Bombay High Court
Vinayak S/O Narhari Shinde vs Ashwini W/O Vinayak Shinde on 29 September, 2025
2025:BHC-NAG:9888
WP 739.25.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 739/2025
1. Vinayak s/o Narhari Shinde,
aged about 35 yrs., Occ. Service,
2. Narhari s/o Munjappa Shinde,
Aged about 65 yrs., Occ. Retired,
3. Sau. Ratnamala w/o. Narhari Shinde,
Aged about 55 yrs., Occ. Household,
All R/o. Bank Colony, Vasmat,
Tah. Vasmat, Dist. Hingoli.
...PETITIONERS
(Ori.N.As.)
VERSUS
Sau. Ashwini w/o Vinayak Shinde,
Aged about 31 yrs., Occ. None,
R/o. C/o. Shri Gajanan Bappurao
Sakhare, Gochar Swami Ward,
Umarkhed, Tah. Umarkhed,
Dist. Yavatmal.
...RESPONDENT
(Ori.Applicant)
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Mr. Anil Mardikar, Sr. Advocate assisted by Mr. V. R. Deshpande,
Advocate
Mrs. Renuka S. Sirpurkar, Advocate assisted by Ms. N. Pathan,
Advocate for respondent.
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WP 739.25.odt
2
CORAM : M. M. NERLIKAR, J.
DATE : 29.09.2025
ORAL JUDGMENT :
Heard.
2. By way of this petition filed under Article 227 of the
Constitution of India, the petitioners are seeking to quash and
set aside the impugned judgment and order dated 23.07.2025
passed by the learned Judicial Magistrate First Class (Court
No.2), Umarkhed, District Yavatmal in PWDVA No.40/2024 and
judgment and order dated 03.09.2025 passed by the learned
Additional Sessions Judge, Pusad, District Yavatmal in PWDVA
Appeal No.5/2025, wherein both the Courts' below have
directed to give temporary custody of minor child namely
Mayuresh Vinayak Shinde to the respondent-wife herein. The
petitioner No.1 is the husband, whereas petitioner Nos. 2 and 3
are the parents of petitioner No.1 and the respondent is the
wife of petitioner No.1.
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3. Factual matrix of the case appears to be that:
The marriage of the petitioner No.1 and respondent
was solemnized on 08.03.2020. Out of the said wedlock, they
got blessed with a son. After cohabiting for four years, a
dispute arose between the husband and wife and since
28.10.2024, both the husband and wife are living separately. It
appears that the wife filed a complaint with the learned Judicial
Magistrate First Class under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 ('D.V. Act') on
06.11.2024, praying therein that she be granted protection
order under Section 18, residence order in terms of Section 19
and custody order as per Section 21 of D.V. Act thereby claiming
custody of minor child Mayuresh. Further prayer was made
claiming maintenance of Rs. 40,000/- per month under Section
20 of the D.V. Act. A separate application was made on
06.11.2024 itself, seeking interim maintenance as well as
temporary custody of the minor child. The petitioners herein
resisted the claim of the respondent-wife by filing reply. By an
order dated 23.07.2025, the application of respondent-wife was
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allowed by the learned Judicial Magistrate First Class thereby
directing the petitioner no. 1 herein to provide interim
maintenance to the respondent-wife to the tune of Rs.10,000/-
per month till the decision of the application, from the date of
filing of the application. Even it was directed to give temporary
custody of child to the respondent-wife within 10 days from the
date of order. This order was challenged before the learned
Sessions Judge, Pusad by filing an appeal bearing No.5/2025 on
various grounds. Initially, by an order dated 02.08.2025, stay
was granted to the order dated 23.07.2025 only to the extent of
handing over the interim custody of the minor child.
Eventually, after hearing both the parties, the learned
Additional Sessions Judge, Pusad, District Yavatmal was pleased
to partly allow the appeal by an order dated 03.09.2025,
whereby the order dated 23.07.2025 was modified only to the
extent that the petitioner-husband Vinayak is allowed to visit
the minor child Mayuresh once in two weeks in between 10.00
a.m. to 06.00 p.m. However, order dated 23.07.2025 was
confirmed to the extent of grant of temporary custody and
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interim maintenance. Being aggrieved by both the orders, the
petitioners approached this Court by filing the present Criminal
Writ Petition, however both the orders are challenged only to
the extent of handing over of the custody of minor child to the
respondent-wife.
