[Cites 19, Cited by 0]

Bombay High Court

Sanjay Shankar Rathod And Others vs Supranjana Sanjay Rathod on 10 February, 2026

2026:BHC-AUG:5733

                                                                     902 CRI WP NO. 1337 OF 2025



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                            CRIMINAL WRIT PETITION NO. 1337 OF 2025

            1]         Sanjay Shankar Rathod
                       Aged about 41 years, Occu. : Service

            2]         Shankar Kishan Rathod
                       Aged : 66 years, Occu. : Nil

            3]         Kamal Shankar Rathod
                       Aged : 56 years, Occu. : Household

            4]         Santosh Shankar Rathod
                       Age : 43 years, Occu. : Agri and Business

            5]         Supriya Santosh Rathod
                       Age : 43 years, Occu. : Household

            6]         Savita Ravi Pawar
                       Age : 37 years, Occu. : Household

            7]         Sangeeta Ashok Chavan
                       Age : 37 years, Occu. : Household,
                       All R/o. Kamal Niwas, Sundar Nagar,
                       Tanda, North Parle, Tah, Karad,
                       Dist. Satara.                               ...Petitioners

                             VERSUS

            1]         Sau. Supranjana Sanjay Rathod
                       Aged about 34 years, Occu. : Service
                       R/o Laxman Chavhan, Datta City,
                       Behind Gajanan Temple,
                       Malegaon Road,
                       Nanded.                                     ...Respondent
                                                 ...

                   •   Mr. Mahesh Rai, Advocate for the Petitioners
                   •   Mr. Rupesh Hake, Advocate h/f. Mr. A. M. Reddy, Advocate for
                       Respondent
                                                 ...

            Jhs/                                                                  Page No. 1
                                                      902 CRI WP NO. 1337 OF 2025


                               CORAM : MEHROZ K. PATHAN, J.

                        RESERVED ON : 22.01.2026

                     PRONOUNCED ON : 10.02.2026

ORDER :

1. The petitioners have filed the present petition challenging the

judgment and order dated 25.08.2025 passed by the learned

Additional Sessions Judge-1, Nanded, in Criminal Appeal No. 11 of

2025, as well as the order dated 28.02.2025 passed by the learned

Judicial Magistrate First Class, Court No. 5, Nanded, below Exhibit-

4/1 in P.W.D.V.A. No. 52 of 2024, whereby interim custody of the

child has been granted to the respondent-wife under Section 21 of

the Protection of Women from Domestic Violence Act, 2005.

2. Learned counsel for the petitioners submits that petitioner

No.1 and the sole respondent are husband and wife. The marriage

between petitioner No.1 and the respondent was solemnized on

26.11.2017, and out of the wedlock, a male child, Bhim, was born on

10.05.2022. Due to matrimonial disputes between petitioner No.1-

husband and the respondent-wife, the respondent-wife left the

matrimonial home and started residing with her parents from around

September 2023.

3. It is submitted that a meeting was held at the house of the

respondent-wife at Nanded on 13.11.2023, which was attended by

the petitioner-husband along with his relatives. According to the

petitioner-husband, during the said meeting, the male child, who was

then aged about two years, was voluntarily handed over to him on

13.11.2023.

4. However, the respondent-wife has strongly contended in the

proceedings that on 13.11.2023, the petitioner-husband forcibly

snatched away the child from her custody. It is her contention that

she lodged a complaint with Bhagya Nagar Police Station, Nanded,

on 16.12.2023, alleging forcible removal of the child by the

petitioner-husband; however, no action was taken by the police

authorities.

5. As no action was taken by the police, the respondent-wife filed

proceedings before the learned Judicial Magistrate First Class,

Nanded, under Section 97 of the Code of Criminal Procedure, seeking

custody of the child on 06.01.2024, which proceedings were pending

at the relevant time.

6. Thereafter, the respondent-wife filed the present proceedings

under the Protection of Women from Domestic Violence Act, 2005,

against the petitioner-husband and the other petitioners, who are

relatives of the petitioner-husband, on 27.03.2024

7. It is the submission of the learned counsel for the petitioners

that the application filed by the respondent-wife under Section 97 of

the Code of Criminal Procedure before the learned Judicial

Magistrate First Class came to be rejected by order dated 19.08.2024.

