Bombay High Court
Shahna Garg Advani vs State Of Maharashtra And Anr on 28 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:19122-DB
Gokhale 1 of 17 wp-st-10982-24 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 10982 OF 2024
Shahna Garg Advani ..Petitioner
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
INTERIM APPLICATION (ST) NO. 25948 OF 2024
IN
CRIMINAL WRIT PETITION (ST) NO. 10982 OF 2024
__________
Mr. Vikram Deshmukh i/b. MS Legal for Petitioner.
Mr. B.V. Holambe Patil, APP for State/Respondent.
Mr. Mahesh Jethmalani, Sr. Advocate (appeared through V.C.) a/w.
Ms. Gunjan Mangla, Pooja Jalan and Jimi Jakhadi for the
Respondent No.2.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
RESERVED ON : 17 APRIL 2025
PRONOUNCED ON : 28 APRIL 2025
ORDER:
(Per Sarang V. Kotwal, J.)
1. Heard Mr. Vikram Deshmukh, learned counsel for the
Petitioner, Mr. Holambe-Patil, learned APP for the State and
Mr. Mahesh Jethmalani, learned Senior Counsel for the
Respondent No.2.
VINOD
BHASKAR
GOKHALE
2 of 17 wp-st-10982-24 (J)
2. This is yet another case where the child is an innocent
victim in the bitter battle between his own parents. The petition is
filed by the mother of a 10 year old child. The Petition is filed for
directing the Respondent No.2-father of the child to produce the
child before the Court and with further directions to restore the
custody of the child with the Petitioner.
3. The parties, in the background of their unending
grievances with each other, have filed voluminous pleadings and
counter pleadings. However, basic facts as reflected from the
petition are as follows:
The Petitioner got married with the Respondent No.2
on 28.11.2012 and started residing with him in their matrimonial
house at Woodlands Apartment, Peddar Road, Mumbai. The
Respondent No.2 had family business that runs a hotel/resort in
Goa. The couple shifted to Goa. They were blessed with a baby boy
on 14.01.2015, who is the innocent victim in this case. The child
was born in USA at the instance of the Respondent No.2 as he
wished that the minor child should hold an American passport.
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There are other allegations in the petition against the Respondent
No.2 regarding his other relationships. There are allegations that,
even the Respondent No.2's family illtreated the Petitioner and her
family. For better prospects in education for the minor child, the
Petitioner decided to shift back to Mumbai. It was felt necessary
that the matrimonial house needed renovation and, therefore, the
Petitioner, the Respondent No.2 and their child shifted to a house
taken on leave and license basis. In February 2024, the Petitioner
came to know that the Respondent No.2 had terminated the lease
of that house a year earlier by writing to the landlord, but the
Petitioner was not informed about the same by the Respondent
No.2. According to the Petitioner, the Respondent No.2's mother
had categorically told her that the Petitioner was not welcome in
the matrimonial house. On 25.03.2024, the Petitioner went to New
York to meet the Respondent No.2's brother to find a solution for
her matrimonial discord. She returned to Mumbai on 08.04.2024.
She found that the Respondent No.2 had employed a security
guard who used to stay in the house. He had planted 8 cameras in
the house. It is mentioned in the petition that the Respondent No.2
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deceitfully obtained the child's passport from the Petitioner. On
28.04.2024, when the Petitioner's mother had come to Mumbai
from Delhi, the Respondent No.2 created a scene and made his
displeasure known. The Respondent No.2 started tutoring the child
with negative emotions against the Petitioner and her family. It is
further mentioned that, on 30.04.2024, the Petitioner approached
N.M.Joshi Marg police station with a complaint under sections
341, 354, 498A and 506 r/w. 34 of the I.P.C. and U/s.4 of the
Dowry Prohibition Act. The police called the Petitioner and the
Respondent No.2 for a joint meeting. On 30.04.2024, the
Respondent No.2, without the consent and knowledge of the
Petitioner, took the child from the house where they were residing.
The child was taken to their house at Peddar Road. The child was
kept away from her. Basically, on these facts the present petition is
filed.
4. The Respondent No.2 has filed Affidavit in reply putting
forth his own side of the story. One of the main contentions raised
in the Affidavit in reply was that, the child was suffering from fear
and anxiety and, therefore, he had to attend counselling sessions
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with a Counselor Dr. Philip Trenchard, based in U.K. According to
the Respondent No.2, it was always their intention and desire that
the child should eventually go to a University in USA and thus
integrating him into the US education system at an early age was
beneficial for him. The Respondent No.2 himself had studied at
Cornell University, USA. The Petitioner had also studied at Pratt
School of Design, New York and had spent a few years working in
the USA.
