Bombay High Court
Shubhangi Ganesh Yadav vs The State Of Maharashtra And Others on 18 November, 2025
2025:BHC-AUG:31606-DB
1 Judgment in WP 1566-25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1566 OF 2025
Shubhangi w/o Ganesh Yadav,
Age : 30 years, Occu.: Household,
R/o.: Kadepur, Tq. Kadegaon,
District : Sangali.
At present C/o. Kamalkar Rao
Yashwantrao Jadhav,
Muslewadi, Tq. Renapur,
District : Latur, Maharashtra .... APPLICANT
(Original Petitioner)
VERSUS
1. The State of Maharashtra through
The Superintendent of Police,
Office of the Superintendent of Police,
Latur, District : Latur
2. Police Inspector, Police Station Renapur,
Taluka : Renapur, District : Latur,
3. Ganesh s/o Shivaji Yadav,
Age : 38 yeas, Occu.: Service,
R/o.: At present Kadepur,
Tq. Kadegaon, District : Sangli .... RESPONDENTS
....
Ms. Poonam V. Bodke Patil, Advocate for the Petitioner
Mr. P. S. Patil, APP for Respondent Nos.1 & 2
....
CORAM : SANDIPKUMAR C. MORE AND
Y. G. KHOBRAGADE, JJ.
RESERVED ON :13/11/2025
PRONOUNCED ON: 18/11/2025
2 Judgment in WP 1566-25
JUDGMENT :
(Per : Sandipkumar C. More, J.)
1. Rule. Rule made returnable forthwith.
2. Learned AGP waives service for the respondent Nos.1 & 2-
State. Heard finally by consent of the parties.
3. The present petition is filed under Article 226 of the
Constitution of India seeking issuance of a writ of habeas corpus,
directing respondent Nos. 1 and 2 to produce the petitioner's minor
son, Abhir, and daughter, Abhira @ Aarya, from the custody of
respondent No. 3 (the father).
4. The petitioner is the wife of respondent No.3, with whom her
marriage was solemnized on 30/08/2020. After the marriage, the
petitioner started residing in the house of respondent No.3 at
village Kadepur, Taluka Kadegaon, District Sangli. However,
respondent No.3 and his family members subjected her to cruelty.
Out of the said wedlock, the petitioner has a son, Abhir, born on
27/02/2022, and a daughter, Abhira @ Aarya, born on
17/11/2023. Ultimately, on 02/06/2025, respondent No.3
allegedly mercilessly assaulted the petitioner and drove her out of
the matrimonial home after removing her ornaments and taking
away the minor children. Since 02/06/2025, the petitioner is
3 Judgment in WP 1566-25
residing at her parental home at Muslewadi, Taluka Ranapur,
District Latur.
5. The petitioner thereafter filed Civil Miscellaneous Application
No.156 of 2025 before the learned District Judge, Latur, seeking
custody and guardianship of her minor children - both below five
years of age under Section 25 of the Guardians and Wards Act,
1890 as well as Section 6 of the Hindu Minority and Guardianship
Act, 1956. Respondent No. 3 raised an objection to the said
application on the ground of territorial jurisdiction contending that
the ordinary residence of the minors is at village Kadepur, Taluka
Kadegaon, District Sangli. The learned District Judge, Latur,
upheld the objection of respondent No. 3 at (Exhibit-15) and held
that the application was not maintainable in view of Section 9 of
the Guardians and Wards Act, 1890.
Being aggrieved by the orders below Exhibit-15 and Exhibit-1
dated 18/09/2025, the petitioner has filed Civil Revision (Stamp)
Application No.33100 of 2025, which is to be circulated before the
learned Single Bench of this Court. The learned counsel for the
petitioner has also relied upon the following judgments.
A) Pravin Nathalal Parghi vs. The State of
Maharashtra and others in Writ Petition
4 Judgment in WP 1566-25
No.2374 of 2025 dated 04/09/2025 of this
court.
B) Veena Kapoor vs. Varinder Kumar Kapoor,
1982 AIR(SC) 792;
C) Sadaf Naaz vs. Shashi Kumar Mishra and
others, in W.P. (CRL)4002/2024 & CRL.M.A.
38615/2024 dated 20/12/2024 of Delhi High
Court and
D) Smt. Sarabjit wd/o Sh. Mukesh Kumar vs. Sh.
