As per case facts, the Petitioner-father filed a Writ Petition seeking a Writ of Habeas Corpus for the production of his minor child, alleging that the Respondent-mother unlawfully removed the ...
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WP-371-2026.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 371 OF 2026
Shamik Haresh Hirani )
Hindu, Indian Inhabitant, )
Age 34 years, Occupation – Self employed )
Residing at 801, Rudraksh Co-op. Hsg. Society )
Nariman Road, Opp. Nariman Tower )
Vile Parle (East), Mumbai – 400 057 )
Mobile : + 91 7045897796 )
Email : shamikhareshhirani#gmail.com )...Petitioner
Versus
1. The State of Maharashtra )
Through Sr. Police Inspector )
Borivali Police Station )
(Notice to be served on A.P.P. )
High Court, Mumbai) )
2. Richita Shamik Hirani )
Nee Richita Pravin Shah )
Age 34 years, Occupation – Service )
Hindu, Indian Inhabitant of Mumbai )
Residing at 801, Goyal Plaza )
Carter Road No.4, Borivali (East) )
Mumbai – 400 066. )
Email : drrichitashah@gmail.com )
Mobile # 91 9820658744 )
3. Lata Pravin Shah )
Age 55 years, Occupation – Housewife )
Residing at 801, Goyal Plaza )
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RUPALI
RAJESH
WAKODIKAR
Digitally
signed by
RUPALI
RAJESH
WAKODIKAR
Date:
2026.04.24
15:09:39
+0530
WP-371-2026.doc
Carter Road No.4, Borivali (East) )
Mumbai – 400 066. )
4. Pravin Thanmal Shah )
Age 58 years, Civil Contractor )
Residing at 801, Goyal Plaza )
Carter Road No.4, Borivali (East) )
Mumbai – 400 066. )
5. Sandeep Mehta )
Age 50 years, Occupation – Business )
Residing at : The Nest Building, )
4
th
Floor, Plot No.21, Gulmohar Road )
MHADA Colony, Andheri (West), )
Mumbai – 400 049. )
Mobile : 9930222020 )
6. Witty World (Witty Kids) )
International School )
Through its Principal, having its address )
at Block – 7, Phase 2, Kanti Park Layout )
Kanit Park Road, Borivali (West) )
Mumbai – 400 092. )
7. ‘H’ )
Age 4 years, Occupation – Nil )
residing at 801, Rudraksh Co-op. )
Hsg.Society, Nariman Road, )
Opp. Nariman Tower )
Vile Parle (East), Mumbai – 400 057. )...Respondents
Ms. Firoza Daruwala a/w Ms. Prabha Badadare & Ms. Khushi Desai
for the Petitioner.
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Ms. Supriya Kak, A.P.P for the Respondent-State.
Ms.Firdaus Moosa i/b Hemali Mehta Tejani for the Respondent No.2.
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
RESERVED ON : 18
th
APRIL, 2026
PRONOUNCED ON : 24
th
APRIL, 2026
JUDGMENT (PER SANDESH D. PATIL, J.) :
1. By this petition, the Petitioner, who is the father of the
minor child ‘H’ (hereinafter referred to in short as ‘the minor child’) is
seeking issuance of Writ of Habeas Corpus to produce the minor child
before this Court.
2. The case of the Petitioner is as follows :
The marriage between the Petitioner and the respondent
No.2 was solemnized on 4
th
December, 2017. The minor child was
born on 24
th
February, 2021. Since birth, the minor child resided with
the Petitioner being a father and the respondent No.2 being a mother.
There were some matrimonial disputes between the Petitioner and the
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respondent No.2. the minor child is at present in custody of the
respondent No.2. The Petitioner has filed the present writ petition for
production of the minor child before this Court.
3. This Court on 30
th
January, 2026, had referred the matter
to a Mediator. The parties went for Mediation, however, the
Mediation has failed.
The respondent No.2 – wife had sought time to file
affidavit-in-reply and accordingly, the affidavit-in-reply was filed. We
again asked the parties whether they would like to reconcile the
differences amongst themselves, to which, the parties answered in the
negative. This Court had vide order dated 25
th
March, 2026 directed
that the learned Family Court before whom the application preferred
by the Petitioner–husband for custody of the minor child, is pending,
shall expeditiously take up the application and if necessary, the
application for interim custody / interim access shall be heard on
urgent basis and that the pendency of the present petition shall not
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come in the way of the Family Court to decide the issue. We are
informed across the bar that in pursuance to the Order dated 25
th
March, 2026, the learned Family Court had ordered that both the
parties shall file written notes of arguments, on record on 28
th
April,
2026. Thus, the matter is fixed before the learned 5
th
Family Court at
Bandra, Mumbai for hearing of the custody application on 28
th
April,
2026. This in short, is a conspectus of the matter in hand.
4. The learned Counsel appearing for the respondent had
raised a preliminary issue regarding maintainability of the petition as
according to the respondent No.2, an appropriate remedy in the
nature of the application for custody of the minor child is already
adopted by the Petitioner before the Family Court.
