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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.3975 OF 2023

1.Yogesh Gangaram Sanap,

Age 35 years, Occu – Service

2.Rupali Yogesh Sanap,

Age 32 years, Occu -Housewife,

Both residing at Room No.11-J,

Chandrakant Bhoir Chawl, Mangal

Ragho Nagar, Near Saibaba Temple,

Teesgaon Road, Teesgaon,

Kalyan (East). ...Petitioners

versus

Anil Mahadev Raghav,

Age Adult, Occu – Service,

Residing at Room No.5-Q,

Chandrakant Bhoir Chawl, Mangal

Ragho Nagar, Near Saibaba Temple,

Teesgaon Road, Teesgaon,

Kalyan (East). … Respondent

Mr. Prashant B. Kayande, for Petitioners.

Mr. Samir B. Pawar, for Respondent.

CORAM: N.J.JAMADAR, J.

RESERVED ON : 27 MARCH 2026

PRONOUNCED ON : 31 AUGUST 2026

JUDGMENT :

1.Rule. Rule made returnable forthwith, and, with the consent of the

learned Counsel for the parties, heard finally.

2.This Petition under Articles 226 and 227 of the Constitution of India

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assails the legality, propriety and correctness of an order dated 28 November

2022, passed by the learned District Judge, Kalyan, on an application for

grant of interim custody of the girl child ‘Y’, during the pendency of the

application for permanent custody of the child, whereby the said interim

application (Exh.5) came to be rejected.

3.The background facts leading to this petition can be stated, as under :

3.1The Petitioners are the biological parents of the child ‘Y’. Respondent

No.1 was the neighbour of the Petitioners. The Petitioner No.1 and the

Respondent developed a friendly relationship as both were working in a

company M/s. Haymarket SAC Publishing (India) Pvt. Ltd. The daughter ‘Y’

was born to the Petitioner No.2 on 1 December 2014. ‘Y’ was the third

daughter of the Petitioners. The Respondent and his wife were issue-less.

3.2The Petitioners assert that, when ‘Y’ was three months old, Respondent

and his wife implored the Petitioners to give the custody of ‘Y’ to the wife of

the Respondent for a temporary period as it would have positive impact on

the state of mind of the wife of the Respondent and she might conceive. In

good faith, the Petitioners acceded to the request of the Respondent and

allowed the Respondent and his wife to have the temporary custody of their

daughter ‘Y’. However, when the Petitioners discussed the issue of admission

of ‘Y’ in a pre-school, the Respondent informed the Petitioners that he had

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already admitted ‘Y’ in a Little Angle Nursery, a play-group by enrolling her

under the name of “Ovi Anil Raghav”. The Petitioners, thus, realized that,

taking undue advantage of the generosity of the Petitioners in giving

temporary custody of ‘Y’, the Respondent had enrolled ‘Y’ in the playgroup as

‘Ovi Anil Raghav’, and, thereby deceived the Petitioners. Thus, the

Petitioners addressed letters to the schools in which ‘Y’ was admitted

unbeknownst to the Petitioners in the false name of ‘Ovi Anil Raghav’.

3.3Thereafter, there was change in the attitude of the Respondent and his

wife. They declined to send ‘Y’ to the house of the Petitioners, though they

were her biological parents and natural guardians. The Respondent and his

wife also restrained the Petitioners and their family members from meeting ‘Y’

by keeping ‘Y’ away from them, on one or the other pretext. The Respondent,

thus, forcibly and illegally retained the custody of ‘Y’ without any semblance of

authority.

3.4Eventually, the Petitioners addressed legal notice to the Respondent on

29 June 2019 to deliver the custody of ‘Y’ back to the Petitioners. A false and

frivolous reply was given by the Respondent on 12 July 2019 that, ‘Y’ was

given in adoption to the Respondent. The Petitioners, thus, filed an

application under Section 25 of the Guardians and Wards Act, 1890 (GW Act,

1890) seeking permanent custody of ‘Y’ asserting, inter alia, that the welfare

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of the child would not be secured if the child remains in the custody of the

Respondent, who has illegally detained the child.

3.5The Respondent resisted the application by filing an affidavit in reply.

3.6During the pendency of the said application, the Petitioners preferred

an application under Section 12 of the Act, 1890, for interim custody of ‘Y’. In

the said application, it was, inter alia, averred that the Petitioners had secured

admission of ‘Y’ in Pacific Global Pre-School for the year 2019-20. As the

Respondent was not delivering custody of the child to the Petitioners, the

child’s education and development was prejudicially affected.

3.7Adverting to the facts narrated in the main application, the Petitioners

asserted that, in the peculiar facts and circumstances of the case, in order to

secure the welfare of the child ‘Y’, it was just and proper that, pending hearing

and final disposal of the main application, the interim custody of the child was

delivered to the Petitioners.

3.8The Respondent resisted the said application as well, on the premise

that on 23 January 2015, the Petitioners had given the child ‘Y’ in adoption to

the Respondent and his wife in a ceremony. Subsequently, a naming

ceremony was held on 5 April 2015, at the then residence of the Respondent

at Parel, where the child ‘Y’ was named ‘Ovi’, in the presence of the

Petitioners and others. The Petitioners had agreed to execute a formal deed

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of adoption and render necessary co-operation in the said process. Later on,

the Petitioners resiled from their promise. For almost five years, the

Petitioners did not raise any objection regarding the Respondent and his wife

acting as adoptive parents of ‘Y’. In fact, the Respondent and his wife have

been taking utmost care of ‘Y’ and treating her as their own daughter and the

welfare of the child would be better secured if the child remains in the custody

of the Respondent. On the contrary, if the custody and the residence of the

child is disturbed, the child will suffer great emotional trauma and would be

completely displaced as she has been in the custody of the Respondent since

she was only one month and 22 days old.

