Bombay High Court
Pravin Nathalal Parghi S/O Late Mr ... vs State Of Maharashtra And Ors on 4 September, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:37140-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
LAXMI
SUBHASH
SONTAKKE
WRIT PETITION NO. 2374 OF 2025
Digitally signed by
LAXMI SUBHASH
SONTAKKE
Date: 2025.09.04
18:49:05 +0530
Pravin Nathalal Parghi .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondent
Ms. M. J. Reena Rolland a/w Aishwarya Bhandary for the Petitioner.
Mr. Mayur Sonavane, APP for Respondent Nos. 1 to 4.
Ms. Parul Shah i/b. Pratibha Bangera for Respondent Nos. 5 to 8.
Mr. Mohd. Rafik Gavandi, P.S.I., Malad Police Station, Mumbai.
CORAM: RAVINDRA V. GHUGE &
GAUTAM A. ANKHAD, JJ.
RESERVED ON: AUGUST 22, 2025
PRONOUNCED ON: SEPTEMBER 04, 2025
JUDGMENT (PER: GAUTAM A. ANKHAD, J.)
1. Rule. Rule is made returnable forthwith and the matter is heard finally
with the consent of the parties.
2. The Petitioner is the biological father of 5-year-old twins. Respondent
No. 5 is the mother of the Petitioner, and Respondent Nos. 6 to 8 are the sisters of the
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Petitioner. One son (Mst. Lakshya Parghi) is in the custody of the Petitioner, whereas
the other (Mst. Lavya Parghi) is admittedly in the custody of Respondent No. 5.
3. The present Petition seeks a Writ of Habeas Corpus directing
Respondent No. 4 (Police) to procure the custody of the Mst. Lavya Parghi from
Respondent No.5 and hand him over to the Petitioner.
4. The facts in a nutshell are as follows:-
(i) The Petitioner is presently working as a 'Mukadam' at the P/North
Ward office of the Municipal Corporation of Greater Mumbai
(MCGM). His job was secured a few years ago with MCGM under a
retirement-linked preferential employment scheme availed by the
Petitioner through Respondent No. 5, who was a former employee of
MCGM.
(ii) The Petitioner was married on 6th December, 2014 and the twins were
born on 12th November, 2019 to the Petitioner and his wife through
surrogacy. The twins had health complications at birth. It was then
agreed by the Petitioner that Mst. Lavya Parghi would stay under the
care of Respondent No.5 (his mother). After the lockdown imposed
under COVID-19 pandemic eased, several disputes arose between the
Petitioner and his parents. This resulted in:
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a) The Petitioner filing Case No. 106/D/2023 before the Family
Court under Section 25 of the Guardians and Wards Act, 1890,
against his father (now deceased) for obtaining custody of his
minor son. The Petitioner has also filed Petition No. D/51/2025
in the Family Court seeking custody of child; and
b) Respondent No.5 filing FIR No. 841/2024 with the Malad
Police Station 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 Petitioner and his brother.
The Family Court proceedings are pending. It is an admitted position
that Respondent No. 5 has informed the Family Court that the
Petitioner's son resides with Respondent No. 5 at their residence.
(iii) Between 7th and 20th February 2025, the parties exchanged legal
notices inter-alia on the custody of the child. The Petitioner also filed
several complaints before the police, including on 3rd, 10th and 19th
March 2025 requesting for their intervention in the custody dispute.
(iv) As Respondent No. 5 has refused to hand over the custody of the child,
the present petition has been filed.
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5. We have heard Ms. Rolland, learned advocate for the Petitioner, Mr.
Sonavane, learned APP for Respondent Nos. 1 to 4 and Ms. Bangera learned
advocate for Respondent Nos. 5 to 8.
6. Ms. Rolland submitted that there is no marital discord between the
Petitioner and his wife. As the biological father and natural guardian, the Petitioner
and his wife have a rightful claim to the custody of their son. He is gainfully
employed and fully capable of ensuring his care and well-being. She further
contended that the twins should not be separated at the instance of Respondent Nos.
