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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO. 52/2022

Swapnil Bhajandas Kamble,

Aged about 36 years, Occ. Service,
R/o. 3rd Floor, Prerana Tower, P & T
Colony, Trimulgherry, Secunderbabad,
Dist – Hyderabad (Telangana).

….PETITIONER

VERSUS

Sau. Manisha w/o Swapnil Kamble,

Aged about 33 years, Occ. Household,
R/o. Sangadi, Tah. Sakoli,
Dist. Bhandara.

….RESPONDENT

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Mr. M. V. Rai, Advocate for petitioner.
Mr. K. J. Topale, Advocate for respondent.

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CORAM : VINAY JOSHI, J.

CLOSED FOR JUDGMENT : 09.06.2022.

DATE OF JUDGMENT : 17.06.2022.

JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

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2. Whether the father or the mother shall be preferred for

temporary custody of a female chilled aged 5 years 5 month, is the

short question for consideration in this petition. The

petitioner/husband has challenged the impugned orders passed by

both the Courts below directing to handover temporary custody of

child to the respondent/wife. By invoking writ jurisdiction,

petitioner/father has called in question the legality and

sustainability of both impugned

orders.

3. The petitioner got married with the respondent/wife on

07.09.2014. The parties are governed under the Hindu Law. The

petitioner/husband was hailing from District Jalna whilst the

parental house of the respondent/wife is at village Sangadi, District

Bhandara. The petitioner was serving as a Scientist/Technecian at

Hyderabad. Soon after the marriage, couple started to reside at

Hyderabad. During Wedlock, they had a female child born on

02.01.2017. In the year 2020, after Dasera festival, the couple came

to Jalana and thereafter, respondent alongwith her minor child

stayed at her parental house due to differences.

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4. On 27.02.2021, the petitioner/husband went to the

respondent’s maternal house and took child under one or other

pretext, but never returned. The respondent/wife has filed

application under Section 12 of the Protection of Women from the

Domestic Violence Act, 2005 (‘D. V. Act’) in the Court of

jurisdictional Magistrate. In said proceedings, she has applied for

temporary custody of minor child in terms of Section 21 of the D.V.

Act. The petitioner/husband resisted for grant of temporary custody

to the wife. After hearing both sides, the learned Magistrate vide

order dated 24.12.2021 has granted temporary custody of child to

the respondent/wife till disposal of main petition. The said order

was carried by the petitioner/husband in Criminal Appeal No.

49/2021, however the appeal was dismissed vide order dated

17.01.2022.

5. Undisputedly for initial 4 years from marriage, the

couple lived with child at Hyderabad. It is not in dispute that while

the respondent/wife was staying at her maternal house, on

27.02.2021, the petitioner/husband took away child to Hyderabad.

The learned counsel for the petitioner has primly canvased that since

the child is comfortably living with father from 27.02.2021, it is not

conducive for the welfare of child to transmit her during pendency

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of lis. It is submitted that the child was suffering from physical as

well mental problem. The father has extended necessary medical

aid to the child at Hyderabad. Moreover, father has admitted the

child in nursery and looking towards welfare of the child. On the

other hand, the learned counsel appearing for respondent wife

would submit that the petitioner/husband has forcibly taken the

custody of child. It is submitted that the child was barely 4 ½ years

old at relevant time, and therefore, the mother being legal custodian

of female child below 5 years of age, she is entitled for custody.

Both learned counsels have relied upon various decisions to support

their respective stand.

6. The learned counsel for petitioner, by relying on the

decision of this Court in case of Arun Sharma Vs. Roxann Sharma

(Writ Petition No. 79/2014) decided on 02.08.2014 advanced

submission that when the child is with her father for more than one

year, it is not appropriate to change the custody at interim stage. He

has also relied on the decisions of the Supreme Court in cases of

Mausami Moitra Ganguli Vs. Jayant Ganguli, (2008) 7 SCC 673,

Athar Hussain Vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654,

Sumedha Nagpal Vs. State of Delhi and others, (2000) 9 SCC 745

and R.V. Srinath Prasad Vs. Nandamuri Jayakrishna and others,

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(2001) 4 SCC 71 to impress that welfare of child is the paramount

consideration in the matters of custody.

7. On the other hand, learned counsel for respondent by

placing reliance on the decision of this Court in case of Smt. Manjita

Naik Tuenkar Vs. Soiroo @ Sarvesh C. Naik Tuenkar & Anr, 2013

ALL MR (Cri) 2456, submitted that when the custody of child was

obtained by deceitful means, father is not entitled for the same.

Besides that, he relied on the decision of the Supreme Court in case

of Nithya Anand Raghavan Vs. State (NCT of Delhi) and another,

(2017) 8 SCC 454 to contend that in case of minor girl child,

guardianship of mother is of utmost significance for her personal

development. The respondent also relied on the decisions of this

Court in case of Dr. Parijat Vinod Kanetkar & ors. Vs. Mrs. Malika

Parijat Kanetkar & anr, 2017 ALL MR (Cri) 368 and Pramod Prakash

Mulik and others Vs. Manisha Pramod Mulik and another, 2019(6)

Mh.L.J.(Cri.) 653 to contend that mother should be preferred than

father in cases of custody of minor. Lastly the respondent relied on

the decision of this Court in case of Sneha Milind Kale Vs. Milind s/o

Shrikrishna Kale and others, (Criminal Writ Petition No. 93/2021) ,

decided on 26.11.2021 to state that in similar circumstances, this

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Court has preferred the mother than the father.