4. The learned District Judge heard the parties and also interviewed the

child 'Y'. Thereafter the learned District Judge, by the impugned order, was

persuaded to reject the application observing, inter alia, that the welfare of the

child was the paramount consideration and, in the facts of the case, the

welfare of the child would not be promoted by disturbing the custody of the

child during the pendency of the main application for custody. The learned

District Judge took note of the fact that the child 'Y' has been residing with the

Respondent since infancy, and during the course of the interview, the child

even declined to recognize the Petitioners. Transfer of custody during the

pendency of the application, in the light of the preference indicated by the

child 'Y', in the opinion of the learned District Judge, would cause harm to the

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welfare and comfort of the child.

5.Being aggrieved, the Petitioners have preferred this petition. An

affidavit-in-reply has been filed on behalf of the Respondent. The Petitioners

have filed a further affidavit to bring on record the subsequent developments,

which, according to the Petitioners, bear upon the child's custody. In the wake

of the pleadings and the material on record, including the documents filed on

behalf of the parties to substantiate their respective contentions, I have heard

Dr. Prashant Kayande, the learned Counsel for the Petitioners, and Mr. Samir

Pawar, the learned Counsel for the Respondent, extensively. This Court has

also interviewed the child.

6.Dr. Kayande submitted that, the custody of the Respondent is plainly

illegal and wrongful. The Respondent is not a relative of the child 'Y', much

less a guardian. The Respondent has no semblance of authority to retain the

custody of the child 'Y'. The status of the Respondent as a complete stranger

qua the child 'Y', makes a significant difference as the principles which govern

the grant of custody where the parents or one of the parents and the maternal

relatives of the child are at loggerheads do not apply.

7.Secondly, Dr. Kayande would urge, the circumstances in which the

temporary custody of the child was entrusted to the Respondent and his wife

cannot be lost sight of. It was an act of generosity on the part of the

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Petitioners to give temporary custody of the child to the Respondent and his

wife as they were childless. The Respondent has, on the other hand, abused

the trust and confidence reposed by the Petitioners in the Respondent, in

good faith.

8.Dr. Karande further submitted that, the theory of the Petitioners that the

child 'Y' was given in adoption has no legs to stand. Neither the Respondents

have pleaded the particulars of the adoption ceremony with reference to date,

time, and place, nor there is any other evidence to show the giving and taking

of the child. The claim of the Respondent is thus in teeth of the provisions of

Hindu Minority and Guardianship Act, 1956. And, therefore, even at an interim

stage, the case sought to be put-forth by the Respondent deserves to be

firmly rejected.

9.Dr. Kayande laid emphasis on the fact that the Petitioners, who are the

natural guardians, cannot be deprived of the custody of the child, especially

when the Respondent is an utter stranger. The High Court, in exercise of its

writ jurisdiction under Articles 226 and 227 of the Constitution of India, is

empowered to issue a writ to transfer the custody of child dehors the

proceedings under the Guardians and Wards Act. To buttress this submission,

Dr. Kayande placed a very strong reliance on the decision of the Supreme

Court in the case of Tejaswini Gaud and others vs. Shekhar Jagdish

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Prasad Tewari and others

1

and a judgment of this Court in the case of

Rakesh Tulsidas Rathod vs. Jayraj Vishram Vapikar and others

2

10.Dr. Kayande further submitted that the conduct of the Respondent, as

borne out by the record, also disentitles the Respondent to retain the custody

of the child. The Respondent has resorted to fabrication of the record and

made false declarations to show that the Respondent and his wife are the

parents/guardians of the child ‘Y’. Surreptitiously, the Respondent enrolled the

child in a preschool under a false name of “Ovi Anil Raghav”. The

Respondent, thereafter, even forged the record to obtain an AADHAR

enrollment of the child by making false declarations. In the record of the

school in which the child ‘Y’ is currently admitted under her real name also,

the name of the wife of the Respondent is fraudulently shown as the child’s

mother. These fraudulent acts on the part of the Respondent completely

disentitle the Respondent from retaining the custody of the child.

11.Dr. Kayande further submitted that the expression "welfare" is not

confined to material and financial welfare. It is a broad and encompassing

concept. Welfare also includes the moral and ethical welfare of the child. The

situation in life of the Respondent, the surroundings in which the Respondent

lives, and the acts and conduct of the Respondent are extremely detrimental

1(2019) 7 SCC 42.

2Criminal WP/579/2021 dated 1/2/2022.

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to the moral and ethical welfare of the child. To buttress this submission, Dr.

Kayande placed reliance on a judgment of the Madras High Court in the case

of N. Nirmala vs. Nelson Jayakumar

3

.

12.Dr. Kayande submitted that the learned District Judge was unduly

swayed by the preference indicated by the child ‘Y’. Amplifying the

submission, Dr. Kayande would urge while appreciating the preference

indicated by the child, the aspects of the child being in the custody of the

Respondent since a very young age and the Respondent being in a position

to poison the mind of the child qua the Petitioners, were required to be kept in

view. The preference indicated by a child of a tender and impressionable age

cannot be construed as an intelligent preference. Therefore, Dr Kayande

would urge, the learned District Judge grossly erred in giving undue weight to

the preference purportedly expressed by the child. In the same vein, Dr.

Kayande appealled to this Court as well that much significance need not be

given to the impression that this Court might have gathered upon interaction

with the child ‘Y’.

