The Bombay High Court, in a significant ruling on child custody, has held that a biological father’s right to the custody of his child is superior to that of the paternal grandmother, even when proceedings for custody are pending before a Family Court. A Division Bench of Justices Ravindra V. Ghuge and Gautam A. Ankhad allowed a writ petition of habeas corpus filed by a father, directing the police to secure the custody of his five-year-old son from the child’s grandmother and hand him over to the petitioner.
Background of the Case
The petitioner, Pravin Nathalal Parghi, is the biological father of five-year-old twin boys, born in November 2019 through surrogacy. While one son, Mst. Lakshya Parghi, is in the petitioner’s custody, the other, Mst. Lavya Parghi, has been in the custody of his paternal grandmother, Respondent No. 5.
According to the facts presented, the twins had health complications at birth, and it was mutually agreed that Mst. Lavya would stay under the care of his grandmother. However, disputes subsequently arose between the petitioner and his parents, leading to multiple legal proceedings. The petitioner had filed a case under the Guardians and Wards Act, 1890, before the Family Court to obtain custody of his son. Concurrently, Respondent No. 5 had filed an FIR against the petitioner and his brother under various sections of the Bharatiya Nyaya Sanhita, 2023, and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
After his requests to police and legal notices for the return of his child were unsuccessful, the petitioner filed the present writ petition seeking a Writ of Habeas Corpus.
Arguments of the Parties
Ms. M. J. Reena Rolland, appearing for the petitioner, argued that as the biological father and natural guardian, the petitioner has a rightful claim to his son’s custody. She submitted that there is no marital discord between the petitioner and his wife, and that he is gainfully employed and capable of ensuring the child’s well-being. It was contended that the twins should not be separated and that Respondent No. 5 has no superior legal right to retain custody.
Opposing the petition, Ms. Parul Shah and Ms. Pratibha Bangera, representing the grandmother (Respondent No. 5), contended that the petitioner and his wife had voluntarily entrusted the child’s custody to the grandparents, describing the twins as a “burden” at birth. They argued that the petitioner is emotionally and financially incapable of caring for both children, especially since the other twin suffers from cerebral palsy. It was further alleged that the petitioner’s true motive was a property dispute and that the habeas corpus petition was not maintainable as an alternate statutory remedy had already been pursued in the Family Court.
Court’s Analysis and Judgment
The High Court framed the central issue as whether it ought to exercise its writ jurisdiction in habeas corpus despite the pendency of custody proceedings before the Family Court.
The bench, speaking through Justice Ankhad, affirmed that a writ of habeas corpus is an extraordinary remedy but is maintainable in child custody matters in exceptional circumstances. The court observed, “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.”
Citing the Supreme Court’s decision in Tejaswini Gaud vs. Shekhar Tiwari, the court stated, “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.” It further noted that the existence of a remedy under the Guardians and Wards Act is not a justification for denying relief under a writ petition.
Applying this principle, the court found that the present matter fell into an “extraordinary category.” It held that the petitioner, “being the biological father and natural guardian, has an undisputed legal right to claim custody of his child.” The court rejected the grandmother’s allegations regarding the father’s incapacity, noting that he is employed with the MCGM and is already caring for the other twin who has special needs.
The judgment emphasized that while an emotional bond may exist between the child and the grandmother, “such attachment does not confer upon her a superior right to custody over that of the biological parent.” The court concluded, “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.”
The court found the petitioner’s reliance on the recent Supreme Court judgment in Gautam Kumar Das vs. NCT of Delhi to be “well-founded,” noting its factual similarity.
Final Decision
The High Court partly allowed the petition and directed the police to secure custody of Mst. Lavya Parghi from Respondent No. 5 and hand him over to the petitioner within two weeks.
Recognizing that the “welfare of the child is the paramount consideration,” the court put in place transitional measures. The petitioner was directed to ensure the child’s schooling and extra-curricular activities remain undisturbed. To facilitate a smooth transition, the grandmother was granted visitation rights on any weekday for an initial period of three months. Both parties were directed to cooperate fully in the child’s best interests, with the liberty to approach the Family Court for further directions if any difficulties arise.