5. Learned counsel appearing for the Petitioner made the
following submissions:
SUBMISSIONS BY MR. VIKRAM DESHMUKH, LEARNED COUNSEL
FOR THE PETITIONER:
He submitted that the habeas corpus petition by one
parent against the other when the child is taken away deceitfully,
is maintainable. The Petitioner has filed the proceedings U/s.23 of
the Protection of Women from Domestic Violence Act (for short
'D.V.Act'), but it is necessary to restore the custody of the child
with the Petitioner as the child is taken away deceitfully. The child
is completely brainwashed by the Respondent No.2-father and
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hence, it is not good for the child's all around development. The
mother's love and affection is more important for the child. He
submitted that the WhatsApp messages exchanged between the
petitioner and the child show that, in spite of her best efforts the
child is not showing any willingness to even talk to her; which
shows that he was completely brainwashed. In fact, this
demonstrates that it is not the child but the father who was writing
all the WhatsApp messages. The Respondent No.2-husband is a
Green Card holder and, therefore, he has to stay in USA at least for
160 days. His parents are above 80 years of age, therefore, it is not
possible for them to look-after the child. Therefore, when the
Respondent No.2 is not in India, the child would not be looked
after properly. The Petitioner is the only person who can take care
of the child properly. He submitted that the child wrote some
messages in his own handwriting which show that it cannot be
thoughts of a 10 year old child. All this is affecting the proper
development of the child. The Petitioner has filed proceedings
U/s.23 of the D.V. Act before the then Metropolitan Magistrate,
now, J.M.F.C., 40th Court, Girgaum, Mumbai, in the year 2024; in
7 of 17 wp-st-10982-24 (J)
which, the first prayer is for directions to restrain the Respondent
No.2 and his family from removing the minor son from the care
and custody of the Petitioner-mother. In support of his case,
learned counsel relied on the following judgments:
i) Gautam Kumar Das Versus NCT of Delhi and others1
ii) Imambandi and others v. Sheikh Haji Mutsaddi and
others2
iii) Meethiyan Sidhiqu Versus Muhammed Kunju Pareeth
Kutty and others3
iv) Wahidunissa Begum w/o Abdul Wahid and another vs.
Shaikh Abdulla s/o SK. Maheboob4
v) Dadu Nemisha Balwan (since deceased) through L.Rs.
Hirabai Dadu Balwan and others vs. Sadik Malikso Bargir and
others5
6. As against these submissions, Mr. Mahesh Jethmalani,
learned Senior Counsel for the Respondent No.2 made the
following submissions:
1 (2024) 10 Supreme Court Cases 588
2 Privy Council - 518 The Law Weekly 1919
3 (1996) 7 Supreme Court Cases 436
4 2000(1) Mh.L.J. 136
5 2020(3) Mh.L.J. 874
8 of 17 wp-st-10982-24 (J)
SUBMISSIONS OF MR. MAHESH JETHMALANI, LEARNED
SENIOR COUNSEL FOR THE RESPONDENT NO.2.
Mr. Jethmalani relied on the provisions of the Hindu
Minority and Guardianship Act, 1956. He submitted that, as per
Section 2, the said Act is in addition to, and not, save as expressly
provided, in derogation of, the Guardians and Wards Act, 1890. He
referred to the over-riding effect of this Act under section 5. He
referred to Section 6(a) of the said Act to show who is the natural
guardian of a Hindu minor. He also referred to Section 13 which
speaks about the welfare of a minor. In support of his contention,
he relied on the Judgments of the Hon'ble Supreme Court in the
case of i) Nithya Anand Raghavan Versus State (NCT of Delhi) and
another6, ii) Jose Antonio Zalba Diez Del Corral alias Jose Antonio
Zalba Versus State of West Bengal and others 7 and iii) Tejaswini
Gaud and others Versus Shekhar Jagdish Prasad Tewari and
others8, iv) Nirmala Versus Kulwant Singh and others 9 and v)
Somprabha Rana and others Versus State of Madhya Pradesh and
others10.