13.In order to lend support to the submission that a child of tender age is

not equipped to make intelligent preference, Dr. Kayande placed reliance on

the judgments of the Madras High Court in the cases of Venkatarama

3(1999) 1 DMC 737.

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Ayyangar Vs Thulasi

4

and S Rama Iyer Vs K. V. Nataraja Iyer.

5

14.Lastly it was submitted that, though the Petition assails an interim order

passed by the learned District Judge in an Application under Section 12 of th

Guardians and Wards Act, yet, in the peculiar facts of the case, this Court in

exercise of its extraordinary jurisdiction would be justified in passing an order

for transfer of the custody of the child ‘Y’.

15.Per contra, Mr. Pawar, the learned Counsel for the Respondent stoutly

supported the impugned order. First and foremost, Mr. Pawar would urge the

grant of prayer in the Interim Application would amount to allowing the

Application for custody as the prayers in main Application and the Interim

Application are identical. It would thus amount to granting a final relief at an

interim stage without examining the relative merits of contentions of the

parties.

16.Secondly, Mr. Pawar would urge, the material on record unmistakably

indicates that the child ‘Y’ was given in adoption while she was barely one and

half month of age. Though the Petitioners have made an endeavour to

progressively improve upon their case, yet, notice issued by the Petitioners on

29 June 2019 clearly reveals that not only the child ‘Y’ was given in custody of

the Respondent during her infancy but even the Petitioners had shared the

4 (AIR 1950 Madras 320.

5AIR 1948 Madras 294.

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documents with the Respondent for securing the admission of child in the

school. The contention of the Petitioners that the child ‘Y’ was given in the

custody of the Respondent for a temporary period is belied by the material on

record and the time that was allowed to pass by. It was only after four and half

years, the Petitioners started raising grievances regarding the custody of the

child ‘Y’.

17.Under no circumstances, Mr. Pawar would urge, can it be said that the

custody of the child with the Respondent and his wife is wrongful or illegal. On

the contrary, the material on record indicates that the Petitioners had

voluntarily given the child ‘Y’ in adoption and resiled from their promises to

execute the documents. Mr Pawar laid stress on the fact that it was the

Petitioners who put hindrances in the educational prospects of the child ‘Y’ by

addressing letters to the schools in which the Respondent had secured the

admission of the child in the year 2019.

18.Mr. Pawar further submitted that while considering an application under

Section 12 of the Guardians and Wards Act, the question of the impact of

abrupt change in the custody on the mind of the child was required to be

considered and the learned District Judge has rightly observed that the

change in the custody during the pendency of the main Application would

cause immense harm and discomfort to the child.

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19.To buttress the aforesaid submissions, Mr. Pawar placed strong

reliance on the judgment of the Supreme Court in the case of Athar Hussain

Vs Syed Siraj Ahmed & Ors

6

and the Division Bench judgment of the

Calcutta High Court in the case of Tarun Ranjan Majumdar & Anr Vs

Siddhartha Datt

7

and a judgment of a learned Singh Judge of the Delhi High

Court in the case of Ruchika Bindra Vs Harvinder Singh Bindra.

8

20.Mr. Pawar countered the submissions of Dr Kayande that the wishes of

the child do not deserve significance while deciding the aspect of interim

custody, by canvassing a submission that, when the child is in a position to

make an intelligent preference, the Court must have due regard to the wishes

of the child. In the case at hand, Mr. Pawar would urge, the child was

interviewed by the learned District Judge when she was about eight years of

age. The child ‘Y’ has indicated her preference in clear and unequivocal

terms. The child even did not recognize the parents. Now the child is more

than 11 years of age. The child has all along been in the custody of the

Respondent since a month of her birth. In this backdrop, the learned District

Judge was fully justified in taking into account the wishes of the child.

21.Mr. Pawar would urge nothing could be brought on record to

demonstrate that the Respondent and his wife are otherwise unsuitable.

6(2010) 2 SCC 54.

7AIR 1991 Calcutta 76.

82010 SCC OnLine Del 917.

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Thus, the submissions on behalf of the Petitioners premised on the fact that

they are the biological parents of the child ‘Y’ do not merit acceptance while

considering the aspect of the custody of the child ‘Y’. In order to lend support

to this submission, Mr. Pawar placed reliance on the judgment of the

Supreme Court in the case of Somprabha Rana & Ors Vs State of Madhya

Pradesh and Ors,

9

wherein the principles were culled out by the Supreme

Court.

22.I have given anxious consideration to the aforesaid rival submissions

canvassed across the bar.

23.To start with few uncontroverted facts. Firstly, the fact that the

Petitioners are the biological parents of the child ‘Y’ is not in issue. The child

was born to the Petitioners on 1

st

December 2014. Secondly, nor the fact that

the child ‘Y’ was the third daughter of the Petitioners in contest. Thirdly, the

Petitioners and the Respondent had a thick bond. Both were residing in the

same neighbourhood. Both were employed with the same company. Fourthly,

it is not the case that the Respondent is the relative of the Petitioners. Fifthly,

the factum of custody of child ‘Y’ with the Respondent and his wife since the

infancy of the child is not much in dispute. Sixthly, the disputes between the

parties appear to have started in the year 2019, purportedly over the

admission of child ‘Y’ in pre-school.

9(2024) 9 SCC 382.

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24.The parties are at issues over the circumstances in which the

Respondent came in the custody of the child ‘Y’. The exact date of such

transfer of custody, the nature of the custody; whether exclusive, permanent

or temporary, and the character of such custody in the context of the

contention of the Respondent that the child ‘Y’ was given in adoption.

