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Shekhar Jagdish Prasad Tewari vs The State Of Maharashtra And Ors on 6 February, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5214 OF 2018

Shekhar Jagdish Prasad Tewari.
aged 47 years, Indian Inhabitant,
permanently residing at,
803, Skylark, Sector-6, Kharghar,
Raigad – 410 210, Maharashtra. … Petitioner

Versus

1. State of Maharashtra,
(Through the Director General of Police,
Office of the DIG, Police Headquarters,
Shahid Bhagat Singh Road,
Mumbai – 400 001).

2. The Commissioner of Police,
Office of the Commissioner of Police,
Crawford Market, Mumbai – 400 001.

3. The Commissioner of Police,
Office of the Commissioner of Police,
Pune City, Pune.

4. The Senior Inspector of Police,
Dattawadi Police Station, Pune.

5. Shri Samir Pardeshi,
Permanently residing at,
16, Sagar Society, Near Rajivwade Udyan,
Sahakar Nagar-2, Pune – 411 009.

6. Ms. Anita Pardeshi
Indian Inhabitant.

Nesarikar

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7. Smt. Tejaswini Gaud
Indian Inhabitant.

8. Dr. Pradeep Gaud
Indian Inhabitant.
(Respondent Nos.6 yo 8 residing at,
A-10, 3rd Floor, Sagar Darshan, Off. Carter
Road, Opp. YMCA, Khar,
Mumbai-400 052.) … Respondents

…….

• Mr. Subhash Jha a/w Ms. Sanjana Pardeshi Ms. Ankita
Pawar i/b Law Global for Petitioner.
• Mrs. M. M. Deshmukh, APP for State.
• Ms. Flavia Agnes a/w Mr. Prasad Shenoy Ms. Bindiya Rao
for Respondent Nos.5 to 8.

CORAM : INDRAJIT MAHANTY
SARANG V. KOTWAL, JJ.
RESERVED ON : 28th JANUARY, 2019
PRONOUNCED ON : 06th FEBRUARY, 2019

JUDGMENT (PER : SARANG V. KOTWAL, J.) :-

1. Rule.

2. Rule is made returnable forthwith and the Petition is

heard finally with the consent of both the parties.

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3. By this Petition, the Petitioner is seeking issuance of

writ of habeas corpus, directing the Respondents to produce his

minor daughter in the Court and hand over her custody to the

Petitioner.

4. The Respondent No.1 is the State of Maharashtra and

the Respondent Nos.2 to 4 are various police officers. The

Respondent No.5 is the brother of the Petitioner’s deceased wife

Zelam. Respondent Nos.6 and 7 are Zelam’s sisters and the

Respondent No.8 is the husband of Respondent No.7.

5. The facts in the present case have a backdrop of

unfortunate situations and tragedy. To a large extent the

misfortune of the concerned parties still continues resulting in

bitter battle for the child’s custody. A 17 months old child is

dragged in this battle. The child in question has already lost her

mother, within about 14 months of her birth. At the time of

filing of this Petition, the child was in custody of the Respondent

Nos.5 to 8 and Respondent Nos.6 and 7 in particular are looking

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after her. The Petitioner is claiming custody of the child being

the only surviving natural guardian of the child.

6. Apart from the basic facts necessary for decision of this

Petition, the Petitioner as well as Respondent Nos.5 to 8 have

averred many facts touching upon the acrimonious relationship

between the Petitioner and those Respondents. However, we do

not deem it necessary to comment on these facts or decide on

these issues except wherever they are necessary to be referred to

for the decision of this Petition. Both the learned Counsel

representing their respective clients, in their wisdom have not

emphasized on these contentious and bitter issues, keeping in

mind the future of the child. We appreciate their approach in

arguing this Petition before us.

7. The Petitioner is a Post-Graduate in Management from

Indian Institute of Management, Indore, which is a highly

reputed institution in the field. He has satisfying career of about

past 25 years and is working with Wipro Limited as a Principal

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Consultant. The Petitioner got married with Zelam on

28/05/2006 at Navi Mumbai. During 5th month of her

pregnancy, in May 2017, Zelam was detected to be suffering

from breast cancer. The child was born on 14/08/2017. On

29/11/2017, the Petitioner himself collapsed from his own illness

and he was detected to be suffering from Tuberculosis and

Meningitis. The Petitioner himself had to undergo hospitalization

in different hospitals for a prolonged period. In the Petition, the

Petitioner has stated that after due medication and treatment, he is

cured and is healthy.

8. It is undisputed that since Zelam was suffering from

terminal illness and since the Petitioner himself was hospitalized

for a serious ailment, the child was looked after by the

aforementioned Respondents.

