custodyof the mother had been removed by the father without herconsent.

The judgment and order dated 25.08.2025 passed by thelearned Additional Sessions Judge, Nanded, further reflects dueJhs/Page No. 10 902 CRI WP NO. 1337 OF 2025consideration of all relevant factors. The learned Additional SessionsJudge has examined the judgments relied upon by both sides and, after considering the legal position laid down by this Court in Pramod Prakash Mulik & Another v. Manisha Pramod Mulik &Another 2019 SCC OnLine Bom 1466, as well as the authoritativepronouncement of the Hon’ble Supreme Court in Gaurav Nagpal v.Sumedha Nagpal (2009) 1 SCC 42, was pleased to dismiss theappeal.

A perusal of the application filed under Section 97 of the Codeof Criminal Procedure, as well as the complaint dated 16.12.2023lodged at the police station, clearly reflects allegations of the childhaving been forcibly removed from the interim custody of the mother. The application under Section 97 Cr.P.C. came to be rejected only ontechnical grounds, namely that there was no intention on the part ofthe father to commit an offence against the minor child.

The learned Additional Sessions Judge has examined in detailthe applicability of the provisions of Sections 10 and 11 of the Codeof Civil Procedure vis-à-vis Section 21 of the Protection of Womenfrom Domestic Violence Act, 2005, and has rightly held that the saidprovisions do not preclude the applicant-wife/respondent hereinfrom filing an application under Section 21 of the D.V. Act. NeitherSections 10 and 11 of the C.P.C., nor Section 97 of the Cr.P.C., operateJhs/Page No. 11 902 CRI WP NO. 1337 OF 2025as a bar to the maintainability of an application seeking interimcustody under Section 21 of the D.V. Act. 25. The paramount consideration in matters relating to custody isthe welfare of the child. Considering the allegations regardingforcible removal of the child by the petitioner-father from the custodyof the respondent-mother, the proviso to Section 6(a) of the HinduMinority and Guardianship Act, 1956, becomes relevant. It is well-settled that proviso to Section 6(a) mandates ordinarly that themother is the natural guardian of a minor child who is below the ageof five years. In the present case, the child is presently aged morethan three and a half years, but below 5 years. The respondent-wife isemployed as an Assistant Engineer with the Maharashtra StateElectricity Board (MSEB) and has sufficient means to maintain herselfand the minor child. The child is suffering from bilateral severehydronephrosis, which requires constant care and attention, and suchcare can be effectively provided by the respondent-wife, who is thenatural guardian. Taking into consideration the paramountconsideration, namely the welfare of the child, who has beendeprived of the maternal care and affection at such a tender age, I amnot inclined to interfere with the findings of the Courts below.

The petitioner No.1–father has already been granted visitationrights and is permitted to meet the child every Sunday between 12.00Jhs/Page No. 12 902 CRI WP NO. 1337 OF 2025noon and 4.00 p.m. The petitioner-father is also employed as an Assistant Engineer, and considering his professional commitments, hemay not be in a position to provide continuous care to a child of suchtender age. Thus, in view of the statutory mandate under the provisoto Section 6(a) of the Hindu Minority and Guardianship Act, 1956,the custody of a minor child below five years has rightly beencontinued with the respondent-mother.

In the case of Gaurav Nagpal V. Sumedh Nagpal (Supra), it isobserved as under :-

52. The trump card in the appellant’s argument isthat the child is living since long with the father. Theargument is attractive. But the same overlooks a verysignificant factor. By flouting various orders, leading even toinitiation of contempt proceedings, the appellant hasmanaged to keep custody of the child. He cannot be abeneficiary of his own wrongs. The High Court has referredto these aspects in detai in the impugned judgments. 53. The conclusions arrived at and reasons indicated by the High court to grant custody to the mother do not in ourview suffer from any infirmity. It is true that taking the childout of the father’s custody may cause some problems, butthat is bound to be neutralised.

Taking into consideration the aforesaid judgments and the lawlaid down by the Hon’ble Supreme Court in Gaurav Nagpal (supra), itis evident that the long stay of a child with the father, by itself, cannot be the sole ground to deny custody of a child below 5 years tothe mother, particularly when there are allegations that the child was Jhs/Page No. 13 902 CRI WP NO. 1337 OF 2025forcibly taken away from the mother’s custody. It is true that takingthe child from father’s custody may cause some problems, but that isbound to be neutralized.

The Hon’ble Supreme Court in Roxann Sharma v. ArunSharma; (2015) 8 SCC 318 has lucidly explained the scope andsignificance of the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and observed as under :“10. Section 6 of the HMG Act is of seminal importance. Itreiterates Section 4(b) and again clarifies that guardianshipcovers both the person as well as the property of the minor; and then controversially states that the father and after himthe mother shall be the natural guardian of a Hindu. Havingsaid so, it immediately provides that the custody of a minorwho has not completed the age of 5 years shall ordinarily bewith the mother. The significance and amplitude of the provisohas been fully clarified by the decisions of this Court and verybriefly stated, a proviso is in the nature of an exception towhat has earlier been generally prescribed. The use of theword “ordinarily” cannot be overemphasised. It ordains apresumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of thesignificance of the use of the word “ordinarily” inasmuch as hehas observed in para 13 of the impugned order that the Mother has not established her suitability to be grantedinterim custody of Thalbir who at that point in time was aninfant. The proviso places the onus on the father to prove thatit is not in the welfare of the infant child to be placed in thecustody of his/her mother. The wisdom of Parliament or thelegislature should not be trifled away by a curial interpretationwhich virtually nullifies the spirit of the enactment.”

In the present case, the petitioner–father has failed todemonstrate any material on record to rebut the statutoryJhs/Page No. 14 902 CRI WP NO. 1337 OF 2025presumption in favour of the respondent–mother. On the contrary, thematerial placed on record indicates that the respondent–mother isgainfully employed, financially independent, and capable of takingproper care of the minor child, who is of tender age and is sufferingfrom bilateral severe hydronephrosis, requiring constant care andmedical attention. The judgments relied upon by the petitioner –father, does not apply in the facts of the present case.

The visitation rights granted to the petitioner–fathersufficiently protect his right to interact with the child and ensureemotional bonding. The orders passed by the learned Magistrate aswell as the learned Appellate Court strike a just balance between thewelfare of the child and the rights of both parents.

Thus, upon an overall consideration of the facts of the case, thestatutory provisions, and the settled legal position governing custodyof minor children, this Court does not find any perversity, illegality, orjurisdictional error in the impugned orders warranting interference inexercise of powers under Articles 226 and 227 of the Constitution of India.

Consequently, this Court is not inclined to entertain the presentwrit petition. The writ petition is devoid of merit and substance andis therefore dismissed. Jhs/Page No. 15 902 CRI WP NO. 1337 OF 202534.At this stage, it is also necessary to take note of the conduct ofthe petitioner–father. A perusal of the order dated 28.02.2025 passedby the learned Judicial Magistrate First Class, Court No. 5, Nanded, in P.W.D.V.A. No. 52 of 2024 would show that the petitioner wasdirected to hand over the custody of the minor child to therespondent–mother within a period of fifteen days from the date ofthe said order. However, the petitioner preferred an appeal and, during the pendency of the appeal, the operation of the said orderremained stayed. Consequently, the custody of the child was nothanded over to the respondent–mother. After dismissal of the appeal, the learned Appellate Court, by order dated 25.08.2025, continuedthe interim protection till 22.09.2025.