25.It would contextually relevant to note at this stage itself that in the

notice dated 29 June 2019, the Petitioners have claimed that since February

2015, the child ‘Y’ was given in the temporary custody of the Respondent. In

contrast, the Respondent contends that, the child was given in adoption on

23

rd

January 2015. Thus, it prima facie emerges that, the child has been in the

custody of the Respondent since she was barely two months of age.

26.In the light of the aforesaid broad and rather uncontroverted facts, the

submissions canvassed on behalf of the parties deserve to be appreciated.

Evidently, as the Respondent did not accede to the demand of the Petitioners

to deliver the custody of the child, the Petitioners preferred an Application

under Section 25 of the GW Act, 1890, for the custody of the child before the

District Court, in the year 2019.

General Principles :

27.At this juncture, the text of the provisions contained in Section 25(1) of

the GW Act, 1890, deserves to be noted. It read as under:—

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“25.Title of guardian to custody of a ward.— (1) If a ward

leaves or is removed from the custody of a guardian of his

person, the Court, it it is of opinion that it will be for the welfare

of the ward to return to the custody of his guardian, may make

an order for his return, and for the purpose of enforcing the

order, may cause the ward to be arrested and to be delivered

into the custody of the guardian.”

28.From the phraseology of the aforesaid Section, it becomes explicitly

clear that the Court is empowered to make an order for return of a ward who

leaves or is removed from the custody of the guardian of his person, only

when it forms an opinion that it will be for the welfare of the ward to return to

the custody of his guardian. Thus the exercise of the jurisdiction under

Section 25 is conditioned by the formation of the opinion that, it is the welfare

of the child which warrants the return of the child to the guardian. Thus, the

emphasis is more on the welfare of the child rather than the legal right of the

guardian to have the custody of the child restored. The necessary corollary is

that, the fact that the person in whose custody the child is has no legal right to

retain the custody of the child, though not completely irrelevant, is not of

decisive significance. Therefore, while deciding the question of proper

custody of the child the principle is well ingrained that the welfare of the child

is of paramount consideration.

29.Section 12 of the GW Act, 1890 vests discretion in the Court to make

an order for the temporary custody and protection of the person or property of

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the minor as the Court may thinks proper. The provisions contained in Section

12 of the GW Act, 1890, find their practical utility when an Application is filed

under Section 25 of the GW Act, 1890, seeking the custody of the child.

30.In the backdrop of the aforesaid elementary provisions, the pivotal

question that wrenches to the fore is whether the learned District Judge

correctly exercised the discretion to decline the prayer of the Petitioners to

grant interim custody of the child ‘Y’ during the pendency of the Application

under Section 25 of the GW Act, 1890.

31.As noted above, the instant case stands on a different footing in the

sense that the contest for custody of the child ‘Y’ is not between the parents

or one of the parents and the relatives of the other, which is usually the fact-

situation in the custody dispute.

32.In the case at hand the Respondent claims that the child ‘Y’ was given

in adoption while she was barely one and half months of age. It would be

contextually relevant to note that the purported adoption ceremony is not

evidenced by any document. The Respondent claims that the Petitioners had

agreed to execute the document and latter on reneged from their promise.

33.Dr Kayande would urge the alleged adoption is a ruse. In the absence

of any evidence to prima facie support the claim of adoption, the Respondent

has no semblance of any right or authority to retain the custody of the child

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which was given as a temporary measure in good faith. Therefore, the

principle that welfare of the child is paramount consideration may not govern

the facts of the case with full rigour.

34.The distinction sought to be drawn by Dr Kayande in the cases where

the custody of the child is sought by one parent from another parent and the

cases where the custody of the child is sought by the parent from a person

who is not the parent / lawful guardian, in the matter of application of the

principle of paramountcy of the welfare of the child, cannot be acceded to

unreservedly. Even in a case where the custody of a child is sought from the

person who is not a parent / lawful guardian, the question of interest and

welfare of the child is required to be carefully examined as the Court

exercises a parens patriae jurisdiction. The proposition that in the matter of

determination of the issue of custody of child, it is not the right of the parties

but welfare of the child, that is of determinative significance, applies also in a

case where the person having the custody of the child is neither a parent nor

a lawful guardian.

35. A situation may be conceived that there may be qualitative difference in

the degree of application of the principle, to the facts of the given case.

However, it cannot be urged that, the principle of paramountcy of the welfare

of the child has no play.

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36. As noted above, the language of the text of Section 25 incorporates the

consideration of the welfare of the child in express terms. Even in the case of

Tejaswini Gaud and others (Supra), on which reliance was placed by Dr

Kayande, the Supreme Court reiterated that while deciding the child custody

cases the Court is not bound by the legal right of the parent or guardian and

the paramount consideration ought to be interest or welfare of the child. The

observations in paragraphs 26 and 34 are instructive and hence extracted

below :

“Welfare of the minor child is the paramount consideration:-

26. The court while deciding the child custody cases is not

bound by the mere legal right of the parent or guardian. Though

the provisions of the special statutes govern the rights of the

parents or guardians, but the welfare of the minor is the

supreme consideration in cases concerning custody of the

minor child. The paramount consideration for the court ought to

be child interest and welfare of the child.

… … …

34. As observed in Rosy Jacob11 earlier, the father's fitness

has to be considered, determined and weighed predominantly in

terms of the welfare of his minor children in the context of all the

relevant circumstances. The welfare of the child shall include

various factors like ethical upbringing, economic well-being of

the guardian, child's ordinary comfort, contentment, health,

education etc. The child Shikha lost her mother when she was

just fourteen months and is now being deprived from the love of

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her father for no valid reason. As pointed out by the High Court,

the father is a highly educated person and is working in a

reputed position. His economic condition is stable.”