9. On 17/10/2018 Zelam succumbed to her illness. The

child continued to be in custody of Respondent Nos.5 to 8. It is

the case of Petitioner that on 17/11/2018 he visited Pune to

seek custody of his child from Respondent Nos.5 to 7. The

Petitioner even gave a complaint to Dattawadi Police Station on

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the same day. The Petitioner had also lodged the complaint with

Kharghar Police Station on 06/11/2018. The Police Officer in

charge of Kharghar Police Station told him to seek appropriate

relief from the Court.

10. Learned Counsel Mr.Subhash Jha for the Petitioner,

submitted that u/s 6 of the Hindu Minority and Guardianship

Act, 1956, the Petitioner is the only natural guardian of the child

being her father. According to Mr.Jha, the Respondent Nos.5 to

8 have no legal authority to retain child’s custody. He submitted

that since the Respondent Nos.5 to 8 have no authority to retain

the custody of the child, their refusal to hand over the custody

amounts to illegal detention of the child and therefore writ of

habeas corpus was the proper remedy available to the Petitioner

to seek redressal of his grievance. In support of his contention

Mr.Subhash Jha relied on a few judgments.

11. Mr.Jha invited our attention to the observations made

by the Hon’ble Supreme Court in the case of Gohar Begam Vs.

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Suggi Alias Nazma Begam and Others, reported in AIR 1960

SC 93. In this case, the mother was claiming custody of her

daughter, who was raised by the mother’s maternal aunt and the

Respondent in that case had no legal right to the custody of the

child. The Hon’ble Supreme Court took into consideration the

issue of interest and welfare of the minor. It was observed in the

said case that it was not necessary for the mother to proceed

under the Guardian and Wards Act for recovering the custody of

child though she had the right to do so. It was held that the

mother had also clear right to an order for the custody of the

child u/s 491 of Code of Criminal Procedure, 1898. It was held

that the mother having right under the Guardians And Wards

Act, was no justification for denying her right u/s 491 of Code of

Criminal Procedure, 1898.

12. Relying on this judgment, Mr.Jha submitted that in

view of the observations of the Hon’ble Supreme Court, the

instant case is also a case of illegal detention. The Petitioner has

a legal right to the custody of the child and therefore the writ of

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habeas corpus can be issued in this case. He further submitted

that the Petitioner should not be left to pursue his remedies

under other laws.

13. Mr.Jha thereafter relied on the judgment of High Court

of Karnataka in the case of Smt Manju Malini Sheshachalam

D/o Mr. R. Sheshachalam Vs. Vijay Thirugnanam S/o

Thivugnanam Ors. Reported in 2018 SCC OnLine Kar 621.

In this case, the Petitioner was the mother of the child. The child

was looked after and raised initially by her sister and sister’s

husband. The Respondents got attached to the child and refused

to part with the child. The Karnataka High Court relied on the

judgment of Gohar Begam (supra) and few others and

ultimately held that the moment the Respondent Nos.1 and 2

refused to hand over the custody of the minor to the Petitioner,

who was the natural guardian, the detention of the child with

the Respondents became illegal detention and the Writ for

Habeas Corpus was maintainable.

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14. Mr.Jha further relied on the judgment of this Court in

the case of Amol Ramesh Pawar Vs/ The State of Maharashtra

Ors. Reported in 2014 SCC OnLine Bom 280. In that case,

the Petitioner-father of the child was tried for committing

murder of his wife i.e. mother of his child and the at the end of

the trial he was acquitted. In the meantime, the child remained

in custody of the Respondent No.6 in that case. It was argued

that the consideration of the welfare of the child demanded that

the child be retained by the Respondent No.6 in that case.

However, this Court held thus;

“9. The Petitioner being the father of the child is the
natural guardian. The Petitioner was prosecuted
for an offence punishable under Section 498-A and
302 of the Indian Penal Code. The Petitioner has
been acquitted of the said offence by the judgment
of the Additional Sessions Judge, Satara, in
Sessions Case No.120 of 2012 by judgment dated
26 April 2013. Since the judgment is of the year
2013 and practically 22 months have passed, no
appeal against acquittal was filed by the State.
Counsel for the Respondent now informs us that an

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appeal against acquittal has been filed in the Court
by Respondent No.6. However, since the Petitioner
has been acquitted and the Petitioner is the natural
guardian of the minor child, the Petitioner cannot
be deprived from obtaining the custody of his minor
child. If the Respondents feel that the Petitioner is
disentitled to continue the custody of the minor, the
Respondent may avail remedies available in law.
The question is as to whether the welfare of the
minor would warrant the handing over the custody
of the minor to any other person is a question
which can only be decided after the evidence of the
parties is recorded and certainly not in this
Petition. The Respondent, however, would be at
liberty to file appropriate proceedings under the
Hindu Minority and Guardianship Act for claiming
custody of the minor child. The said proceedings if
they are filed by Respondent No.6 would be decided
in accordance with law. Presently the Petitioner
being the father cannot be deprived the custody of
his minor child.

