[Cites 3, Cited by 0]
Bombay High Court
Praful Shankar Gedam vs The State Of Maharashtra Thr The ... on 4 February, 2026
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
Order cri wp 96.2026.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 96 OF 2026
[Praful Shankar Gedam vs. The State of Maharashtra, through the Commissioner of Police,
Nagpur and ors.]
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Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's orders
or directions and Registrar's orders.
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Mrs. Meera P. Kshirsagar, Advocate for the petitioner
Mr. A. B. Badar, A.P.P. for the State
CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
DATE : 04-02-2026.
Heard.
2. The petitioner - husband has filed petition
seeking writ/direction in the nature of habeas corpus
directing respondent nos. 1 to 3 to trace his minor son
Vipul, who is, as such in the custody of his mother -
respondent no. 4.
3. According to the petitioner, the mother is
suffering from mental ailment and is not in a position to
take care of the child. Learned counsel for the
petitioner has relied upon order of the trial Court dated
16-1-2026 directing respondent no. 4 to hand over
interim custody of the child to the petitioner. The trial
Court has also directed the concerned police station to
take custody of the child and hand it over to the
petitioner, if its order is not complied by respondent
no. 4.
Order cri wp 96.2026.odt
4. We requested learned Additional Public
Prosecutor (APP) to take instructions from concerned
police station. Accordingly, instructions are taken.
5. Learned APP submits that respondent no. 4 is
not available at the place mentioned in the application.
He further submits that order dated 16-1-2026 has been
challenged by the brother of respondent no. 4. The
details, however, are not furnished.
6. Thus, interim custody is granted to the
petitioner and the order by which it is granted is under
challenge. The word 'interim custody' would also mean
that the custody is otherwise maintained with the
respondent no. 4. Such a custody cannot be treated as
illegal detention.
7. Here, we invite attention of the petitioner to
the judgment of the Supreme Court in the case of
Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad
Tewari and others [(2019) 7 SCC 42] wherein the
Supreme Court, after considering earlier judgments,
held thus :
"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
Order cri wp 96.2026.odt
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 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
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."
8. Considering the position of law as mentioned
above as also what we have mentioned in earlier
paragraphs, the petitioner shall justify filing present
Order cri wp 96.2026.odt
petition. In the meantime, issue notice, returnable in
three weeks.
9. Learned APP waives notice for respondent
nos. 1 to 3.
(JUDGE) (JUDGE.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 04/02/2026 17:46:16