Despite the rejection of the said application, the respondent-wife

continued to pursue the proceedings under the Protection of Women

from Domestic Violence Act, 2005, and filed an application under

Section 21 of the D.V. Act seeking interim custody of the child. The

said application for interim custody came to be allowed by the

learned JMFC by order dated 28.02.2025, thereby granting interim

custody of the child to the respondent-wife.

8. Aggrieved by the said order dated 28.02.2025, the petitioners

preferred an appeal before the learned Sessions Court, Nanded,

challenging the exercise of powers under Section 21 of the D.V. Act by

the learned JMFC. The learned Additional Sessions Judge, Nanded,

dismissed the said appeal by judgment and order dated 25.08.2025.

9. Learned counsel for the petitioners submits that neither the

learned Judicial Magistrate First Class nor the learned Additional

Sessions Judge, Nanded, considered the fact that the child was

voluntarily handed over to petitioner No.1-father by the respondent-

wife on 13.11.2023. It is further submitted that there is no

acknowledgment or material on record to show that any complaint

was lodged by the respondent-wife with Bhagya Nagar Police Station

on 16.12.2023.

10. It is contended that the respondent-wife had virtually

abandoned the child and is not in a position to take proper care of

the child. Therefore, the interim custody of the child, which was

voluntarily handed over by the respondent-wife on 13.11.2023, could

not have been granted back to her by order dated 28.02.2025,

particularly when the child had been continuously residing with

petitioner No.1-father for nearly one year and two months prior to

the passing of the said order.

11. Learned counsel for the petitioners places reliance upon the

judgments of the Hon'ble Supreme Court in Sumedha Nagpal v. State

of Delhi & Ors. (2000) 9 SCC 745, R.V. Shrinath Prasad v. Nandamuri

& Ors. (2001) 4 SCC 71, Athar Hussain v. Syed Siraj & Ors. (2010) 2

SCC 654, and Anjali Kapoor v. Rajiv Baijal (2009) Supreme (SC) 754.

Apart from the aforesaid judgments of the Hon'ble Supreme Court,

learned counsel for the petitioners has also relied upon the judgments

of the Hon'ble Bombay High Court in Swapnil Bhajandas Kamble v.

Sau. Manisha Swapnil Kamble 2022 ALL MR (Cri) 2296 and Arun

Sharma v. Roxanna Sharma 2014 (6) Bom. C.R. 2019.

12. The petitioners have also relied upon the recent judgment of

the Single Judge of the Hon'ble Bombay High Court, Bench at

Aurangabad, in Criminal Revision Application No. 158 of 2025 with

other connected applications, decided on 24.11.2025, in the case of

Sandeep Shivaji Pawar v. Mrs. Archana Sandeep Pawar.

13. As against this, learned counsel appearing for the respondent

has filed a reply opposing the present writ petition and submits that

after the child was forcibly taken away from the custody of the

respondent-wife on 13.11.2023, the respondent-wife continuously

pursued the petitioner-husband and the other petitioners for handing

over the custody of the child. As the custody was not restored, the

respondent-wife lodged a complaint with Bhagya Nagar Police

Station on 16.12.2023. However, since the petitioner No. 1 is the

father of the child, the police authorities did not take any action by

registering an FIR. The respondent-wife was, therefore, constrained

to file an application under Section 97 of the Code of Criminal

Procedure, which was registered as Criminal Miscellaneous

Application No. 28 of 2024. On 06.01.2024, the learned Court issued

notice, which came to be served upon the petitioners through the

concerned police station on 08.01.2024. The petitioner No. 1 - father

filed his reply on 05.02.2024, contending therein that the

respondent-wife had an alternative remedy to seek custody of the

child under the appropriate provisions of law. The said application

under Section 97 Cr.P.C. came to be dismissed by order dated

19.08.2025, primarily on technical grounds, namely that for invoking

Section 97 Cr.P.C., there must be detention of the minor with an

intention to commit an offence, which was not made out in the facts

of the present case.