10. We accordingly allow this Writ Petition and make
rule absolute by issuing the Writ of Habeas Corpus
directing Respondent No.6 to hand over the custody
of the minor child Tejas to the Petitioner. In the

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event the custody of the minor child is not handed
over to the Petitioner, we direct the Respondent
State to provide the necessary aid to the Petitioner
for taking the custody of the minor child. We
accordingly direct the officer in-charge of the
Baramati Police Station to provide the necessary
aid to the Petitioner for taking custody of the minor
child from Respondent No.6.”

15. In reply to the contentions raised by learned Counsel

Mr.Jha, learned Counsel Ms. Flavia Agnes for Respondent Nos.5

to 8 made her submissions opposing grant of relief as claimed by

the Petitioner. Ms.Agnes submitted that in case of this nature,

the question of welfare of the child is of paramount

consideration and must supersede the legal rights of the parties.

She submitted that the custody of the child was handed over to

the Respondents by the ailing mother of the child. The mother

had expressed her wish that the Respondents should take care of

the child. Ms.Agnes submitted that the Respondents are taking

good care of the child and they are fulfilling their promise made

to the mother of the child. She submitted that the child is

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attached to these Respondents and handing over her custody to

the Petitioner would affect the child adversely. She submitted

that at least for few years this arrangement can be continued, in

the meantime, the Petitioner can have access to the child and

develop strong bond with the child. She submitted that, custody

can be handed over to him after a few years.

16. In support of her contention, learned Counsel

Ms.Agnes relied on a few judgments. Ms.Agnes first relied on the

judgment of the Hon’ble Supreme Court in the case of

Kirtikumar Maheshankar Joshi Vs. Pradipkumar

Karunashanker Joshi reported in (1992) 3 Supreme Court

Cases 573, In that case, the Honour’ble Supreme Court

considered the issue of custody of the children. After the

unnatural death of mother, children were living with their

maternal uncle. The father was facing charge u/s 498-A of the

Indian Penal Code. The Honour’ble Supreme Court has taken

into consideration the will of the children. They expressed their

willingness to remain with their maternal uncle, who according

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to them, was looking after them very well. The children did not

want to live with their father. In that case, the Honour’ble

Supreme Court permitted the maternal uncle to retain the

custody of the children, though the father had preferential right

to the custody being a natural guardian. In this case, the

Honour’ble Supreme Court has taken into consideration wishes

of children and accordingly passed the order. In the instant case

before us, the child is of a tender age and hence is too young to

express or even form her wish. Therefore the facts and ratio of

this case will not be applicable to the instant case.

17. Ms.Agnes then relied on the judgment of Athar

Hussain Vs. Syed Siraj Ahmed and Others reported in (2010)

2 Supreme Court Cases 654. In this case, the father of two

minor children aged about 13 and 5 years was seeking their

custody from the children’s maternal aunt. The case was

pending before the Family Court under the Guardians and

Wards Act, 1890, between the parties. In this background the

Hon’ble Supreme Court held thus;

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“31. We are mindful of the fact that, as far as the matter
of guardianship is concerned, the prima facie case
lies in favour of the father as under Section 19 of
the Guardians and Wards Act, unless the father is
not fit to be a guardian, the Court has no
jurisdiction to appoint another guardian. It is also
true that the respondents, despite the voluminous
allegations levelled against the appellant have not
been able to prove that he is not fit to take care of
the minor children, nor has the Family Court or the
High Court found him so. However, the question of
custody is different from the question of
guardianship. Father can continue to be the natural
guardian of the children; however, the
considerations pertaining to the welfare of the child
may indicate lawful custody with another friend or
relative as serving his/her interest better.

34. Thus the question of guardianship can be
independent of and distinct from that of custody in
the facts and circumstances of each case.

35. Keeping in mind the paramount consideration of
welfare of the children, we are not inclined to

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disturb their custody which currently rests with
their maternal relatives as the scope of this order is
limited to determining with which of the contesting
parties the minors should stay till the disposal of
the application for guardianship. ”

Ms. Agnes therefore submitted that the ratio of this

judgment lays down that irrespective of father being natural

guardian, the custody was still given to the maternal relatives of

the children keeping in view the welfare of the children as the

paramount consideration. She therefore submitted that the ratio

of this judgment is applicable to the facts of the present case.