6 (2017) 8 Supreme Court Cases 454
7 2021 SCC OnLine SC 3434
8 (2019) 7 Supreme Court Cases 42
9 2024 SCC OnLine SC 758
10 (2024) 9 Supreme Court Cases 382
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REASONS AND CONCLUSION:
7. We have considered these submissions. Section 5 of the
Hindu Minority and Guardianship Act, 1956 has an over-riding
effect as mentioned by Mr. Jethmalani. Section 6 of the said Act
lays down as to who is the natural guardian of a Hindu minor in
respect of his person and his property.
Section 6 of the Hindu Minority and Guardianship Act,
1956 reads thus:
"6 - Natural guardians of a Hindu minor.- The natural
guardians of a Hindu minor, in respect of the minor's person
as well as in respect of the minor's property (excluding his or
her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father,
and after him, the mother; provided that the custody
of a minor who has not completed the age of five
years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this
section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world
by becoming a hermit (vanaprastha) or an ascetic
(yati or sanyasi).
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Explanation.--In this section the expressions "father" and
"mother" do not include a step-father and a step-mother."
Thus, Section 6 clearly states that, in case of a minor boy, the
father is the natural guardian. The boy is now 10 years of age and
is residing with his father as of today.
8. Section 13 of the Hindu Minority and Guardianship Act,
speaks about the welfare of a minor which should be the
paramount consideration. Section 13 reads thus:
"13 - Welfare of minor to be paramount consideration - (1)
In the appointment of declaration of any person as guardian of
a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of
the provisions of this Act or of any law relating to guardianship
in marriage among Hindus, if the court is of opinion that his or
her guardianship will not be for the welfare of the minor."
This provision, as mentioned U/s.2 of the Hindu
Minority and Guardianship Act will have to be read along with the
provisions of the Guardians and Wards Act, 1890.
The corresponding important provision in the
Guardians and Wards Act is Section 17; which reads thus:
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"17. Matters to be considered by the Court in appointing
guardian - (1) In appointing or declaring the guardian of a
minor, the Court shall, subject to the provisions of this
section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to be
for the welfare of the minor.
(2) In considering what will be for the welfare of the minor,
the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference,
the Court may consider that preference.
(4)[omitted]
(5) The Court shall not appoint or declare any person to be a
guardian against his will.
Therefore, the Court will have to consider all these
factors to reach at the satisfaction as to who should have custody
of the child. The welfare of the child is the most important aspect.
It is held so in the case of Tejaswini Gaud. The relevant
paragraphs-19, 20 and 26 are as follows.
19. Habeas corpus proceedings is not to justify or
examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of the
child is addressed to the discretion of the court. Habeas
corpus is a prerogative writ which is an extraordinary
remedy and the writ is issued where in the circumstances of
the particular case, ordinary remedy provided by the law is
either not available or is ineffective; otherwise a writ will
12 of 17 wp-st-10982-24 (J)
not be issued. In child custody matters, the power of the
High Court in granting the writ is qualified only in cases
where the detention of a minor by a person who is not
entitled to his legal custody. In view of the pronouncement
on the issue in question by the Supreme Court and the High
Courts, in our view, in child custody matters, the writ of
habeas corpus is maintainable where it is proved that the
detention of a minor child by a parent or others was illegal
and without any authority of law.
20. In child custody matters, the ordinary remedy lies
only under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases
arising out of the proceedings under the Guardians and
Wards Act, the jurisdiction of the court is determined by
whether the minor ordinarily resides within the area on
which the court exercises such jurisdiction. There are
significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a
writ court which is of summary in nature. What is important
is the welfare of the child. In the writ court, rights are
determined only on the basis of affidavits. Where the court
is of the view that a detailed enquiry is required, the court
may decline to exercise the extraordinary jurisdiction and
direct the parties to approach the civil court. It is only in
exceptional cases, the rights of the parties to the custody of
the minor will be determined in exercise of extraordinary
jurisdiction on a petition for habeas corpus.
Welfare of the minor child is the paramount consideration
"26. The court while deciding the child custody cases is
not bound by the mere legal right of the parent or guardian.
Though the provisions of the special statutes govern the
rights of the parents or guardians, but the welfare of the
minor is the supreme consideration in cases concerning
custody of the minor child. The paramount consideration for
the court ought to be child interest and welfare of the child."
