Bombay High Court: In a habeas corpus petition filed to seek the custody of child from her paternal grandmother, by the petitioner-biological father of the child, the Division Bench of Ravindra V. Ghuge and Gautam A. Ankhad*, JJ., opined that welfare of the child is of paramount importance in the custody dispute therefore, emotional bond with the child does not confer upon her a superior right to custody over that of the biological parent. Thus, the Court directed the police to take the custody of the child from the grandmother and hand him over to the father. The Court also gave directions to smoothen transition for the child while giving visitation rights to the grandmother for three months.
Background
The biological father of 5-year-old twins was married on 6-12-2014 and twins were born on 12-11-2019, through surrogacy. The daughter amongst the twins suffered from cerebral palsy. During the lockdown due to Covid-19, several disputes arose between the father and his parents. Consequently, the father filed for custody of his son, in the Family Court, while his parents filed an FIR under Sections 115(2), 126(2), and 352 of the Bharatiya Nyaya Sanhita, 2023 and Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, against the father of the child.
The Family Court proceedings were pending wherein, the paternal grandmother stated that the twin daughter was in her custody while the twin son was in the custody of the father. The father served several legal notices to the grandmother for the custody of the daughter and also filed several complaints to the police for the same. The grandmother refused to hand over the custody to the father.
Aggrieved by the same, the father filed a writ of habeas corpus before the present Court.
Analysis, Law and Decision
The Court noted that though child custody disputes are to be addressed under the Guardians and Wards Act, 1890 but in exceptional circumstances, the questions of custody can be examined within the limited scope of writ jurisdiction. The Court opined that the present case fell within such an extraordinary category and writ of habeas corpus may be issued to restore the custody of a minor to the parents where they have been unlawfully deprived of it.
The Court stated that the petitioner being the biological father and natural guardian, had an undisputed legal right to claim custody of his child. It was further opined that the grandmother may have shared an emotional bond with the child, but such attachment does not confer upon her a superior right to custody over that of the biological parent.
The Court also noted that both parents of the twins resided together and there was no marital discord between the two. Additionally, it was observed by the Court that the father of the twins was employed with Municipal Corporation of Greater Mumbai, thus, the contention of the grandmother that the father of the twins was emotionally and financially incapable of caring for his children was not justified.
The Court also observed that the grandmother was 74 years old and had herself filed a complaint to seek maintenance form her son. Therefore, the grandmother had no legal entitlement to retain custody of her grandchild. It was emphasised by the Court that child cannot be denied the care of his parents merely because of disputes between the father and grandmother. This cannot deprive the biological parents of lawful custody of their child. It was also specified that rights of the father and mother as the natural guardian, may be curtailed only if it is shown that his custody would be detrimental to the child’s welfare.
Accordingly, the Court partly allowed the writ and directed the police to secure the custody of the twin daughter from the grandmother and hand it over to the father within two weeks. The Court held that the welfare of the child is of paramount importance in the custody matters and emotional bond with the child does not confer right a superior right of custody over that of a biological parent. Additionally, to facilitate the smooth transition of custody, the Court permitted the grandmother to meet the child between 9.00am to 6.00pm at the father’s residence for initial three months and either party could approach the Family Court appropriate directions in case of any difficulty.
[Pravin Nathalal Parghi v. State of Maharashtra, 2025 SCC OnLine Bom 3100, decided on: 4-9-2025]
*Judgment authored by: Justice Gautam A. Ankhad
Advocates who appeared in this case:
Advocate for the Petitioner- M. J. Reena Rolland, Aishwarya Bhandary, Advocates
Advocate for the Respondents- Mayur Sonavane, APP; Parul Shah i/b. Pratibha Bangera, Advocate; Mohd. Rafik Gavandi, P.S.I.
