Bombay High Court
Pramod S. Zagade vs Hema Shah And Ors on 16 August, 2017
Bench: A.A. Sayed
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wp-2795-17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2795 OF 2017
...
Pramod S. Zagade ...Petitioner
v/s.
Hema Shah and ors. ...Respondents
...
None for the Petitioner.
Mr.Sandesh D.Patil a/w Jeet J. Gandhi for the Respondents Nos.9 and 11.
Mr.Y.M.Nakhawa, APP for the State.
...
CORAM : A.A. SAYED &
SARANG V.KOTWAL,JJ.
DATED : 16 AUGUST 2017
P.C.:
The matter was called out twice in the morning session, however,
none was present on behalf of the Petitioner. Even in the afternoon session
when the matter is called out, none appears on behalf of the Petitioner.
2. By this Petition filed under Articles 226 and 227 of the Constitution,
the Petitioner seeks issuance of a writ of habeas corpus for production of
two minor children and to hand over custody of the said two minor children
to him being the father and also allow him to go to United Kingdom
alongwith them.
Uday.P.Kambli 1/3
wp-2795-17.doc
3. Admittedly, the two minor children are in the custody of their
mother-Hema (Respondent No.4). In paragraphs 11 and 12 of the Petition,
the Petitioner has averred as follows:
"11. The Petitioner states that by order dated 25-01-2012 the
Hon'ble Luton Country Court, UK was pleased to make the decree
absolute and dissolve the marriage between the Petitioner and his ex-
wife Hema.
12. The Petitioner states that as per the arrangement of custody
of children between the Petitioner and his ex-wife Hema, it was agreed
that the Petitioner and his ex-wife Hema will have joint custody of the
children. It was categorically agreed that the Petitioner and Hema will
have free access to children as and when needed and required."
3. Learned Counsel for the Respondents Nos.9 and 11 has pointed
out the judgment of the Supreme Court in Nithya Anand Raghavan v/s.
State of NCT of Delhi and ors., 2017 (7) SCALE 183 and in particular
paragraph 43, which reads thus:
"43. In the present case, we are of the considered opinion that taking the
totality of the facts and circumstances of the case into account, it would
be in the best interests of the minor (Neha) to remain in custody of her
mother (Appellant) else she would be exposed to harm if separated from
the mother. We have, therefore, no hesitation in overturning the
conclusion reached by the High Court. Further we find that the High
Court was unjustly impressed by the principle of comity of courts and the
obligation of the Indian Courts to comply with a pre-existing order of the
foreign Court for return of the child and including the "first strike" principle
referred to in Surya Vadanan's case(supra)".
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wp-2795-17.doc
5. The two minor children are admittedly in the custody of their mother
and in the facts and circumstances of the case, in our opinion, their custody
cannot be said to be unlawful. The overriding consideration must be the
interest and welfare of the minor children and considering the facts of the
case, in our view, it would not be appropriate to issue directions to handover
the custody of the two minor children to the Petitioner and allow the
Petitioner alongwith the minor children to return to United Kingdom, as
prayed.
6. In our view, this not a fit case to exercise jurisdiction of this Court to
issue a writ of habeas corpus. The Petition is dismissed. There shall be no
order as to costs. The Petitioner would be at liberty to take recourse to
appropriate remedies available to him in law.
(SARANG V.KOTWAL, J.) (A.A.SAYED, J.)
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