37. What constitutes, “welfare” of the child ? The expression ‘welfare’ is of

wide and expansive connotation. ‘Welfare’ cannot be confined only to the

physical comfort and well being of the child. Nor can the ‘welfare’ be judged

from the perspective of the materialistic possessions, financial capacity and

the resources of the persons seeking the custody of the child. ‘Welfare’, in its

true sense, includes emotional, ethical, intellectual and overall holistic

development of the child.

38.In the case of Gaurav Nagpal vs. Sumedha Nagpal,

10

the Supreme

Court exposited the connotation of the term, “welfare” as under:

“43. The word `welfare' used in Section 13 of the Act has to

be construed literally and must be taken in its widest sense.

The moral and ethical welfare of the child must also weigh

with the Court as well as its physical well being. Though the

provisions of the special statutes which govern the rights of

the parents or guardians may be taken into consideration,

there is nothing which can stand in the way of the Court

exercising its parens patriae jurisdiction arising in such

cases.”

(emphasis supplied)

39.In the case of Nil Ratan Kundu and anr. vs. Abhijit Kundu,

11

the

10AIR 2009 SC 557.

11(2008) 9 SC 413.

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considerations that weigh with the Court in the determination of the proper

custody of a child were instructively enunciated by the Supreme Court as

under:

“……..In selecting proper guardian of a minor, the paramount

consideration should be the welfare and well-being of the

child. In selecting a guardian, the Court is exercising parens

patriae jurisdiction and is expected, nay bound, to give due

weight to a child's ordinary comfort, contentment, health,

education, intellectual development and favourable

surroundings. But over and above physical comforts, moral

and ethical values cannot be ignored. They are equally, or

we may say, even more important, essential and

indispensable considerations . If the minor is old enough to

form an intelligent preference or judgment, the Court must

consider such preference as well, though the final decision

should rest with the Court as to what is conducive to the

welfare of the minor.” (emphasis supplied)

40. In the case of Dhanwanti Joshi Vs Madhav Unde,

12

the Supreme

Court emphasised that the moral and religious welfare must also be

considered alongwith the physical well-being of the child. The word ‘welfare’

must be taken in its widest sense.

“22. … … …

… the welfare of the child is not to be measured by money

alone nor by physical comfort only. The word 'welfare' must

12I (1998) DMC 1 (SC).

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be taken in its wides sense. The moral and religious welfare

must be considered as well as its physical well-being. Nor

can the ties of affection be disregarded.” (emphasis supplied)

41.In the case of Rakesh Tulsidas Rathod (Supra), pressed into service

by Dr. Kayande, after adverting to the judgments which exposit the concept of

the welfare of the child, this Court had observed as under:

“42.Welfare of the minor is thus a broad and elastic

expression. Every factor which bears upon the overall

development of the child needs to be given due weight. The

approach of the Court in ascertaining and determining the

welfare of the minor ought to be well informed and

pragmatic. It is thus said that the Court is called upon to deal

with a human problem with a humane touch.”

42. At this juncture, it is necessary to note that the learned District Judge

on the basis of the interview of the child observed that the child ‘Y’ had

expressed complete disinclination to join the company of the Petitioners. The

child even refused to recognize the Petitioners. Before this Court as well, the

child ‘Y’ demonstrated complete indifference towards the Petitioners. This

Court could perceive that there was a feeling of animosity towards the

Petitioners, probably on account of the quarrels that had ensued between the

Petitioners and the Respondent over the custody of the child and the attempts

on the parts of the Petitioners to take the child away from the Respondent. It

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could be a learned trait. The influence of the Respondent and his wife on the

behaviour of, and articulation of choice by, the child “Y’, cannot be totally

discounted. Nonetheless, it is a fact that the child expressed total

disinclination to part with the company of the Respondent and his wife and

join the Petitioners.

43.It is well recognized that where the child is old enough to form an

intelligent preference, the Court must consider such preference as well

though that preference cannot be decisive. Ultimately, the Court must decide

the matter on the principle of paramountcy of the welfare of the child. Thus,

the reliance by Dr. Kayande on the judgments in the cases of Venkatarama

Ayyangar (Supra) and S Rama Iyer (Supra) to bolster up the submission

that a child of tender and impressionable age cannot form an intelligent

preference, is required to be appreciated in the light of the the aforesaid

principles.

Grant of Interim Custody :

44.The preliminary objection on behalf of the Respondent that the grant of

the interim relief under Section 12 of the GW Act, 1890 would amount to

granting the final relief at an interim stage, need not detain the Court. If the

Court is satisfied that even during the pendency of the Application for custody

under Section 25 of the GW Act, 1890, the dictate of welfare of the child

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commands the transfer of the custody of child ‘Y’ to the Petitioners, the

objection that it amounts to virtually granting the final relief at an interim stage

pales in significance as general principle that ordinarily final relief cannot be

granted at an interim stage cannot override the paramount consideration of

the welfare of the child.

45.At the same time, the Court has to bear in mind the principles that

govern a prayer for interim custody of the child. Whether the transfer of

custody at an interim stage would promote the welfare of child? Would it be

conducive for or impede the development of the child? Whether the transfer of

the custody would have an adverse impact on the state of mind and

psychological well-being of the child ? Are there sufficient and compelling

reasons to transfer the custody of the child during the pendency of the

Application for the permanent custody? These are the questions which the

Court may be required to pose unto itself while determining the aspect of

interim custody.