18. In the said case in paragraph Nos.52 and 55, the

Hon’ble Supreme Court has held thus;

“52. The High court had relied heavily on the
preference made by Athiya Ali who then was 10 to
11 years old. In the opinion of High Court, she was
capable of making intelligent preference. It may be
true that 11 years is a tender age and her
preference cannot be conclusive. The contention of

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the appellant in this respect is also supported by the
decision in Bal Krishna Pandey case (supra). But as
we are not dealing with the question of
guardianship, but only with the issue of interim
custody, we see no reason why the preference of the
elder child shall be overlooked. It may be noted
that the Family Court had considered the fact that
the younger child had instinctively approached his
father while he met him in the Court premises
while vacating the interim order of injunction. The
second child who is just four years’ old cannot form
an intelligent opinion as to who would be the right
person to look after him and, hence, we must give
weight to the preference that Athiya had expressed.

55. We, however, make it clear that the observations
made in the order of the High Court as well as by
this Court, if there be any, shall not be taken to be
final while deciding the original application filed
under Sections 7, 9 and 17 of the Act and the
Family Court shall be at liberty to proceed with the
disposal of the said proceeding independently of
any of the observations made by this Court in this
judgment. ”

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19. Therefore, in that case, the wish of at least the elder

child was taken into consideration. The litigation was already

pending before the Family Court for guardianship of the

children. On these aspects, the present case differs from the facts

in Athar Hussain’s case (supra). In addition to this, in Athar

Hussain’s case the father of the children seeking custody had

remarried. In the instant case before us all these situations are

not present and therefore Athar Hussain’s case will not help

Ms.Agnes in advancing her submissions.

20. Ms.Agnes then relied on the case of G. Eva Mary

Elezabath Vs. Jayaraj and Others reported in AIR 2005 Mad

452. In this case, the father abandoned his one month old male

child in the Church premises and left the place. The child was

raised by a third person at the instance of Church Director.

While deciding the question of custody of the child, the Madras

High Court held that the custody of the child could be retained

by the person who raised the child and it was open to the father

to approach the Family Court to establish his right. In this

decision the welfare of the child was primarily considered. Thus,

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Ms.Agnes again submitted that in the all these judgments,

welfare of the child was of paramount importance irrespective of

the legal rights of the parties.

21. In the case of G. Eva the facts were harsh. The father

had abandoned his infant child in the Church premises and after

about a couple of years was seeking his custody. In this

background, the Madras High Court refused to hand over

custody of the child to the father in the Habeas Corpus Petition.

22. The situation in the instance case before us is

completely different. The Petitioner had never abandoned the

child. Only the circumstances involving his health prevented him

from taking care of the child and therefore ratio of G.Eva’s case

will not be applicable in the present facts before us.

23. Ms.Agnes also relied on a few judgments involving

issue of custody of child between husband and wife. In those

cases, the custody was sought by both the parents who were in

any case natural guardians as mentioned u/s 6 of the Hindu

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Minority and Guardianship Act, 1956. Though the order of

preference is specifically mentioned in section 6, the dispute

between the mother and father of the child for his custody is

completely different from the dispute between one of the

parents and other relatives of the child.

24. 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 Guardianship 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

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his child. The ratio laid down by this Court in Amol Pawar’s Case

(Supra) is squarely applicable to this Petition.

25. Having observed thus, we have to take into account

the position of the Respondent Nos.5 to 8. When the child had

lost her mother and when the father was hospitalized for a

serious ailment, these Respondents have looked after the child.

It is not contention of the Petitioner that the child was not taken

care of or was not properly looked after. It is but natural that

during all this period, the bond of love, affection would develop

between the child and those Respondents. Though, the father

has had no such opportunity, he deserves his daughter’s love

and affection. In this situation, in our considered view, it is only

just and proper that the efforts put by these Respondents is

recognized. However, there appears to be some serious

acrimony between the parties. Therefore we are inclined to

grant access only to the Respondent Nos.6 and 7 to meet the

child and spend quality time with the child. In these

circumstances, we pass the following order;

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ORDER
(i) The Petition is allowed and the Rule is made

absolute by issuing Writ of Habeas Corpus directing
the Respondent Nos.5 to 8 to hand over the custody
of the child Shikha to the Petitioner within a period
of 15 days from today. In the event, which we
earnestly hope will not become necessary, the
custody of minor child is not handed over to the
Petitioner, we direct the Respondent/State to
provide the necessary aid to the Petitioner for taking
custody of the minor child.

(ii) The Respondent Nos.6 and 7 shall have access to the
child every Sunday between 09.00 a.m. to 06.00
p.m. at the residence of the Petitioner. The Petitioner
shall cooperate and shall not obstruct the
Respondent Nos.6 and 7 from spending time with
the child during this period.

(iii) Parties are at liberty to initiate and pursue other
remedies as may be available in accordance with the
law.

(iv) Rule is made absolute in the aforesaid terms.

(SARANG V. KOTWAL, J.) (INDRAJIT MAHANTY, J.)

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