Bombay High Court
Priyanka Ketan Katkar vs State Of Maharashtra And Ors on 7 August, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.994 OF 2023
Priyanka Ketan Katkar ..... Applicant
Versus
The State of Maharashtra
and others .... Respondents
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Mr. Prashant Pandey, Advocate a/w. Dinesh Jadhwani & Irfan
Unwala i/b. Aiqan Z. Memon for the Applicant.
Ms. M.R. Tidke, APP for the Respondent-State.
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CORAM : SARANG V. KOTWAL, J.
DATE : 07th AUGUST, 2023
P.C. :
1. The Applicant, who is the wife of the Respondent
No.2, has challenged two orders. First order is dated
14.10.2022 passed by learned Judicial Magistrate, First
Class, Thane below Exhibits-12 & 14 in PWDVA/301/2022.
Apart from other issues, the subject matter of the Application
is custody of the minor children. Clause (a) of this order
mentions that the Respondent No.2 herein was permitted to
exercise his visitation rights and keep the temporary custody
of the minor children for 24 hours on every Saturday from
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Deshmane(PS)
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6.00 p.m. to Sunday 6.00 p.m. on every weekend. The
Respondent No.2 herein was to arrange for pickup and
dropping of the children during the access time. The
Petitioner was directed to arrange conversation between the
children and the Respondent No.1 herein on video-call or
voice-call on every Tuesday and Thursday. There were other
reliefs claimed in respect of the restraining order regarding
the household. That was not considered in this order. The
said order was challenged before the Court of Sessions at
Thane. Learned Additional Sessions Judge,Thane vide his
order dated 25.7.2023 passed in PWDVA Appeal
No.68/2022, allowed the appeal partly. The relevant clause
(2) of the operative part reads thus :
"2. The common order dated 14.10.2022 passed by the
learned J.M.F.C. (2nd Court), Thane is maintained to
the extent of the same below Exh.12 in D.V.
Application No.301/2022, however, the application
(Exh.14) is hereby restored to its original file and
remitted back to the learned Magistrate for deciding
afresh to the extent of grant or refusal of
injunction."
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2. This Petition is filed challenging these two
orders.
3. Heard Mr. Prashant Pandey, learned counsel for
the Applicant and Ms. M.R. Tidke, APP for the Respondent-
State.
4. Learned counsel for the Applicant invited my
attention to the order dated 25.8.2022 passed by a Division
Bench of this Court in Criminal Writ Petition No.2571/2022.
It was a Habeas Corpus Petition. The case of the Applicant
was that their twin children were taken away by the
Respondent No.2 herein without the Applicant's permission.
The Applicant was a natural guardian. The Division Bench
observed that the husband, without resorting to any process
of law to secure the custody of the children, who were with
their mother, the natural guardian, had brazenly taken them
away by force. Such conduct could not be countenanced
and, therefore, intervention of this Court was necessary.
Accordingly, the husband i.e. the Respondent No.2 herein
was directed to hand over the custody of the children to the
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Applicant.
5. Learned counsel for the Applicant submitted that
the custody was handed over to the Applicant and since
August, 2022 they are in the custody of the Applicant i.e. the
mother of the children.
6. He submitted that in view of this order and in
view of the past conduct of the husband i.e. the Respondent
No.2 herein, it was not proper to give custody of the children
to the Respondent No.2 for 24 hours including the stay
during the night.
7. I have considered these submissions and I have
perused the impugned order. It is necessary to hear the
other side. However, till they are heard I have considered the
question of granting stay to the impugned orders. In that
context, learned counsel for the Applicant very fairly
submitted that after the order of the Sessions Court, the
husband i.e. the Respondent No.2 had taken custody of the
children on 5.8.2023 and had returned them in the custody
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of the Applicant though they were returned four hours late.
Learned Magistrate referred to the order passed by this
Court in the case of Payal Sharma Vs. Sudeep Govind Laad &
Anr. in Criminal Application No.186/2018. He referred to
the following observations of that judgment :
"the children have right to know and be cared for
by both their parents regardless of whether their
parents are married, separated, divorced, have
never married or have never leave together and
children have a right to spend time on a regular
basis with both parents and other people
significant to their case, welfare and development
including grandparents and family members. It is
further observed that overnight access at home of
the non custodial parents should be encouraged at
an early stage, so that the children have a closed
and continuing relationships and get love and
affection of not only parents but also a
grandparents and other immediate family members
like uncles, aunts, cousins etc."
Learned Judge also observed that the paramount
consideration was the welfare of the children. They should
spend equal and substantial time with each parent. They
have right to spend time on regular basis with both the
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parents. In case the visitation rights are not given to the
father, a minor child would be deprived of the father's love
and affection. The smooth and proper development of a
child requires affection of both parents. Learned Additional
Sessions Judge concurred with these observations and the
order of granting visitation rights including custody of the
children for 24 hours was upheld.
8. At this stage, without expressing anything more
on the merits of the matter, I am inclined to agree with the
observations of learned Magistrate that the father's presence
in the children's life is also equally important. The father i.e.
the Respondent No.2 has established his bonafides by
abiding with the condition of returning the children when he
was given custody on 5th & 6th August, 2023. Though he was
little late on returning the custody, he has not taken any
wrong advantage of the order, which as of today is in his
favour. Therefore, at this stage, I am not inclined to grant
immediate stay to the arrangement made by learned
Magistrate without hearing the other side. Hence, the
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following order:
:: O R D E R ::
i. Issue notice to the Respondent No.2, returnable on
29.8.2023.
ii. It is needless to add that the Applicant's other
application for other reliefs can be independently
decided expeditiously by learned Magistrate.
iii. Stand over to 29.8.2023.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
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