46.In the case of Athar Hussain (Supra), on which reliance was placed by

Mr. Pawar, the Supreme Court emphasies that while deciding the question of

interim custody the Court must be guided by the welfare of the child since

Section 12 empowers the Court to make an order as it deems fit. The Court

must determine whether there are sufficient and compelling reasons to

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persuade the Court to change the custody of the minor child with immediate

effect. Stability and consistency in the affairs and routines of children is also

an important consideration.

47.The observations of the Supreme Court in paragraphs 30, 36 and 37

are material. They read as under:

“30.Reasons are as follows: Section 12 of the Act empowers

courts to "make such order for the temporary custody and

protection of the person or property of the minor as it thinks

proper." (emphasis supplied). In matters of custody, as well

settled by judicial precedents, welfare of the children is the sole

and single yardstick by which the Court shall assess the

comparative merit of the parties contesting for custody.

Therefore, while deciding the question of interim custody, we

must be guided by the welfare of the children since Section 12

empowers the Court to make any order as it deems proper.

… … …

36.The appellant placed reliance on the case of R. V. Srinath

Prasad V Nandamuri Jayakrishna (2001) 4 SCC 71. This Court

had observed in this decision 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. In that

decision, while granting interim custody to the father as against

the maternal grandparents, this Court held :

“10. ….The Division Bench appears to have lost sight of the

factual position that the time of death of their mother the children

were left in custody of their paternal grand parents with whom

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their father is staying and the attempt of the respondent no.1 was

to alter that position before the application filed by them is

considered by the Family Court. For this purpose it was very

relevant to consider whether leaving the minor children in

custody of their father till the Family Court decides the matter

would be so detrimental to the interest of the minors that their

custody should be changed forthwith. The observations that the

father is facing a criminal case, that he mostly resides in USA

and that it is alleged that he is having an affair with another lady

are, in our view, not sufficient to come to the conclusion that

custody of the minors should be changed immediately."

(emphasis supplied)

What is important for us to note from these observations is that

the Court shall determine whether, in proceedings relating to

interim custody, there are sufficient and compelling reasons to

persuade the Court to change the custody of the minor children

with immediate effect.

37.S tability and consistency in the affairs and routines of

children is also an important consideration as was held by this

Court in another decision cited by the learned counsel for the

appellant in the case of Mausami Moitra Ganguli Vs Jayant

Ganguli (2008) 7 SCC 673. This Court held :

“24. … … … We are convinced that the dislocation of Satyajeet,

at this stage, from Allahabad, where he has grown up in

sufficiently good surroundings, would not only impede his

schooling, it may also cause emotional strain and depression on

him."

After taking note of the marked reluctance on part of the boy to

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live with his mother, the Court further observed :

“26. Under these circumstances and bearing in mind the

paramount consideration of the welfare of the child, we are

convinced that child's interest and welfare will be best served if

he continues to be in the custody of the father. In our opinion, for

the present, it is not desirable to disturb the custody of Master

Satyajeet and, therefore, the order of the High Court giving his

exclusive custody to the father with visitation rights to the mother

deserves to be maintained." (emphasis supplied)”

Prima facie appraisal of facts :

48.On the aforesaid touchstone reverting to the facts of the case, the

following factors, in the considered view of this Court, are of critical salience.

49.First, the age at which the child ‘Y’ came in the custody of the

Respondent. Even if the case of the Petitioners, as narrated in the pre-

application notice is taken at par, the Respondent and his wife came in the

custody of the child in the month of February 2015, while the child was barely

two moths of age. For the child, the Respondent and his wife were the

parents since infancy. Prima facie, the child has not seen, perceived and

understood the Petitioners as her parents. The extreme reluctance of the child

‘Y’ to acknowledge and join the Petitioners probably stems from this

understanding of the child as to who her parents are.

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50.Secondly, the initial custody of two months old child with the

Respondent was not wrongful or surreptitious. Prima facie it appears the initial

transfer of the custody was voluntary and there was no dispute till the child

grew up to the age of being enrolled in a pre-school. In the pre-application

notice the Petitioners have asserted that Petitioner No.1 had delivered the

documents to the Respondent to facilitate the admission of the child in a pre-

school. The disputes seem to have started when the Respondent admitted

the child in the pre-school under the name “Ovi Anil Ravhav”

51. Thirdly, a period of almost four and half years had passed by the time

the Petitioners started raising objections and addressed letters to the school

authorities, culminating in the cancellation of the admission. Prima facie, for

almost four and half years, in the least, the child ‘Y’ had an impression that,

the Respondent and his wife were her parents.

52.When this Court interviewed the child, she stated that she was studying

in 4

th

standard. Though the child was young, she appeared to be certain

about the preference she was making. Although the wishes of the child are

not decisive, yet, her wishes cannot be brushed aside completely as

immaterial or inconsequential. The aspect of the stability in the life and affairs

of the child from the perspective of her surroundings, school, persons whom

the child considers near and dear assume importance when the Court is

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called upon to deal with the prayer for transfer of custody of the child,

especially at an interim stage.

53.Prima facie, this Court is of the view that the extreme position taken by

the parties resulted in the loss of education of the child. It seems that the

admissions taken by the Respondent in Little Angle Nursery School, Kalyan

and Don Bosco School were cancelled in view of the objections raised by the

Petitioner No.1. Conversely, the Petitioners claimed, in the year 2023, the

Respondent enrolled the child in Narayani School by forging documents and

making false declarations. The veracity of these allegations and counter-

allegations is required to be adjudicated post recording of evidence in the

main application, as in the pre-application notice, it was asserted by the

Petitioners that the Petitioners had delivered a true copy of the birth certificate

of the child to the Respondent to secure admission of the child in the school.