Piara Lal and another, AIR 2005 Punjab and
Haryana 237.
6. On the contrary, the learned APP, by placing reliance on the
order passed by the learned District Judge, Latur, below Exhibit-15
in Civil Miscellaneous Application No.156 of 2025, raised a similar
objection and contended that the present petition ought to have
been filed before the Kolhapur Circuit Bench of this Court as the
minors are residing in Sangli District, which falls under the
territorial jurisdiction of that Bench. He further objected to the
maintainability of this petition on the ground that a writ of habeas
corpus seeking custody of minor children is not maintainable when
the children are in the custody of their natural guardian i.e. their
father. He also relied upon the judgment in case of Tejaswani
5 Judgment in WP 1566-25
Gaud and Others vs. Shekhar Jagdish Prasad Tewari and
Others, (2019) 7 SCC 42.
7. Admittedly, the minor children are in the custody of their
father, who is also their natural guardian. However, according to
the learned counsel for the petitioner, under Section 6 of the Hindu
Minority and Guardianship Act, 1956, a child below five years of
age is presumed to ordinarily reside with the mother and therefore,
even though the father is the natural guardian, the custody of
children below five years should ordinarily remain with the mother.
In support of this contention, reliance is placed on the judgment in
case of Smt. Sarabjit w/o Sh. Mukesh Kumar (supra). There is no
dispute that both minor children are below the age of five years.
However, the learned APP, by placing reliance on the judgment of
the Hon'ble Supreme Court in case of Tejaswani Gaud and
Others (supra), has contended otherwise, wherein it has been
observed 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
6 Judgment in WP 1566-25
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 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 minor by a person
who is 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
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
7 Judgment in WP 1566-25
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.
21. In the present case, the appellants are the sisters
and brother of the mother Zelam who do not have
any authority of law to have the custody of the
minor child. Whereas as per Section 6 of the Hindu
Minority and Guardianship Act, the first respondent
father is a natural guardian of the minor child and
is having the legal right to claim the custody of the
child. The entitlement of father to the custody of
child is not disputed and the child being a minor
aged 1& ½ years cannot express its intelligent
preferences. Hence, in our considered view, in the
facts and circumstances of this case, the father,
being the natural guardian, was justified in
invoking the extraordinary remedy seeking custody
of the child under Article 226 of the Constitution of
India."
Accordingly, the learned APP submits that the present writ
petition is not maintainable and the question of custody has to be
decided by the competent court.
8 Judgment in WP 1566-25
8. As against this, the learned counsel for the petitioner relied
on the judgment of the Hon'ble Apex Court in case of Veena
Kapoor (supra), wherein the Supreme Court condemned the order
of the Punjab and Haryana High Court who had dismissed the
mother's petition seeking custody of the child from the respondent-
husband on the ground that the father's custody was legal. The
learned counsel for the petitioner also placed reliance on the
judgment of the Coordinate Bench of this Court (Principal Seat) in
Writ Petition No. 2374 of 2025, Pravin Parghi vs. State of
Maharashtra and Others (supra). According to her, in that case
this Court exercised jurisdiction under Article 226 and allowed the
writ of habeas corpus. She pointed out that this Court in the said
case, had considered both Tejaswani Gaud and Others (supra)
and Veena Kapoor (supra) and then awarded custody of minor to
his own father. She therefore contends that a similar order can be
passed in the present petition, directing respondent No. 3 to hand
over custody of the minor children to the petitioner despite the
pendency of the petitioner's revision application.
9. As regards maintainability of the present writ petition, the
Hon'ble Supreme Court in case of Tejaswani Gaud and Others
(supra) has already observed that the father, being the natural
9 Judgment in WP 1566-25
guardian in that case, was justified in invoking the extraordinary
remedy under Article 226 of the Constitution of India for seeking
custody of the child. Moreover, this court has also taken a view in
case of Pravin Nathalal Parghi (supra) that in a battle for seeking
custody of minor children, the writ of habeas corpus can be issued.