5 to 8. The allegations of Respondent No. 5 regarding the Petitioner's inability to
look after the child's health and welfare are unfounded. The son ought to be reunited
with his biological parent and twin brother. Respondent No. 5 has no superior right in
law to retain custody over the biological father. It was further submitted that a writ of
Habeas Corpus can be exercised in exceptional circumstances even if the custody
proceedings are pending. Reliance was placed on the judgments of the Hon'ble
Supreme Court in Tejaswini Gaud vs. Shekhar Tiwari (2019) 7 SCC 42 and Gautam
Kumar Das vs. NCT of Delhi (2024 INSC 610) in support of the above submissions.
7. Ms. Bangera and Ms. Racheeta Dhuru, learned counsels for
Respondent Nos. 5 to 8, opposed the submissions advanced on behalf of the
Petitioner and relied upon the affidavits dated 18 th June, 2025 and 6th August, 2025
filed on behalf of Respondent No. 5 and Respondent Nos. 6 to 8, respectively. It was
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submitted that the Petitioner's wife has shown no emotional or parental bond with
her sons. At the time of birth, the Petitioner and his wife declined to take custody of
the twins, describing them as a 'burden'. The Petitioner voluntarily entrusted the
custody of his son Lavya to Respondent No. 5 and her husband (now deceased), and
since birth, he has remained in their care, love, and guardianship. He is now
emotionally attached to Respondent No. 5. It was further submitted that the other son
(Mst. Lakshya Parghi) suffers from cerebral palsy, and the Petitioner and his wife are
financially as well as emotionally incapable of caring for both children. According to
Respondent No.5, the Petitioner's real interest lies in the property of Respondent No.
5, and he had even offered to relinquish custody of his custody claims in exchange
for such property. The filing of the present petition nearly five years after the child's
birth was stated to be a mala fide attempt to harass Respondent No. 5 on account of
the property dispute. Reliance was placed on the judgments of Tejaswini Gaud
(supra) and Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42 to oppose the
petition.
8. Ms. Bangera further submitted that the Petitioner had already invoked
the provisions of the Guardians and Wards Act 1890, by filing applications before the
Family Court seeking custody of the child. The same is pending for adjudication.
Hence, this petition cannot be entertained in view of the alternate statutory remedy
already pursued by the Petitioner.
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9. Respondent Nos. 6 to 8 have filed almost identical affidavits stating
that they have not assumed or exercised rights or responsibilities of a custodian or
legal guardian of the Petitioner's child. They are residing independently and
maintaining a separate household. Nevertheless, they support Respondent No. 5 and
have sought dismissal of the present petition.
10. We have heard learned counsel for the parties, considered their rival
submissions, and examined the judgments relied upon by them. The issue that arises
for determination is whether this Court ought to exercise its Writ jurisdiction in
Habeas Corpus to hand over custody of the 5 years old twin child to the biological
parents, notwithstanding the pendency of custody proceedings before the Family
Court.
11. The Hon'ble Supreme Court in Tejaswini Gaud (supra) has considered
several earlier judgments including Gaurav Nagpal (supra) and has held as under :-
"14. Writ of habeas corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of
immediate release from an illegal or improper detention. The
writ also extends its influence to restore the custody of a minor
to his guardian when wrongfully deprived of it. The detention
of a minor by a person who is not entitled to his legal custody
is treated as equivalent to illegal detention for the purpose of
granting writ, directing custody of the minor child. For
restoration of the custody of a minor from a person who
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according to the personal law, is not his legal or natural
guardian, in appropriate cases, the writ court has jurisdiction.
15. In Gohar Begam [Gohar Begam v. Suggi, AIR 1960 SC
93 : 1960 Cri LJ 164] where the mother had, under the
personal law, the legal right to the custody of her illegitimate
minor child, the writ was issued. In Gohar Begam [Gohar
Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164] , the
Supreme Court dealt with a petition for habeas corpus for
recovery of an illegitimate female child. Gohar alleged that
Kaniz Begum, Gohar's mother's sister was allegedly detaining
Gohar's infant female child illegally. The Supreme Court took
note of the position under the Mohammedan Law that the
mother of an illegitimate female child is entitled to its custody
and refusal to restore the custody of the child to the mother
would result in illegal custody of the child. The Supreme Court
held that Kaniz having no legal right to the custody of the child
and her refusal to make over the child to the mother resulted in
an illegal detention of the child within the meaning of Section
491 CrPC of the old Code. The Supreme Court held that the
fact that Gohar had a right under the Guardians and Wards Act,
1890 is no justification for denying her right under Section 491
CrPC. The Supreme Court observed that Gohar Begum, being
the natural guardian, is entitled to maintain the writ petition
and held as under : (Gohar Begam case [Gohar Begam v.
Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164] , AIR pp. 95-96,
paras 7-8 & 10)
"7. On these undisputed facts the position in law is perfectly
clear. Under the Mohammedan law which applies to this case,
the appellant is entitled to the custody of Anjum who is her
illegitimate daughter, no matter who the father of Anjum is.
The respondent has no legal right whatsoever to the custody of
the child. Her refusal to make over the child to the appellant
therefore resulted in an illegal detention of the child within the
meaning of Section 491. This position is clearly recognised in
the English cases concerning writs of habeas corpus for the
production of infants. In R. v. Clarke [R. v. Clarke, (1857) 7
EL & BL 186 : 119 ER 1217] Lord Campbell, C.J., said at EL
& BL pp. 193-94 : (ER p. 1220)
'But with respect to a child under guardianship for nurture, the
child is supposed to be unlawfully imprisoned when
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unlawfully detained from the custody of the guardian; and
when delivered to him, the child is supposed to be set at
liberty.'
The courts in our country have consistently taken the same
view. For this purpose the Indian cases hereinafter cited may
be referred to. The terms of Section 491 would clearly be
applicable to the case and the appellant entitled to the order she
asked.
8. We therefore think that the learned Judges of the High Court
were clearly wrong in their view that the child Anjum was not
being illegally or improperly detained. The learned Judges
have not given any reason in support of their view and we are
clear in our mind that view is unsustainable in law.
***
10. We further see no reason why the appellant should have
been asked to proceed under the Guardian and Wards Act for
recovering the custody of the child. She had of course the right
to do so. But she had also a clear right to an order for the
custody of the child under Section 491 of the Code. The fact
that she had a right under the Guardians and Wards Act is no
justification for denying her the right under Section 491. That
is well established as will appear from the cases hereinafter
cited."
(emphasis supplied)
16. In Veena Kapoor [Veena Kapoor v. Varinder Kumar
Kapoor, (1981) 3 SCC 92 : 1981 SCC (Cri) 650] , the issue of
custody of child was between the natural guardians who were
not living together. Veena, the mother of the child, filed the
habeas corpus petition seeking custody of the child from her
husband alleging that her husband was having illegal custody
of the one and a half year old child. The Supreme Court
directed the District Judge concerned to take down evidence,
adduced by the parties, and send a report to the Supreme Court
on the question whether considering the interest of the minor
child, its mother should be given its custody.
17. In Rajiv Bhatia [Rajiv Bhatia v. State (NCT of Delhi),
(1999) 8 SCC 525] , the habeas corpus petition was filed by
Priyanka, mother of the girl, alleging that her daughter was in
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illegal custody of Rajiv, her husband's elder brother. Rajiv
relied on an adoption deed. Priyanka took the plea that it was a
fraudulent document. The Supreme Court held that the High
Court was not entitled to examine the legality of the deed of
adoption and then come to the conclusion one way or the other
with regard to the custody of the child.
18. In Manju Malini [Manju Malini Seshachalam v. Vijay
Thirugnanam, 2018 SCC OnLine Kar 621 : (2018) 4 AIR Kant
R 166] where the mother filed a habeas corpus petition seeking
custody of her minor child Tanishka from her sister and
brother-in-law who refused to hand over the child to the
mother, the Karnataka High Court held as under : (SCC
OnLine Kar para 26)
"26. The moment Respondents 1 and 2 refused to hand over
the custody of minor Tanishka to the petitioner the natural and
legal guardian, the continuation of her custody with them
becomes illegal detention. Such intentional act on the part of
Respondents 1 and 2 even amounts to the offence of
kidnapping punishable under Section 361 IPC. Therefore there
is no merit in the contention that the writ petition is not
maintainable and Respondents 1 and 2 are in legal custody of
baby Tanishka."