14. It is further contended that the respondent-wife had

specifically mentioned in her application under Section 97 of the

Code of Criminal Procedure that she had submitted a complaint

dated 16.12.2023 at Bhagya Nagar Police Station, Nanded. It is

submitted in the reply filed by the petitioner No. 1 - father, that the

said complaint dated 16.12.2023 was termed as false, and on that

ground, no action was taken by the police authorities.

15. It is further submitted by learned counsel for the respondent

that the petitioner-husband has deliberately kept the child, namely

Bhim, away from the mother at a tender age, which itself causes

trauma to the young child by depriving him of the care and affection

of his mother. It is further submitted that the child is suffering from

bilateral severe hydronephrosis, and considering the young age of the

child, the mother, being the natural guardian, is best suited to take

care of the child. It is contended that these aspects were duly

considered by both the Courts below, and therefore, the learned

Courts have rightly granted interim custody of the child to the

applicant-wife, who is the present respondent.

16. It is further submitted that Section 21 of the Protection of

Women from Domestic Violence Act, 2005, specifically empowers the

Magistrate to grant temporary custody of the child to the aggrieved

person, upon an application being made, with appropriate

arrangements for visitation of the child by the respondent. Thus, the

powers under Section 21 of the D.V. Act have been rightly exercised

by the learned Magistrate.

17. It is contended that the learned Magistrate has taken into

consideration the necessary and relevant factors required to be

assessed while granting interim custody of a minor child, particularly

when the child is below the age of five years. The First Appellate

Court has also duly considered all the relevant aspects involved in the

present matter and, after examining the proviso to Section 6(a) of the

Hindu Minority and Guardianship Act, 1956, has rightly upheld the

order dated 28.02.2025 passed by the learned JMFC, by its judgment

and order dated 25.08.2025, thereby dismissing the appeal preferred

by the petitioners.

18. Learned counsel for the respondent has relied upon the

judgment of the Hon'ble Bombay High Court in Manjita Naik Teunkar

v. Soiroo @ Sarvesh C. Naik Teunkar & Another 2013 SCC OnLine

Bom 521. Relying upon the said judgment, it is submitted that

despite the statutory provisions and the various judicial

pronouncements governing custody matters, each case has to be

decided on its own facts and merits.

19. It is further submitted that the applicant-wife is employed as

an Assistant Engineer with the Maharashtra State Electricity Board

(MSEB), Nanded, and is financially capable of maintaining the child.

Being the natural guardian, she is also well-equipped to take care of

the needs of the minor child, who is aged about three and a half

years. It is contended that both the learned Trial Court and the

learned First Appellate Court have rightly adjudicated upon all the

relevant factors involved in the present matter and, after considering

the judgments of the Hon'ble Supreme Court, have directed handing

over of interim custody of the minor child in favour of the applicant-

wife/respondent herein, while granting visitation rights to the

petitioner-husband.

20. I have perused the order dated 28.02.2025 passed by the

learned 5th Judicial Magistrate First Class, Nanded. The learned

Magistrate has taken into consideration the fact that when the child

was taken away from the custody of the respondent-wife by the

present petitioner No. 1 - husband, the child was of tender age. At the

time of passing of the order, the child was aged 2 years, 9 months

and 15 days, and considering the young age of the child, the learned

Magistrate found it appropriate that the temporary custody of the

child should remain with the mother. The learned Magistrate has

further taken into account that the petitioner No. 1 - father is also a

natural guardian and, considering the love and affection of the father

towards the child, namely Bhim, has granted visitation rights to

petitioner No.1-father, permitting him to meet the child every

Sunday from 12.00 noon to 4.00 p.m.