13 of 17 wp-st-10982-24 (J)
What follows from this Judgment is that, welfare of the
child is of supreme consideration in such cases. The ordinary
remedy lies only under the Hindu Minority and Guardianship Act
or the Guardians and Wards Act, as the case may be. The power of
the High Court in granting a writ is qualified only in cases where
the detention of a minor is by a person who is not entitled to his
legal custody. The writ of habeas corpus is maintainable where it is
proved that the detention of a minor child by a parent or others
was illegal and without any authority of law.
9. In the present case, on all these considerations, we are of
the opinion that the petition cannot succeed. The father is the
natural guardian. The child's custody cannot be termed as illegal
custody. The disputed questions raised by the Petitioner cannot be
decided conclusively in habeas corpus petition as the procedure is
summary in nature. Welfare of the child is the paramount
consideration.
10. In this context, it must be noted that, before closing the
matter for orders, we interviewed the child in our chambers. We
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found him to be an intelligent child. He was giving proper answers
politely. Even, at this age, he was sure as to what education he
wanted to pursue in future. Finding him to be an intelligent child,
we specifically asked his desire and wish about residing with the
Petitioner or with the Respondent No.2. On this, he specifically
told us that he wishes to reside with his father i.e. the Respondent
No.2 and not with the Petitioner. He told us that, he is always
under a constant fear that the Petitioner may take him away from
his father and that he may not be able to meet his father again.
It is a possibility that since the child is with the father
for a few months now, the father could have conditioned his mind
by tutoring. But at this stage, the boy very specifically told us his
wish and, therefore, we are not inclined to take away the child
from the Respondent No.2 and give the custody to the Petitioner.
The Petitioner, of course has an option to exercise a remedy under
both the above Acts, as the case may be, by approaching the
competent Court and leading the evidence to prove as to what
would be the welfare of the child in the facts of the case. But for
that purpose, elaborate leading of evidence will be necessary.
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Similarly, there should be proper counselling session where it can
be decided whether the boy's mind is tutored by the father. All this
exercise is not possible while deciding the habeas corpus petition,
which is summary in nature. Similar view is taken by the Hon'ble
Supreme Court in the case of Nirmala. The paragraph-19 of the
said Judgment reads thus:
"19. We are of the considered view that in the peculiar facts
and circumstances of the case, the High Court ought not to
have entertained the habeas corpus petition under Article
226 of the Constitution of India. Since a detailed enquiry
including the welfare of the minor child and his preference
would have been involved, such an exercise could be done
only in a proceeding under the provisions of the Guardians
and Wards Act, 1890."
11. In another Judgment in the case of Somprabha, the
Hon'ble Supreme Court in paragraph-13 observed thus:
"13. We believe that considering the peculiar facts of the
case and the child's tender age, this is not a case where
custody of the child can be disturbed in a petition under
Article 226 of the Constitution of India. Only in substantive
proceedings under the GW Act can the appropriate Court
decide the issue of the child custody and guardianship.
Regular Civil/Family Court dealing with child custody cases
is in an advantageous position. The Court can frequently
interact with the child. Practically, all Family Courts have a
child centre/play area. A child can be brought to the play
centre, where the judicial officer can interact with the child.
Access can be given to the parties to meet the child at the
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same place. Moreover, the Court dealing with custody
matters can record evidence. The Court can appoint experts
to make the psychological assessment of the child. If an
access is required to be given to one of the parties to meet the
child, the Civil Court or Family Court is in a better position
to monitor the same.
12. Learned counsel for the Petitioner has relied on the
observations in the case of Yashita Sahu Versus State of Rajasthan11
to contend that, in such cases, the petition for writ of habeas
corpus is maintainable.
13. There is no doubt regarding the proposition that in a
given case the petition for writ of habeas corpus brought by one
parent against the other, is maintainable; provided, conditions laid
down by the Hon'ble Supreme Court in the various judgments
enumerated herein above are satisfied.
14. In this view of the matter, the proper remedy for the
Petitioner would be to approach a competent court under the
provisions of the Hindu Minority and Guardianship Act, 1956. No
relief can be granted to the Petitioner in the present petition.
15. The Petition is accordingly dismissed.
11 (2020) 3 Supreme Court Cases 67
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16. It is made clear that, all the observations regarding the
welfare of the child are made only for the purpose of deciding the
present petition, and at an appropriate stage, the competent
Courts in future are free to take their own decision in accordance
with law regarding the custody and welfare of the child.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
