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Gajendra Champalal Rathod vs The State Of Maharashtra And Ors on 20 June, 2019

(1)WP-1324-19.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1324 OF 2019

Shri Gajendra Champalal Rathod ] ..Petitioner.
v.
The State of Maharashtra Ors. ] ..Respondents.

Mr.Khush Khandelwal i/by Khandelwal Associates for the
Petitioner.
Mr.Girish Utangale i/by Utangale Co. for Respondent No.4.
Mr.V.B. Konde-Deshmukh, APP for the State.
Mr.Chandrakant Jadhav, PI attached to Bhayander Police
Station present.

CORAM : INDRAJIT MAHANTY
A.M. BADAR, JJ.

DATE : 20th June, 2019.

P.C.

1] This is a Writ of Habeas Corpus whereby the Petitioner is
seeking custody of his child Brijesh from the custody of

Respondent No.4- father-in-law of the Petitioner.

2] Pursuant to our earlier directions dated 13th June, 2019,
Respondent No.4 has entered appearance through counsel
and filed his reply. The police authorities are also present
and filed report. The child Brijesh is also brought by
Respondent No.4 before the Court.

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3] The case of the Petitioner is that he got married with the
deceased Varsha on 18th November, 2013 and out of the wed-
lock son Brijesh was born to them on 21st September, 2016

4] It is further averred that unfortunately the wife of the
Petitioner met with an accident while travelling in the train
and passed away on 24th December, 2018. It is further
averred that during the cremation of the petitioner’s wife,
respondent No.4 took away the child Brijesh and inspite of
requests from the Petitioner-father for the custody of the
child, the child was not handed over and hence the present
Writ of Hebeas Corpus has been filed.

5] An affidavit has been filed by the Respondent No.4 –
father-in-law of the Petitioner inter-alia stating various facts
which are not necessary to mention here, except stating in
para 16 that he intends to file an application for declaration
of guardian of Master Brijesh Gajendra Rathod before District
Court, Thane under the Guardians and SectionWards Act.

6] It appears that there was some account of dissension
between the parties and from the police report it appears that
the deceased wife of the Petitioner while working under LIC
Agent used to take the child to the house of her parents
during the time when she used to go to office and on return
from office she used to take the child back and reside in her
matrimonial house.

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7] In view of the aforesaid statement recorded in the
report, it is clear that at the most, Respondent No.4 and his
wife had temporary custody of the child during the period
during which their daughter used to go for work.

8] Learned counsel for the Petitioner placed reliance on the
Judgment rendered by this Court in the case of SectionShekhar
Jagdish Prasad Tewari vs. State of Maharashtra Ors. in
Criminal Writ Petition No.5214 of 2018 and inter alia placed
reliance upon finding of this Court in para 24, which is quoted
below :

“Having considered these rival submissions, we are of
the considered view that the father of the child is the natural
guardian u/s 6 of the Hindu Minority and SectionGuardianship Act,
1956. He is the surviving parent of the child. The child of
about 17 months of age definitely needs love, care and
affection of the father. It cannot be said that the welfare of the
child will seriously be compromised if the custody is handed
over to the father. The father is highly educated man and is
gainfully employed in a prestigious company. There is no
reason to deprive him from having custody of the child. As
observed earlier, the child is of very tender age and is not yet
capable of forming and expressing her wish. Therefore we are
of the considered view, that the father is entitled to get the
custody of his child. The ratio laid down by this Court in
Amol Pawar’s case (Supra) is squarely applicable to this
Petition.

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It would be appropriate to note there that the aforesaid
judgment relied upon by the learned counsel for the Petitioner
has also been confirmed by the Hon’ble Supreme Court vide
Judgment dated 6th May, 2019 in Criminal Appeal No.838 of
2019 arising out of SLP (Cri) No.1675 of 2019.

9] After hearing learned counsel for respective parties, we
are of the considered view that the Petitioner being the father
of the child is a lawful guardian under Section 6 of the Hindu
Minority and SectionGuardianship Act, 1956 since he is the only
surviving parent of the child. The child is presently two years
and 9 months old and definitely requires love ad affection of
his father i.e. the Petitioner. It cannot be said that the welfare
of the child will seriously be compromised if the custody is
handed over to the father.

10] It is stated on behalf of the Petitioner that the
Petitioner is working in a Realty shop as a broker and earning
sufficient money in order to look after the need of bringing up
of the child. We, therefore, find no reason to deprive the
Petitioner from having custody of the child. No doubt, the
child is of a very tender age and is not capable of forming or
expressing his desire. Therefore, we are of the considered
view that the Petitioner-father is entitled to get custody of the
child and the ratio laid down by this Court in the case of SectionAmol
Ramesh Pawar vs. The State of Maharashtra Ors. Reported
in 2014 SCC OnLine Bom 280 is squarely applicable to the
present case.

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11] After perusal of the affidavit filed by the
Respondent, we also take note of the fact that Respondent
No.4 who is father-in-law of the Petitioner and grand-father of
the the child, has every interest in the welfare of his
grandchild and has been looking after the child ever since the
death of his daughter. Hence, it is but natural that during this
period bond of love and affection would have developed
between the child and the Respondents The Petitioner was
denied access to the child since December 2018. He deserves
his sons love and affection. This is sufficient in our
considered view. It is stated on behalf of the Petitioner that
the Petitioner is residing alongwith his mother and younger
brother and his wife and adequate support is available to
look after the welfare of the child. However, there appears to
be certain acrimony between the parties. Therefore, we are
of the view that respondents may also be granted permission
to meet the child and spend quality time with the child.
Accordingly, we pass the following order :

ORDER
1] Writ Petition is allowed and rule is made absolute
by issuing writ of Habeas Corpus directing Respondent No.4
to hand over custody of the child to the Petitioner on 29 th
June, 2019, at the residence of the Petitioner between 4.00
pm to 5.00 pm.
2] Learned counsel for Respondent No.4 submits on
instructions that the Respondent undertakes to comply with

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this order. We direct the Respondent/State to provide
necessary aid to the Petitioner and Respondent, while handing
over custody of the minor child in compliance of our
directions.

3] Respondent No.4, his wife and family members
shall have right of access to the child on every Saturday and
Sunday between 9 to 6 pm at the residence of the Petitioner
and the Petitioner shall co-operate and shall not obstruct
Respondent No.4 and his family members from spending
quality time with the child during this period.

4] We further direct that on every alternate week,
respondent No.4 shall be entitled to take the child for an
overnight stay with them and for such purposes, Respondent
No.4 may take the child between 9.00 am to 10.00 am on
every alternate Saturday and return the child to the Petitioner
by 6.00 p.m. on Sunday.

5] Respondent No.4 is at liberty to initiate process
/legal remedy including application under the Guardians and
SectionWards Act and the present order shall not influence
adjudication of such application.

6] With these observations and directions Writ
Petition No.1324 of 2019 stands disposed off.

[A.M. BADAR, J] [INDRAJIT MAHANTY, J]

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