5. Heard the learned Counsel Ms. Firoza Daruwala appearing
for the Petitioner and learned Counsel Ms. Firdaus Moosa appearing
for the respondent No.2.
6. Learned Counsel for the Petitioner submitted that the
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marriage between the parties i.e. the Petitioner and the respondent
No.2 was solemnized on 4
th
December, 2017. The minor child was
born on 24
th
February, 2021. Initially, in February, 2023, the minor
child was enrolled in Veda Montessori which was in close proximity to
the Petitioner’s residence. She submitted that the respondent No.2
left her matrimonial house after packing her belongings and stridhan
without taking the minor child on 24
th
March, 2025. The minor
child, thereafter, remained in the care, custody of the Petitioner and
his family, at his residence. It is further contended that the
respondent No.2 returned on 30
th
March, 2025 to her matrimonial
house and continued to reside there. Once again, following an
argument on 23
rd
April, 2025, the respondent No.2 left her
matrimonial house and went to reside at her parental residence
without the minor child.
7. Learned Counsel for the Petitioner invited our attention to
the reply which was filed by the respondent No.2 in this Court. She
submitted that in para 22 of the affidavit-in-reply, the respondent
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No.2 has categorically stated that she had left the matrimonial house
after the arguments. It is further submitted by the learned Counsel
appearing for the Petitioner that at the request of the respondent
No.2, the minor child was sent to the parental residence of the
respondent No.2 on 24
th
April, 2025. Since there was a birthday
party, the respondent No.2, after attending the birthday party with the
minor child, returned the minor child back to the Petitioner on 27
th
April, 2025. It is her contention that the minor child continued in the
settled custody of the Petitioner at the residence of the Petitioner from
27
th
April, 2025. Learned Counsel for the Petitioner further
submitted that on 2
nd
May, 2025 the respondent No.2 alongwith
respondent No.3 (her mother) surreptitiously entered the Petitioner’s
residence in his absence. The respondent Nos. 4 and 5 remained
stationed in the vehicle outside with the engine of the vehicle running.
She submitted that the respondent Nos. 2 and 3 forcefully removed
the minor child without the Petitioner’s knowledge and consent. She
relied upon the photographs which were annexed to Annexure “F” to
the petition to buttress her contention. In addition to this, she stated
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that even the respondent No. 2 has admitted in para 29 of her
affidavit in reply that the respondent No.2 had taken away the minor
child from her matrimonial house.
8. Learned Counsel appearing for the Petitioner contended
that the respondent No.2 thus, unlawfully removed the minor child
from the custody of the Petitioner and forcefully took the minor child
to the parental home of the respondent No.2 on 2
nd
May 2025. She
contended that the custody with the respondent No.2 is thus illegal
and that the minor child be brought back and be placed in the custody
of the Petitioner.
9. As far as the issue regarding maintainability of the petition
is concerned, the learned Counsel appearing for the Petitioner
submitted that the minor child was in a settled and continuous custody
of the Petitioner since his birth. It is only on 2
nd
May, 2025 that the
respondents in absence of the Petitioner, forcibly and surreptitiously
removed the minor without the knowledge and consent of the
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Petitioner. This, according to the learned Counsel for the Petitioner is
not a mere dispute as to guardianship or access, but it is a matter
concerning a wrongful and unlawful removal from the settled custody.
She stated that the petition is, therefore, maintainable. Learned
Counsel for the Petitioner further contended that where the custody of
the minor is illegal or without the authority of law, the petition
seeking Habeas Corpus is maintainable, even where the minor child is
in custody of another parent. In support of her contention, she had
relied on the Judgment of the Apex Court in the case of Yashita Sahu
v. State of Rajasthan & Ors
1
. She further stated that the Writ Court
can certainly examine illegality of custody and intervene where
detention of the minor child by a parent was illegal and without the
authority of law. In support of her contention, she also relied upon
the Judgment of the Apex Court in the case of Tejaswini Gaud &
Ors.v. Shekhar Jagdish Prasad Tewari & Ors.
2
10. Learned Counsel appearing for the Petitioner further stated
1 (2020) 3 SCC 67
2 (2019) 7 SCC 42
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that mere pendency of the custody proceedings before the learned
Family Court does not bar the petition in view of the forcible and
unilateral removal of the minor child. She stated that the writ
jurisdiction is invoked by her to remedy an immediate illegality and to
restore
status-quo ante, while final custody will be decided by the
competent Court.