4. I have heard learned Senior Counsel Mr. Anil
Mardkikar for the petitioners and the learned counsel
Mrs. Renuka S. Sirpurkar, for the respondent-wife. The learned
Senior Counsel for petitioners submit that since the birth of the
child, the petitioners are having custody of the minor child. He
further submits that the minor child Mayuresh is suffering from
autism and requires special care. He is undergoing treatment in
Nanded as well as Hyderabad and the petitioners are residing at
Vasmat which is 30 to 40 k.m. away from Nanded. Both the
learned Courts below, gave much importance to the job of the
petitioner No.1 as he is working as an Assistant Teacher and it
was observed that he would be required to go to the School and
therefore, he would not be in a position to look after the child.
However, the same is misconceived as the petitioner No.1 goes
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to School at 07.00 a.m. and returns till 12.00 noon, thereafter
he is fully capable to look after and take care of the child. So far
as the time period between 07.00 a.m. to 12.00 p.m. is
concerned. the petitioner Nos. 2 and 3 are competent to take
due care of the minor child.
5. The learned Senior Counsel further submitted that the
respondent-wife does not have any source of income and
therefore, it would be very difficult for her if the custody of the
minor child is handed over to her. So as to substantiate the
above, he has placed reliance on the affidavit filed by the
respondent-wife before the learned Judicial Magistrate First
Class in respect of assets and liabilities, wherein in Col.No. 4 of
Personal Information, it is stated that wife is staying in the
house of her father at Gochar Swami Ward, Umarkhed, Tahsil
Umarkhed, District Yavatmal; whereas in Col.No. 7 of the same,
she states that she is completely dependant on present
petitioner No.1 as she is claiming Rs.40,000/- per month
towards maintenance. My attention has been further invited to
Part (F) which deals with details of income of the dependant,
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wherein it is shown that the respondent is not having any
source of income, she is completely dependant upon the
petitioner No.1, as she is unable to maintain herself and
therefore, submits that under such circumstances when there is
no source of income as well as she is residing with her parents,
it would be very difficult for her to take care of the minor child
and to provide the best treatment required for autism. He
further submits that, the order of the learned Judicial
Magistrate First Class is passed without detail reasons so far as
welfare of the minor child is concerned and therefore, he
submits that learned Judicial Magistrate First Class has failed to
apply his mind properly in the given set of facts. It was also
submitted that as since the birth of the child, the petitioners are
having continuous custody of the minor child, if the custody is
uprooted then it would have a psychological impact on the
child. Under such circumstances, he submits that both the
Courts below have miserably failed to take into consideration
the above facts and circumstances of the case and therefore,
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erred in directing the grant of custody of minor child to the
respondent-wife.
6. So as to substantiate his contentions, the learned
Senior Counsel of the petitioners has relied on five judgments
which are-
a) Gaytri Bajaj Vs. Jiten Bhalla, (2012) 12 SCC 47.
b) Mausami Moitra Ganguli Vs. Jayant Ganguli, (2008) 7 SCC
673.
c) Mamta Alias Anju Vs. Ashok Jagannath Bharuka, (2005) 12
SCC 452.
d) Nil Ratan Kundu and another Vs. Abhijit Kundu (2008) 9
SCC 413.
e) Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad
Tewari and others, (2019) 7 SCC 42.
7. Per contra, learned counsel for respondent-wife
submits that custody of child below age of five years cannot be
granted to any one except mother and when the impugned
order was passed, the child was of three and half years. Since
the birth of the child, she was taking care of the child, however
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thereafter, the petitioners dragged the wife out of the house and
deprived the respondent-wife from taking care of her own child.
She further submits that treatment of autism is also available at
Yavatmal and so far as treatment at Nanded is concerned, it is
hardly 70 k.m. from Umarkhed. The respondent-wife and her
parents will manage everything so far as the treatment is
concerned and they will do everything in their power in order
to give best treatment to the child. Lastly, it was submitted that
it is only a temporary custody which has been granted and the
rights of the parties are yet to be determined and therefore,
prayed to reject the petition.
8. So as to substantiate the above arguments, she has
relied on the judgment of the Hon'ble Supreme Court in the
case R.V. Srinath Prasad Vs. Nandamuri Jayakrishna and
others, (2001) 4 SCC 71, wherein the Supreme Court has
observed in para 11 as under:-
"11. The High Court appears to have overlooked the
settled principle that custody orders by their nature can
never be final; however, before a change is made it must
be proved to be in the paramount interest of the children.