21. The learned JMFC, Nanded had relied upon the judgment of

Smt. Manjita Naik Tuenkar Vs. Soiroor @ Sarvesh C. Naik Teunkar

and Ors.; ALL MR (Cri.) 2456 to handover the interim custody of the

child to the mother. The Hon'ble Supreme Court in the aforesaid

judgment was pleased to observe as under :-

"4. Mr. D'Souza, the learned counsel for the petitioner rightly submits that the entire approach of the Appellate Court has been incorrect and contrary to settled principles of law. For the child aged 5 years and that too a girl child in particular, the mother would be the natural guardian and as such first preference for granting custody of the child. It is only when the mother is shown to be unfit to have custody of the child then the father would be considered as the second preference for custody of the child. In the instant case, the Appellate Court has not even looked into the aspect whether the petitioner is fit to have custody. It is not disputed that on the date and time mentioned in the application, the respondent had snatched the child in the manner as alleged and gone away. This would mean that the child who was in the custody of the mother had been removed by the father without her consent."

22. The judgment and order dated 25.08.2025 passed by the

learned Additional Sessions Judge, Nanded, further reflects due

consideration of all relevant factors. The learned Additional Sessions

Judge has examined the judgments relied upon by both sides and,

after considering the legal position laid down by this Court in

Pramod Prakash Mulik & Another v. Manisha Pramod Mulik &

Another 2019 SCC OnLine Bom 1466, as well as the authoritative

pronouncement of the Hon'ble Supreme Court in Gaurav Nagpal v.

Sumedha Nagpal (2009) 1 SCC 42, was pleased to dismiss the

appeal.

23. A perusal of the application filed under Section 97 of the Code

of Criminal Procedure, as well as the complaint dated 16.12.2023

lodged at the police station, clearly reflects allegations of the child

having been forcibly removed from the interim custody of the mother.

The application under Section 97 Cr.P.C. came to be rejected only on

technical grounds, namely that there was no intention on the part of

the father to commit an offence against the minor child.

24. The learned Additional Sessions Judge has examined in detail

the applicability of the provisions of Sections 10 and 11 of the Code

of Civil Procedure vis-à-vis Section 21 of the Protection of Women

from Domestic Violence Act, 2005, and has rightly held that the said

provisions do not preclude the applicant-wife/respondent herein

from filing an application under Section 21 of the D.V. Act. Neither

Sections 10 and 11 of the C.P.C., nor Section 97 of the Cr.P.C., operate

as a bar to the maintainability of an application seeking interim

custody under Section 21 of the D.V. Act.

25. The paramount consideration in matters relating to custody is

the welfare of the child. Considering the allegations regarding

forcible removal of the child by the petitioner-father from the custody

of the respondent-mother, the proviso to Section 6(a) of the Hindu

Minority and Guardianship Act, 1956, becomes relevant. It is well-

settled that proviso to Section 6(a) mandates ordinarly that the

mother is the natural guardian of a minor child who is below the age

of five years. In the present case, the child is presently aged more

than three and a half years, but below 5 years. The respondent-wife is

employed as an Assistant Engineer with the Maharashtra State

Electricity Board (MSEB) and has sufficient means to maintain herself

and the minor child. The child is suffering from bilateral severe

hydronephrosis, which requires constant care and attention, and such

care can be effectively provided by the respondent-wife, who is the

natural guardian. Taking into consideration the paramount

consideration, namely the welfare of the child, who has been

deprived of the maternal care and affection at such a tender age, I am

not inclined to interfere with the findings of the Courts below.

26. The petitioner No.1-father has already been granted visitation

rights and is permitted to meet the child every Sunday between 12.00

noon and 4.00 p.m. The petitioner-father is also employed as an

Assistant Engineer, and considering his professional commitments, he

may not be in a position to provide continuous care to a child of such

tender age. Thus, in view of the statutory mandate under the proviso

to Section 6(a) of the Hindu Minority and Guardianship Act, 1956,

the custody of a minor child below five years has rightly been

continued with the respondent-mother.

27. In the case of Gaurav Nagpal V. Sumedh Nagpal (Supra), it is

observed as under :-

"52. The trump card in the appellant's argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detai in the impugned judgments.

53. The conclusions arrived at and reasons indicated by the High court to grant custody to the mother do not in our view suffer from any infirmity. It is true that taking the child out of the father's custody may cause some problems, but that is bound to be neutralised."