Learned Counsel for the Petitioner stated that the inherent
jurisdiction of this Court to issue writ of Habeas Corpus is
constitutional in nature and not circumscribed by the statutory
remedies. She further stated that the Habeas Corpus jurisdiction in
the minor child custody matter is an independent and inherent
jurisdiction exercised as
parens patriae and is not curtailed by
availability or pendency of statutory remedies. She relied upon the
Judgment in the case of
Rajeswari Chandrasekar Ganesh v. State of
Tamil Nadu & Ors.
3
. She submitted that the writ petition is therefore
maintainable.
3 (2023) 12 SCC 472.
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As far as merits of the case as stated above is concerned,
according to the learned Counsel for the Petitioner, the minor child
was very well in the custody of the Petitioner till 2
nd
May, 2025 and
that the minor child was forcibly removed from the custody of the
Petitioner without his knowledge and/or consent. She stated that the
incident of the respondent Nos. 2 and 3 forcibly removing the minor
child from the custody of the Petitioner is clearly visible in the CCTV
footage. She, therefore, prayed that the petition be allowed.
11. Learned Counsel Ms.Moosa, on the other hand, contended
that the petition was not maintainable. She submitted that the remedy
of Habeas Corpus in custody matter can be exercised only in
extraordinary circumstances and that the present case certainly does
not fall in the term of extraordinary circumstances. She submitted
that the present case is not of illegal detention because the respondent
No.2 is a natural guardian. She stated that she had entered her
matrimonial house on 2
nd
May, 2025 by using the fingerprint lock.
She submitted that thus, the respondent No. 2 has not illegally barged
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into the house. She stated that when she went to her matrimonial
house on 2
nd
May, 2025, she saw her minor child vomiting and that
therefore, being the mother, she calmly picked up the minor child.
Learned Counsel for the respondents submitted that the respondent
No.2 had not pushed or assaulted the Petitioner’s sister and that she
merely wanted to take the minor child to a doctor as the minor child’s
condition was not stable. She further submitted that the minor child
was repeatedly vomiting and was unwell. She has drawn our attention
to para 29 of her affidavit-in-reply to show as to in what
circumstances the minor child was taken away from the matrimonial
home by the Petitioner.
12. Learned Counsel for the respondent No.2 contended that
the arguments of the Petitioner that the Petitioner was denied access to
the minor child and also not allowed to contact the minor child is also
incorrect. She stated that the Petitioner knows about the whereabouts
of the minor child. She stated that on 13
th
, 14
th
, 17
th
, 18
th
, and 19
th
May, 2025, the Petitioner had met the minor child on multiple
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occasions. She relied upon para 33 of the affidavit-in-reply of the
respondent No.2 to buttress her contentions.
She stated that that Petitioner has threatened to circulate
the private videos of the respondent No. 2 and hence, the respondent
No.2 is apprehensive about the behaviour of the Petitioner. She stated
that the custody application was filed by the Petitioner somewhere in
July, 2025 before the learned Family Court. The present petition is
filed in January, 2026 when the custody petition was already pending
before the learned Family Court. She stated that the learned Family
Court has already kept the matter for accepting the written arguments
of the parties, on 28
th
April, 2026. She further stated that this Court
has already expedited the hearing of the custody petition including the
interim / ad-interim applications preferred in the said custody petition.
She stated that the minor child is in lawful custody of his mother. The
application for custody is pending before the appropriate Family
Court. She stated that there are several disputed questions of facts in
the present case and that the same is left to be decided before the
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Family Court in the custody application.
In support of her case, she relied upon the Judgment in the
case of Jose Antonio Zalba Diez Del Corral v. The State of West
Bengal & Ors.
4
. She places reliance on para 14 to contend that the
Writ of 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 ineffective. She stated that since the learned Family Court
has already placed the matter on 28
th
April, 2026 for taking the
written arguments on record, there is no element of “extraordinary
circumstance” for entertaining this petition. She also relied upon the
Judgment in the case of Varun Malhotra v. The State of NCT of Delhi
& Ors.
5
to contend that while deciding the matters of custody of a
minor child, primary and paramount consideration is welfare of the
minor child. She stated that the issues pertaining to competing actual
allegations cannot be satisfactorily resolved in writ petition. She has
4 (2024) 12 scc 419
5 MANU/DE/1682/2026
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tendered, across the bar, the order dated 13
th
April, 2026 passed by
the learned Family Court at Bandra, Mumbai in custody application
file by the Petitioner. She, at the end, prayed for the dismissal of the
petition.