Approach of the Court :

54.In the backdrop of the aforesaid facts, which prima facie emerge, the

approach expected of the Court in deciding the application for custody,

especially when the child has been in the custody of the person, who is ex-

facie not the biological parent or guardian, deserves to be kept in view.

Ordinarily, the following factors weigh with the Court in such a case. First, the

age since which the child has been in the custody of the person who is not the

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biological parent/guardian, the length of time for which the child has been in

custody of such person, the age of the child at the time the Court is called

upon to make the decision, the wishes of the child where she in a position to

convey her preference in a clear terms. Lastly, the element of stability in the

life and affairs of the child.

55.In Somprabha Rana and Ors. (supra), the child was two years and 7

months of age. After the death of the mother in unnatural circumstances, the

sisters of the mother took way the minor child allegedly without the consent of

the father. The High Court had allowed the writ of habeas corpus directing the

Appellants / sisters of the mother to hand over the custody of the child to her

father. The Supreme Court considered the question whether the High Court

was justified in disturbing the custody of the child whose age was one year

and five months at the time of passing the judgment by the High Court. The

Supreme Court culled out the broad propositions of law governing the custody

matters, as under :

“9.1Writ of habeas corpus is a prerogative writ. It is an

extraordinary remedy. It is a discretionary remedy;

9.2The High Court always has the discretion not to

exercise the writ jurisdiction depending upon the facts of the

case. It all depends on the facts of individual cases;

9.3.Even if the High Court, in a petition of habeas corpus,

finds that custody of the child by the respondents was illegal, in

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a given case, the High Court can decline to exercise

jurisdiction under Article 226 of the Constitution of India if the

High Court is of the view that at the stage at which the habeas

corpus was sought, it will not be in the welfare and interests of

the minor to disturb his/her custody; and

9.4As far as the decision regarding custody of the minor

children is concerned, the only paramount consideration is the

welfare of the minor. The parties’ rights cannot be allowed to

override the child’s welfare. This principle also applies to a

petition seeking habeas corpus concerning a minor.”

56. Thereafter, the Supreme Court, in the facts of the said case, observed

that, the High Court was dealing with the custody of the child whose age at

that time was one year and five months. The child has been in the custody of

the parents from the tender age of 11 months after her mother died. The

child, when the Supreme Court passed the order, had been in the custody of

the appellants for more than one and a half years. When the Court deals with

the issue of Habeas Corpus regarding a minor, the Court cannot treat the

child as a movable property and transfer custody without even considering the

impact of the disturbance of the custody on the child. Such issues cannot be

decided mechanically. The Court has to act based on humanitarian

considerations and the Court cannot ignore that it is exercising a parens

patriea jurisdiction. The Supreme Court emphasised that the Court under the

GW Act, 1890, would be the appropriate Court to decide the issue of child

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custody and guardianship. The observations in paragraph No.13 read as

under :

“13.We believe that considering the peculiar facts of the

case and the child's tender age, this is not a case where

custody of the child can be disturbed in a petition under

Article 226 of the Constitution of India. Only in substantive

proceedings under the GW Act can the appropriate Court

decide the issue of the child custody and guardianship.

Regular Civil/Family Court dealing with child custody cases

is in an advantageous position. The Court can frequently

interact with the child. Practically, all Family Courts have a

child centre/play area. A child can be brought to the play

centre, where the judicial officer can interact with the child.

Access can be given to the parties to meet the child at the

same place. Moreover, the Court dealing with custody

matters can record evidence. The Court can appoint experts

to make the psychological assessment of the child. If an

access is required to be given to one of the parties to meet

the child, the Civil Court or Family Court is in a better

position to monitor the same.” (emphasis supplied)

57.With regard to the impact of the transfer of the custody on the child, the

Supreme Court emphasised that, the child had not seen the father and

grandparents for over a year and if the custody of the child was immediately

transferred to the father and grandparents at the tender age of two years and

seven months, the child will become miserable as the child has not met them

for a considerably long time.

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58.In the case of Nirmala V/s. Kulwant Singh and Ors.

13

, where the child

was in the custody of the maternal grandparents since the father had placed

the child in the custody of the grandmother, the Supreme Court observed that,

it cannot be said that the grandmother had illegally kept the custody of the

minor child. C ompelling a minor child at the tender age of 7 years to withdraw

from the custody of his grandparents with whom he has been living for the last

about 5 years may cause psychological disturbances. Thus, an exercise for

promoting the bond between the minor child and the respondent-father in a

graded manner and thereafter considering the grant of custody of minor child

to the respondent-father taking into consideration the paramount interest of

the welfare of the minor child would be required to be done in the present

matter. Such an exercise would not be permissible in the extraordinary

jurisdiction under Article 226 of the Constitution of India.

59.In the case of Shazia Aman Khan and Anr. V/s. State of Orissa and

Ors.

14

, wherein the child was 14 years of age and had been living since birth

with the persons who were not her biological parents and natural guardians

and the High Court had directed the transfer of the custody of the child to the

father, the Supreme Court while setting aside the order of the High Court

reiterated the pristine principle that, in deciding a difficult and complex

question as to custody of minor, a Court of law should keep in mind relevant

13(2024) 10 SCC 595

14(2024) 7 SCC 564

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statutes and the rights flowing therefrom. But such cases cannot be decided

solely by interpreting legal provisions. The welfare of the child is of paramount

consideration and not personal law and statute. The Supreme Court adverted

to the precedents which make the wish of the child a relevant consideration in

the matter of custody of the child. Referring to the interaction the Hon’ble

Judges had with the child, keeping in view her age, and the capacity to form

an opinion in regard to her welfare and custody and the fact that the child was

quite categoric in that regard, when the Court interacted with her, the

Supreme Court emphasised that, the child cannot be treated as a chattel at

the age of 14 years to hand over her custody to the father, where she has not

lived ever since her birth. Stability of the child was also of paramount

consideration.