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In a sensitive matter like this no single factor can be taken
to be decisive. Neither affluence nor capacity to provide
comfortable living should cloud the consideration by the
Court. Here we may refer to the decision of this Court in
Jai Prakash Khadria vs. Shyam Sunder Agarwalla, (2000) 6
SCC 598. In such matters usually, Courts while granting
the custody of minor children to one party extend the
facility of visiting them to the other. At the cost of
repetition we may state that we are not discussing the
merits of the case pleaded by the parties in detail since the
application for the custody is pending for adjudication
before the Family Court at Hyderabad."
Further, reliance is placed on the judgment of the Hon'ble
Supreme Court in case of Roxann Sharma Vs. Arun Sharma,
(2015) 8 SCC 318, wherein the Supreme Court observed in para
10 as under:-
"10. Section 6 of the HMG Act is of seminal importance. It
reiterates Section 4(b) and again clarifies that
guardianship covers both the person as well as the
property of the minor; and then controversially states that
the father and after him the mother shall be the natural
guardian of a Hindu. Having said so, it immediately
provides that the custody of a minor who has not
completed the age of 5 years shall ordinarily be with the
mother. The significance and amplitude of the proviso has
been fully clarified by decisions of this Court and very
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briefly stated, a proviso is in the nature of an exception to
what has earlier been generally prescribed. The use of the
word "ordinarily" cannot be over-emphasised. It ordains a
presumption, albeit a rebuttable one, in favour of the
mother. The learned Single Judge appears to have lost
sight of the significance of the use of word "ordinarily"
inasmuch as he has observed in paragraph 13 of the
Impugned Order that the Mother has not established her
suitability to be granted interim custody of Thalbir who at
that point in time was an infant. The proviso places the
onus on the father to prove that it is not in the welfare of
the infant child to be placed in the custody of his/her
mother. The wisdom of the Parliament or the Legislature
should not be trifled away by a curial interpretation which
virtually nullifies the spirit of the enactment."
A reliance is also placed on the judgment of this court in the
matter of Dr. Parijat Vinod Kanetkar & ors. Vs. Mrs. Malika
Parijat Kanetkar & another in Criminal Writ Petition
No.750/2016, decided on 21.12.2016. It was submitted that
this Court has considered identical facts and circumstances and
has given the custody of the minor child to the mother by
observing thus:-
"28. Now, reverting to the rival submissions, I find that
learned counsel for the respondent No.1 is right when she
submits that in writ jurisdiction the scope of interference
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does not go beyond examining the impugned order from
the view point of it being perverse, arbitrary or going
against well settled principles of law or statutory
provisions or exfacie illogical. When the impugned orders
are examined from such a perspective, I find that they do
not contain any such illegality or perversity as would
warrant any interference with them. The Courts below
have considered all the points raised before them, which
were similar to those raised here and decided them by
taking a view, which is neither arbitrary nor illegal nor
illogical nor of the nature as would cause miscarriage of
justice.
29....
30....
31. About deficiency of respondent No.1 in breastfeeding
her infant son, I find that there is no disputing this fact.
But, as seen from the medial papers, there appears to be a
reason for it. It was probably the premature birth of Ayaan,
and for this, surely respondent No.1 cannot be lambasted.
Even otherwise, if lactation is not established, the mother
cannot be blamed as that is something which is part of her
body metabolism and genetics over which she would never
have any control. One thing is certain, there is no nexus
between lack of lactation and motherly attachment to one's
own baby. In the present case, by seeking custody of the
child, I think the respondent No.1 has shown that she is
concerned about the welfare of her child and desirous of
giving him all that care, love and affection which only a
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mother can give. If this is so, any denial of interim custody
to her would result in harming her mental health and thus
cause domestic violence to her. But, of course this would
not be the primary consideration for deciding custody of
the child. Welfare, of the child, as held in several cases, in-
cluding those relied upon by both sides, is of the para-
mount consideration. In the fact situation of this case, I
find that the baby is so small that his being with mother,
who is yearning for her reunion with her child, would only
help him grow and develop, physically, psychologically and
mentally well, at least for the present. The facts and cir-
cumstances of this case discussed earlier would also show
that the respondent No.1, for the time being, has estab-
lished herself to be a fit person to have the custody of the
baby. Her conduct for about two and half months during
the period from 17.2.2015 till about early May 2015 has
also been found to be not showing indifference or non-at-
tachment towards Ayaan. All this would show that welfare
of Ayaan, for the present, will be well achieved, if his in-
terim custody is given to respondent No.1.