However, it is extremely important to note that in case of
Tejaswani Gaud and Others (supra), the Hon'ble Supreme Court
specifically observed that a petition for issuance of a writ of habeas
corpus for custody of a minor child is maintainable only when the
child is detained by a person not entitled to legal custody. It was
further held that such an extraordinary remedy can be granted
only in exceptional circumstances where the ordinary remedy
provided by law is either unavailable or ineffective. Since the
exercise of writ jurisdiction is summary in nature, where the Court
is of the view that a detailed inquiry is required, it may direct the
parties to approach the competent civil court.
10. It is important to note that in case of Tejaswani Gaud and
Others (supra), Tejaswani was in fact the aunt of the minor and
the Hon'ble Supreme Court directed her to hand over the custody of
the child to the first respondent - his father. Similarly, in case of
Pravin Nathalal Parghi (supra), the petitioner was the biological
10 Judgment in WP 1566-25
father of five year old twins, one of whom was in the custody of the
mother and sisters. In both these cases, the persons holding
custody of the minors were not legally entitled to retain such
custody. Therefore, considering the custody sought by the natural
guardian - the father in both cases, the writ of habeas corpus was
issued in view of the extraordinary circumstances and considering
the legal provisions to that effect.
11. However, in the present case, the mother is seeking custody of
the minors from her husband, who is also their natural guardian.
The learned counsel for the petitioner interpreted the expression
'ordinary residence of minors' in light of the judgment of the Punjab
and Haryana High Court in case of Tejbir Singh vs. Baljit Kaur
(C.R. No. 7257 of 2018, decided on 02/11/2018) as well as
Section 6 of the Hindu Minority and Guardianship Act, 1956.
Admittedly, under the proviso to Section 6(a) of the said Act, the
custody of a minor who has not attained the age of five years shall
ordinarily be with the mother and therefore, according to the
petitioner, the ordinary place of residence of such minors should be
treated as the place where the mother resides. However, the learned
District Judge, Latur, while passing the order at Exhibit-15 in the
petitioner's custody application, considered the said judgment and
11 Judgment in WP 1566-25
rejected this contention. Against that order, a civil revision
application is already pending before this Court.
12. Further, it is extremely important to note that the Hon'ble
Apex Court in case of Tejaswani Gaud and Others (supra) has
observed consistently with its earlier observations that child
custody matters require a detailed inquiry with the welfare of the
child being the paramount consideration. Therefore, where such
detailed inquiry is necessary, the writ court may decline to exercise
its extraordinary jurisdiction and may direct the parties to
approach the civil court. A similar view was taken by the Hon'ble
Supreme Court in case of Veena Kapoor (supra), wherein it held
that the High Court had erred in dismissing the mother's petition
solely on the ground that the child's custody with the father was
legal. However, it is equally significant to note that even in that
case, despite making such observations, the Hon'ble Apex Court
ultimately relegated the parties to the concerned District Judge,
Chandigarh, to decide the issue after considering the welfare of the
minor. Thus, even the Supreme Court declined to issue a writ of
habeas corpus and directed the parties to approach the
appropriate district court, observing that in matters of child
12 Judgment in WP 1566-25
custody the paramount consideration is the welfare of the minor,
which necessitates a detailed inquiry.
13. In the instant case, the matter is in respect of custody of
minors between the mother and the father. Admittedly, both minors
are below the age of five years and the mother had already filed an
appropriate application under the provisions of the Guardians and
Wards Act, 1890 as well as the Hindu Minority and Guardianship
Act, 1956, before the District Judge, Latur. The said application is
rejected on the ground of territorial jurisdiction, against which a
civil revision application is already pending before this Court.
Consequently, the grievance regarding the custody of the minor
children of the petitioner - mother is to be adjudicated in the said
revision application itself. Under these circumstances, the
judgments in case of Tejaswani Gaud and Others (supra) and
Pravin Nathalal Parghi (supra), which did not involve disputes
between the mother and the father, are not applicable to the
instant case. The dispute in respect of the custody of the minor
children between the petitioner and respondent No.3 is already
pending under the appropriate provisions of law. Therefore, in
these circumstances, we deem it appropriate not to exercise the
writ jurisdiction for the issuance of a writ of habeas corpus in the
13 Judgment in WP 1566-25
present matter. Accordingly, the present writ petition stands
dismissed. The Rule is discharged.
( Y. G. KHOBRAGADE, J.) ( SANDIPKUMAR C. MORE, J.)
VS Maind/-