60.In the case of Roshan Lal and Anr. V/s. Gautam Khanna and Ors.

15

,

where the children then aged 7 and five years, were in the custody of the

Petitioners and the High Court had directed that the custody of the children

shall be handed over to their father, the Supreme Court again reiterated that

the issue of custody of minor children cannot be decided on the basis of rights

claimed by the rival parties and the only paramount consideration is the

welfare of the children. The Supreme Court, inter alia, observed as under :

“4. Looking to the tender age of the children and

15SLP(Cri) No.5229 of 2022 dt. 12-09-2023

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looking to the fact that at least from November, 2021,

the children are with the Petitioners, we are of the view

that the issue of welfare of the children should be best

left to be decided by the Competent Family Court in the

pending Custody Petition and it will not be proper at

this stage to disturb the custody of the children.”

61.It is true, this Court in exercise of its plenary writ jurisdiction can direct

the transfer of custody. Yet, this Court needs to be alive to the fact that the

Court under the GW Act, 1890, is better equipped to carry out the exercise of

determining the welfare of the child as such Court would have the benefit of

interaction with the child at various stages, assistance of the expert

psychologist (if found necessary), and can supervise the visitation of the non-

custodial parents to foster the development of the bond, trust and confidence

between such parents and the child and that would eventually ensure the

stability of the child.

62.Applying the aforesaid principles to the facts of the case at hand, this

Court is of the considered view that the transfer of the interim custody of the

child ‘Y’ , at this stage, would not promote the welfare of the child for reasons

more than one. Firstly, the child ‘Y’ has been in the custody of the

Respondent since she was barely two months of age. Secondly, since

infancy the child ‘Y’ has considered the Respondent and his wife as her

parents. Thirdly, the initial entrustment of the custody of the child ‘Y’, prima

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facie, appeared to be voluntarily. Fourthly, the custody of the child ‘Y’ with the

Respondent appeared to be without any objection, at least till four and half

years from the delivery of the custody. Fifthly, by the passage of period of

almost 10 years, the child ‘Y’ finds herself comfortable in the company of the

Respondent and his wife. Sixthly, the child ‘Y’ has made her preference

explicitly clear. Seventhly, the element of stability in the life and affairs of the

child ‘Y’ and continuity in the routine of child ‘Y’ would be seriously affected if

the interim custody is transferred to the Petitioners. Eighthly, prima facie,

there is an imminent risk of such abrupt transfer affecting the psychological

well-being of the child ‘Y’.

63.Undoubtedly, the Court under the GW Act, 1890 would be entitled to

pass a final order under Section 25 of the Act, 1890, after having the resume

of all the facts, which bear upon the aspect of the proper custody of the child

‘Y’ on the touchstone of her paramount welfare after the parties adduce

evidence. All the questions including the justifiability of the claim of the

Respondent that he and his wife are the adoptive parents of the child ‘Y’ as

she was given in adoption on 23 January 2015, would be open for

adjudication before the Court under the GW Act, 1890. The Court can on the

basis of the evidence evaluate whether the continuance of custody of the

child with the Respondent is detrimental to the welfare of the child. The

proper course, in a situation of the present nature, may be to request the

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learned District Judge to hear and finally decide the application in a time

frame.

64.At the same time, in view of the acrimony that has developed between

the Petitioners and the Respondent, the order passed by the learned District

Judge, directing the Respondent to provide access to the child ‘Y’ twice a

week, cannot be implemented, unless further directions are issued. It is,

therefore, necessary to pass directions to ensure that the Petitioners have

access to child ‘Y’.

65.The conspectus of aforesaid consideration is that the Petition deserves

to be dismissed, with directions for expeditious disposal of the Application

under Section 25 of the GW Act, 1890 and for access of the child ‘Y’.

66.Before parting, it must be clarified that, this Court considered it in the

fitness of things to delve into the matter in a little detail, in the backdrop of the

peculiar facts of the case. Yet none of the observations in this order to the

extent they bear upon the facts of the case and relative merits of the claim of

the parties, shall influence the trial Court. By way of abundant caution, it is

clarified that this Court was considering the issue of transfer of interim

custody of child ‘Y’, and, these observations will not bear upon the

determination of the application for permanent custody under Section 25 of

the GW Act, 1890, on its own merits and in accordance with law. All

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contentions of both the parties are expressly kept open for adjudication at the

final decision of the main application.

67.Hence, the following order :

ORDER

(i)The Writ Petition stands dismissed.

(ii)Learned District Judge, Kalyan, seized with M.A.No.85 of 2019 is

requested to hear and finally decide the same, as expeditiously as possible,

and preferably within a period of six months from 8 September 2026.

(iii)The parties shall appear before the learned District Judge,

Kalyan, on 8 September 2026.

(iv)The parties shall cooperate with the learned District Judge,

Kalyan, in the expeditious disposal of M.A.No.85 of 2019 and shall not seek

unnecessary adjournments.

(v)Till the decision of M.A.No.85 of 2019, the Petitioners shall have

access to the child ‘Y’ on every Friday and Saturday at the place to be

decided by the learned District Judge, Kalyan, either within the precincts of

the District Court, Kalyan, or beyond, for three hours, either in the morning or

evening, as the learned District judge may specify.

(vi)The parties shall be at liberty to approach the learned District

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Judge for modification of the aforesaid arrangement of access to the child ‘Y’.

(vii)Rule discharged.

(viii)No costs.

( N.J.JAMADAR, J. )

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