32. About the medical treatment that is being given to
Ayaan at Mumbai, I must say there is nothing available on
record showing that equally competent and professional
medical treatment is not available at Amravati. Learned
counsel for the petitioners has filed on record a Pursis
along with documents including a medical report dated
23.8.2016 which shows that Ayaan has been diagnosed to
be suffering from mild Autism and he is undergoing
treatment for Speech and Behavioral Therapy,
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Occupational Therapy, Hearing and Vision Assessment,
Thyroid Profile Assessment and Autism Assessment. As
stated earlier, if at all this is true, similar treatment could
also be given to the child at Amravati and if parties feel
that this is not possible it would constitute a change of
circumstances justifying modification of the interim order
of custody by invoking power under Section 25(2) of the
DV Act. That apart, from the record it is seen that these
documents were not available for consideration before the
Courts below and therefore, it would be unjust to question
the legality and correctness of the impugned orders by
considering these documents for the first time in exercise
of writ jurisdiction. For this reason also, the impugned
orders cannot be faulted with. All said and done, I may say
that a custody order by it's very nature being temporary is
amenable to change or modification subsequently if it is
necessitated by the change of circumstances."
9. I have heard both the parties and their rival
submissions. I have also gone through both the impugned
orders as well as other material placed before me.
10. Considering the above submissions made on behalf of
the parties, it is a settled principle of law that paramount
consideration is the welfare of the child. Considering the fact
that the petitioner is an Assistant Teacher, he is required to
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attend the School, maybe from 07.00 a.m. to 12.00 noon. The
fact remains that he is required to leave the child at the mercy
of petitioner Nos. 2 and 3. The role of the father in Indian
Society as compared to mother in respect of nurturing a child is
somewhat different and therefore, it cannot be equated with the
role of the mother in a child's life. In the present case,
admittedly, the petitioner No.1 is an Assistant Teacher and
petitioner Nos. 2 and 3 are the parents of the petitioner No.1
who are about 65 years and 55 years respectively. No doubt
since the birth, both father and mother are taking care of minor
child Mayuresh and it is only after October 2024, the
differences arose between the husband and wife. The custody
of the minor child remained with the father as it is alleged by
the respondent-wife that she is deprived from meeting her child
since from October 2024. There is also no dispute so far as the
child suffering from autism is concerned and the father is
providing treatment in the Hospital at Nanded and Hyderabad.
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11. No doubt, the respondent-wife is having no source of
income, which could be gathered from the affidavit of assets
and liabilities. It is also not in dispute that the presently she is
residing at the house of her father at Umarkhed. However, this
itself would not be a sole criteria to deny the custody. Under
such circumstances, it would be useful to refer to the judgment
in the case of Nil Ratan Kundu and another (supra) wherein the
Hon'ble Supreme Court while considering the legal position in
respect of custody has observed in para Nos. 25, 26, 27 as
under:-
25. Sometimes, a writ of habeas corpus is sought for
custody of a minor child. In such cases also, the paramount
consideration which is required to be kept in view by a writ
court is "welfare of the child".
26. In Habeas Corpus, Vol. I, page 581, Bailey states;
"The reputation of the father may be as stainless
as crystal; he may not be afflicted with the slightest
mental, moral or physical disqualifications from
superintending the general welfare of the infant; the
mother may have been separated from him without the
shadow of a pretence of justification; and yet the
interests of the child may imperatively demand the
denial of the father's right and its continuance with the
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mother. The tender age and precarious state of its
health make the vigilance of the mother indispensable
to its proper care; for, not doubting that paternal
anxiety would seek for and obtain the best substitute
which could be procured yet every instinct of humanity
unerringly proclaims that no substitute can supply the
place of her whose watchfulness over the sleeping
cradle, or waking moments of her offspring, is
prompted by deeper and holier feeling than the most
liberal allowance of nurses' wages could possibly
stimulate."