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 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.
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12. It is well-settled law that a 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. Ordinarily, child custody disputes are to be addressed under the
Guardians and Wards Act, 1890, through a comprehensive inquiry by the competent
Court. However, in exceptional circumstances, the questions of custody can be
examined within the limited scope of Writ jurisdiction. We are of the view that the
present matter falls within such an extraordinary category.
13. In the present case, while the custody of the son (one of the twins) rests
with the Petitioner, the custody of his other son remains with Respondent No. 5. In
our view, the Petitioner being the biological father and natural guardian, has an
undisputed legal right to claim custody of his child. The contention of Respondent
No. 5 that the Petitioner is emotionally and financially incapable of caring for the
twins cannot be accepted. Custody cannot be denied on the basis of these allegations.
The wife of the Petitioner, mother of the said child, is living together with the
Petitioner. Though Respondent No. 5 may share an emotional bond with the child,
such attachment does not confer upon her a superior right to custody over that of the
biological parent. While due regard must be given to the rights of the father and
mother as the natural guardian, such rights may be curtailed only if it is shown that
his custody would be detrimental to the child's welfare. Admittedly, there is no
marital discord between the Petitioner and his wife, and that the Petitioner is
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employed with the MCGM. There is nothing on record to suggest that the Petitioner
is incapable of caring for his child. Significantly, the other twin, who suffers from
cerebral palsy, is already in his care. The child cannot be denied the care of his
parents merely because of disputes between the Petitioner and Respondent No. 5, nor
can property-related disputes deprive the biological parents of their lawful custody.
In our view, Respondent No. 5 has no legal entitlement to retain custody of her
grand-child vis-à-vis the Petitioner, more so when she is 74 years of age and herself
has filed a complaint inter alia seeking maintenance from the Petitioner.
14. The Petitioner's reliance on the recent judgment of the Hon'ble
Supreme Court in Gautam Kumar Das (supra) is well-founded, wherein the Hon'ble
Court has considered almost similar facts. In that case, the custody of the child was
handed over by the father to the sisters of his deceased wife. The Hon'ble Court held
that there was nothing on record to show that the father, who had re-married, was
incapable of taking care of her child and consequently directed the handover of the
custody to the father. The ratio squarely applies to this case. Infact, the case in hands
is on a stronger foundation since the couple is together and capable of taking care of
their twin child.
15. The judgment of Hon'ble Supreme Court in Gaurav Nagpal (supra) is
of no assistance to Respondent No.5. That was a case of a custody battle of a sole
child between a husband and wife. It reiterates the well settled law on the issuance of
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Writs of Habeas Corpus. In any case the same is considered in Tejaswini Gaud
(supra) referred to above by us.
16. In view of the above, the Petition is partly allowed in terms of prayer
(a). Respondent No. 4 is directed to secure custody of Mst. Lavya Parghi from
Respondent No. 5 and hand him over to the Petitioner within two weeks from the
date of this order.
17. While some initial adjustment issues may arise, we are of the view that
these will ease over time. The welfare of the child is the paramount consideration in
custody matters. The Petitioner shall ensure that Mst. Lavya Parghi's schooling and
current extra-curricular activities remain undisturbed during the ongoing academic
year. To facilitate a smooth transition, subject to the child's school/ classes etc,
Respondent No.5 shall be permitted to meet the child on any weekday between 9:00
a.m. and 6:00 p.m at the Petitioner's residence/ society. This shall be initially for a
period of three months. Respondent Nos. 6 to 8 are at liberty to accompany
Respondent No.5 during the interactions with the child. The Petitioner, by himself or
through his wife, shall not create obstacles/ issues during these meetings. Both
parties are directed to extend full cooperation to safeguard the welfare and best
interests of the child. In case of any difficulty, it shall be open to either party to
approach the Family Court for appropriate directions.
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18. Rule is made partly absolute in the above terms. There shall be no order
as to costs.
[ GAUTAM A. ANKHAD, J.] [RAVINDRA V. GHUGE, J.]
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