13. We have heard the learned Counsel appearing for the
parties, at length. The preliminary objection of the respondents is
that the writ petition for Habeas Corpus is not maintainable,
particularly, in view of the fact that the Petitioner has already
approached the Family Court by filing custody application, requires to
be considered first. In this case, the allegations of the Petitioner -
father is that the minor child was taken out of his custody without his
knowledge and consent from his residence and hence, the writ petition
was maintainable. The very basis of the case of the Petitioner is that
the respondent No. 2 barged in the house of the Petitioner and
high-handedly took the minor child from the house. It is also the
contention of the Petitioner that the present remedy availed by him is
an independent and inherent jurisdiction of this Court and therefore,
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mere pendency of custody application would not be relavant. As
against this, learned Counsel for the respondents has relied upon her
affidavit where she has stated that she always had access to her
matrimonial house. It is contended by the respondent No.2 that she
had never barged illegally into the house as alleged by the Petitioner,
instead, she had entered the house by using the fingerprint lock and
that because the minor child was too ill, hence, she had taken away
him to the doctor for the treatment. The entire cornerstone of the
arguments of the respondent is that the minor child has never been in
exclusive custody of the Petitioner and that she never barged into the
house illegally, but went to her matrimonial house peacefully.
14. The issue as to whether what had happened on 2
nd
May,
2025 is the issue for core consideration. Both the parties have given
different versions about the said incident. Whereas, the Petitioner
contended that the said entry was illegal and forceful, so also the exit
of the respondent No. 2 from the house alongwith the minor child
was illegal and surreptitious. The respondent No. 2, on the other
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hand, contended that she had entered the house by using the
fingerprint lock. She contended that the house was her matrimonial
house. She also contended that only because the minor child was
vomiting and was not well, hence, she had taken the minor child with
her. This disputed question of fact certainly cannot be gone into by
this Court.
15. The pleadings of the parties are totally divergent on this
view. This is a case of oath against oath. The Petitioner - father has
filed the custody application before the learned Family Court which is
pending before the learned 5
th
Family Court at Bandra, Mumbai, is
required to be taken into consideration. It is also further required to
be considered that on 25
th
March, 2026, in this very petition, this
Court had directed the Family Court to expeditiously take up the
application of custody, if necessary, the application of interim custody
or interim access, on urgent basis. This order is holding the field till
today, that is not challenged by any of the parties. Further the fact
remains that the learned 5
th
Family Court, at Bandra, Mumbai, in
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proceedings bearing Petition No. D-79 of 2025 has observed that the
interim custody application of the minor child of the Petitioner was
taken up for hearing. The reply was filed by the respondents therein
to the said application. Both the parties vide Order dated 13
th
April,
2026 are directed to file their written notes of arguments on 28
th
April, 2026 and the matter is posted immediately on the said date.
16. Thus, the learned Family Court is deciding the application
for interim access / custody filed by the Petitioner on an urgent basis.
Since, several disputed questions of facts are arising in this
proceedings, coupled with the fact that the competent Family Court
has already taken up the matter on an urgent basis and has now kept
the matter on 28
th
April, 2026, we do not find it appropriate to
entertain the present petition.
17. The pleadings before the learned Family Court are
completed. The written arguments will be filed on 28
th
April, 2026
and as such, it would be in the interest of the parties that the parties
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are relegated to the Family Court for the purpose of deciding the
application for interim custody / access. We find that there are no
extraordinary circumstances to entertain the present petition. We,
therefore, dismiss the petition keeping the contention of both the sides
open in the custody petition filed before the learned Family Court.
18. We have perused the Judgments cited by both the parties.
The common thread which runs through all those Judgments is that
welfare of the minor child is of primary consideration. As stated
above, there are several disputed questions of facts which are involved
in this petition. It is best left for the Trial Court to decide the matter
on merits. There is no extraordinary circumstance made out by the
petitioner to disturb the custody of the minor child at this juncture.
The minor child at present is in safe custody of the mother. We are,
therefore, not granting any relief in this petition.
19. We are conscious of the human emotions, the Petitioner
being father of the minor child has chosen to approach this Court for
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expeditious access. We do not find any fault in the conduct of the
Petitioner. We, therefore, do not propose to impose any cost on the
Petitioner, though the learned Counsel for the petitioner had prayed
for heavy costs.
20. We make it clear that we have not gone into the merits of
the contentions raised by both the sides. All contentions of the parties
are expressly kept open.
21. The learned Family Court, to decide the application for
interim custody / access without being influenced by any of the
observations made in this petition.
22. No relief is granted in this petition. Petition is dismissed
accordingly.
SANDESH D. PATIL, J. SARANG V. KOTWAL, J.
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