It is further observed that an incidental aspect, which has a
bearing on the question, may also be adverted to. In
determining whether it will be for the best interest of a
child to grant its custody to the father or mother, the Court
may properly consult the child, if it has sufficient
judgment.
27. In McGrath (infants) , Lindley, L.J. observed (Ch P.
148)
"....The dominant matter for the consideration of the Court
is the welfare of the child. But the welfare of the child is
not to be measured by money only nor by physical
comfort. The word `welfare' must be taken in its widest
sense. The moral or religious welfare of the child must be
considered as well as its physical well-being. Nor can the
ties of affection be disregarded."
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Therefore, while considering the aspect of custody of a minor
child, the Hon'ble Supreme Court has considered observations
from the English Law, which states that child's welfare is not to
be measured by money only, nor by physical comfort. The word
'welfare' must be taken in widest sense so as to include moral or
religious welfare as well as physical well being. Most
importantly, ties of affection cannot be disregarded. Therefore,
one thing is clear that money is not the criteria for granting the
custody of the minor child, but paramount consideration is the
welfare of the child. Under such circumstances, when the child
is of four years of age suffering from autism, therefore, it is only
a mother who would be able available and provide care,
affection 24 x 7. In order to take care of minor child, proper
environment, love and affection and other similar factors are
required to be taken into consideration. It is always said that,
"the moment a child is born, the mother is also born. The
woman existed before, but the mother never did. Therefore, it is
the only a mother who can nurture, take care of and look after
the child at every moment. To deprive her of a minor child's
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custody would deprive her of that right itself." Similarly, the
same can be said in respect of minor child also, that the child
would be deprived from getting mother's love and affection. No
doubt, father is capable too, however, the role of mother cannot
be compared with the role of the father.
12. So far as the treatment of the child is concerned,
learned counsel for the respondent has assured that the
respondent- wife would take every effort and would provide
best treatment which is available at Nanded or Hyderabad.
13. Two important factors are necessary to be considered
in the present matter, firstly, that the minor is of four years of
age at present and secondly, the petitioner No.1-father is
working as an Assistant Teacher. Both the aforesaid factors
compel me to pass order against the petitioners. No doubt,
paramount consideration is the welfare of the child and in my
opinion welfare of the child in these peculiar circumstances
when he is suffering from autism is availability of a person 24 x
7 so as to nurture and take care of him.
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14. The judgments relied upon by the learned Senior
Counsel are not helpful to the petitioners as principally they
discuss about the welfare of the child. In Gaytri Bajaj (supra)
much emphasis is given to the desire, interest and welfare of
the minor. So also, availability of a conducive and appropriate
environment for proper upbringing together with the ability and
the means of the parent concerned to take care of the child. In
the case of Mausami Moitra Ganguli ( supra), the Hon'ble
Supreme Court has said that heavy duty is cast upon the Courts
to exercise its discretion judiciously in the background of all the
relevant facts and circumstances bearing in mind the welfare of
the child as a paramount consideration. In Mamta Alias Anju
(supra), the importance is given to the psychological impact, if
any, on change in custody. Further, in the case of Tejaswini
Gaud and others (supra), in paragraph No.26, the Hon'ble
Supreme Court has reiterated that the paramount consideration
is the welfare of the child.
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15. After considering the ratios laid down by the Supreme
Court as well as this Court, the only conclusion that can be
drawn is that custody of the child is required to be given to the
respondent-wife (mother) herein. So far as psychological impact
on child is concerned due to change in custody, passage of time
will help the child settle. Further, the fact remains that it will
not be a new environment as his mother will be there with him.
Therefore, I find that both the Courts below have taken into
consideration the welfare of the child. So also, the learned
Appellate Court has further balanced the rights of the parties by
permitting the present petitioner No.1 to visit the child once in
two weeks.
16. Needless to mention at this juncture that the
impugned orders are dealing with the temporary custody of the
child and the matter is not completely disposed off as the
proceedings are pending, therefore without giving any finding
further, which would amount to passing of final order.
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17. It is needless to mention that merely giving custody to
the mother would not preclude the petitioners from giving
financial aid to the respondent-wife in case of emergency, and
the petitioners have bounden duty to help in providing the
treatment to the minor child. The order is passed in the best
interest of the minor and the petitioners may not consider this
order as adverse to their interest, hence the following order:-
(I). Criminal Writ Petition is dismissed.
( M. M. NERLIKAR , J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 29/09/2025 14:33:13