8. At the inception, it is worthwhile to note that the

Supreme Court in above referred case of Mausami Moitra Ganguli,

held that welfare of the child is the paramount consideration for

custody matters. Inasmuch as it is observed that in case of custody

of minor child as regards to the factual aspect of the case, the

precedents would not govern the situation. It is settled law that

question of welfare of the minor child has to be considered on the

background of the relevant facts and circumstances. Each case has

to be decided on its own facts and the other decided cases can

hardly serve the purpose.

9. The principle which can be culled out from various

decisions is that the welfare of the minor is the prime consideration

for adjudicating the issue. The Court is not bound by mere legal

rights of the parties, but the factual circumstances relating to the

welfare of child would take precedence. Undoubtedly, nothing can

stand in the way of the Court exercising its parens patriae

jurisdiction in the matter.

10. In the light of above settled position of law, the facts are

to be assessed. Admittedly, from 27.02.2021 till date i.e. for the

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period of more than 1 year and 4 months, the child is living with

her father at Hyderabad. It has come on record that

petitioner/father is living with child along with his parents, brother

and brother’s wife at Hyderabad. On the other hand, the mother is

living at village Sangadi, District Bhandara with her parents and

brother. The petitioner/father persistently made out a case that

since child was suffering from various ailments, he took her to

Hyderabad for treatment. In that regard, petitioner/father has

produced medical papers showing that the child was treated at

Neocare Children Clinic from the month of March 2021. He has also

produced medical paper to show that he took psychological

treatment for the child at MindKrafts Assessment and Counseling

Center. The medical paper discloses that the child was suffering

from skin disease, breathing and and emotional problems. The

medical paper discloses prolonged treatment for the period of six

months given at Hyderabad.

11. Besides that, the petitioner/father has admitted the

child into the playgroup namely Kidzee Trimulgherry, of which the

receipts of payment of fees from month of April 2021 to November

2021 are produced. These documents prima facie supports the

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petitioner’s contention that though he took child in the month of

February 2021, however he has extended medical treatment as well

as admitted child in the playgroup. Besides that, the petitioner has

produced an admission form of child admitted at taekwondo

academy which is an extra curricular activity. On that basis, it is

urged that the petitioner husband is looking after the well-being of

the child.

12. As against this, it is the stand of respondent/wife that

she is postgraduate and able to cater the needs of child. On query, it

is informed that respondent’s father is pensioner. At present, there is

nothing to suggest that the welfare of the child is at peril, if child

lives with the father. The matter can also be viewed from the angel

of stability and consistency of the living of the child. While dealing

with the application for interim custody, generally the custody shall

not be disturbed without adequate reasons. It is essential to see the

impact of frequent change of custody from one person to another.

One has to bear in mind that the child is living with father for the

period more than 1 year. The record indicates that during pendecy

of this petition, child was interviewed by Dr. Mrs. R. S. Sirpurkar as

a Mediator who in turn informed that the child dislikes her mother

and her reaction towards mother is adverse. During pendency,

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limited custody access was given to the mother. The report of

protection officer dated 02.05.2022 and 24.05.2022 indicates that

the child showed reluctance to meet her mother during visitation

hours.

13. The trauma that the child is likely to experience in the

event of change of custody, pending proceeding, shall have to be

necessarily borne in mind. I am conscious about tender age and

gender of the child, but still, I feel that at this interim stage of the

proceeding, it would not be appropriate to interfere in the existing

state, especially on the background of prolonged residence of child

with father.

14. The report of Mediator as well as Protection Officer

prima facie assures that the child is comfortable with his father.

Thus, considering the peculiar facts and especially the child is in

custody of petitioner/father admittedly from 27.02.2021, change in

custody in absence of cogent material that too at this interim stage

would be against the welfare and mental set up of the child.

15. Having regard to the current situation, it is in the

interest of minor to allow to prevail the situation for some time i.e.
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upto final adjudication of the proceeding by Magistrate. Considering

the nature of dispute, I find it appropriate to direct the learned

Magistrate to dispose of the petition for custody as expeditiously as

possible and in any event within three months from the date of the

receipt of this order. In view of above, both impugned orders would

not sustain in the eyes of law. Hence, following order:-

(i) Petition stands allowed and disposed of.

(ii) Impugned order dated 17.01.2022 passed by the learned

Additional Sessions Judge, Bhandara in Criminal Appeal

No. 49/2021 and order dated 24.12.2021 passed by the

Magistrate on Exh. 1 in PWDVA Appl. No. 15/2021 are

hereby quashed and set aside.

(iii) The interim custody during pendency of the proceedings

shall be continued with the petitioner/father subject to

the visitation rights in the manner provided by this Court

to the respondent/wife.

(iv) The learned Magistrate is at liberty to modifying the

arrangement of access as per convenience of parties.

(v) The Learned Magistrate is directed to decide the D. V.

Application No. P.W.D.V.A. Appl. No. 15/2021 within a

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period of three months from the date of receipt of the

intimation of this order.

16. Rule is made absolute in above terms.

JUDGE

Gohane

Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2022.06.21
10:33:30
+0530