28. Taking into consideration the aforesaid judgments and the law

laid down by the Hon'ble Supreme Court in Gaurav Nagpal (supra), it

is evident that the long stay of a child with the father, by itself,

cannot be the sole ground to deny custody of a child below 5 years to

the mother, particularly when there are allegations that the child was

forcibly taken away from the mother's custody. It is true that taking

the child from father's custody may cause some problems, but that is

bound to be neutralized.

29. The Hon'ble Supreme Court in Roxann Sharma v. Arun

Sharma; (2015) 8 SCC 318 has lucidly explained the scope and

significance of the proviso to Section 6(a) of the Hindu Minority and

Guardianship Act, 1956, and observed 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 the decisions of this Court and very 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 overemphasised. 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 the word "ordinarily" inasmuch as he has observed in para 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 Parliament or the legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment."

30. In the present case, the petitioner-father has failed to

demonstrate any material on record to rebut the statutory

presumption in favour of the respondent-mother. On the contrary, the

material placed on record indicates that the respondent-mother is

gainfully employed, financially independent, and capable of taking

proper care of the minor child, who is of tender age and is suffering

from bilateral severe hydronephrosis, requiring constant care and

medical attention. The judgments relied upon by the petitioner -

father, does not apply in the facts of the present case.

31. The visitation rights granted to the petitioner-father

sufficiently protect his right to interact with the child and ensure

emotional bonding. The orders passed by the learned Magistrate as

well as the learned Appellate Court strike a just balance between the

welfare of the child and the rights of both parents.

32. Thus, upon an overall consideration of the facts of the case, the

statutory provisions, and the settled legal position governing custody

of minor children, this Court does not find any perversity, illegality, or

jurisdictional error in the impugned orders warranting interference in

exercise of powers under Articles 226 and 227 of the Constitution of

India.

33. Consequently, this Court is not inclined to entertain the present

writ petition. The writ petition is devoid of merit and substance and

is therefore dismissed.

34. At this stage, it is also necessary to take note of the conduct of

the petitioner-father. A perusal of the order dated 28.02.2025 passed

by the learned Judicial Magistrate First Class, Court No. 5, Nanded,

in P.W.D.V.A. No. 52 of 2024 would show that the petitioner was

directed to hand over the custody of the minor child to the

respondent-mother within a period of fifteen days from the date of

the said order. However, the petitioner preferred an appeal and,

during the pendency of the appeal, the operation of the said order

remained stayed. Consequently, the custody of the child was not

handed over to the respondent-mother. After dismissal of the appeal,

the learned Appellate Court, by order dated 25.08.2025, continued

the interim protection till 22.09.2025. The office note further reflects

that during the pendency of the present writ petition, there was no

specific interim relief granted by this Court initially. However, vide

order dated 30.09.2025, interim relief was directed to continue.

Thus, the petitioner continued to retain custody of the child during

the pendency of these proceedings.

35. In view of dismissal of the writ petition, the interim relief, if

any, stands vacated. The petitioner is directed to hand over the

custody of the minor child to the respondent-mother within a period

of fifteen (15) days from the date of passing of this order.

36. However, insofar as visitation rights of the petitioner-father are

concerned, the same are modified as under :-

A) In addition to the visitation rights on each Sunday of every

month between 12.00 noon and 04.00 p.m., it is further

directed that twice in every month, the respondent-mother

shall permit the minor child to visit the petitioner-father from

08.00 a.m. to 08.00 p.m. on dates to be fixed by the

petitioner-father after due prior intimation to the respondent-

mother. On such days, the petitioner-father shall take custody

of the child from Bhagyanagar Police Station, Nanded, at 08.00

a.m. and shall return the child to the same place at 08.00 p.m.,

without fail.

( MEHROZ K. PATHAN ) JUDGE

37. After pronouncement of the order, learned counsel for the

petitioner seeks continuation of the interim order, contending that

the interim relief was operating both before the learned Sessions

Court in appeal and before this Court. However, it is noted that the

learned JMFC had granted interim custody of the minor child to the

respondent-mother and directed that the custody be handed over

within a period of fifteen days. The said direction has not been