Bombay High Court
Tejal W/O Akshay Chaudhari vs The State Of Maharashtra And Others on 20 August, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:22677-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2071 OF 2024
Tejal w/o Akshay Chaudhari,
Age 23 yrs., Occ. Household,
R/o C/o Ramesh Raghunath Mahajan,
At Kerhale (Bk), Tq. Raver,
Dist. Jalgaon.
... Petitioner
... Versus ...
1 The State of Maharashtra
Through Superintendent of Police,
Office of Superintendent of Police,
Jalgaon, Tq. & Dist. Jalgaon.
2 The In-charge Police Officer,
Police Station, Muktainagar,
Tq. Muktainagar, Dist. Jalgaon.
3 The In-charge Police Officer,
Police Station, Raver,
Tq. Raver, Dist. Jalgaon.
4 Akshay Vijay Chaudhari,
Age 30 yrs., Occ. Private Service
(IT Engineer),
R/o Ashtavinayak Colony,
Near Bus Stop, Muktainagar,
Tq. Muktainagar, Dist. Jalgaon.
... Respondents
...
Mr. S.R. Andhale, Advocate for petitioner
Mr. N.R. Dayama, APP for respondent Nos.1 to 3
Mr. B.R. Kedar, Advocate for respondent No.4
2 Cri.WP_2071_2024
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
RESERVED ON : 01st AUGUST, 2025
PRONOUNCED ON : 20th AUGUST, 2025
JUDGMENT :
( PER : SMT. VIBHA KANKANWADI, J. )
1 Heard learned Advocate Mr. S.R. Andhale for petitioner, learned
APP Mr. N.R. Dayama for respondent Nos.1 to 3 and learned Advocate Mr.
B.R. Kedar for respondent No.4.
2 Rule. Rule made returnable forthwith. The writ petition is
heard finally with consent of both sides.
3 By invoking Article 21 and 226 of the Constitution of India the
petitioner – mother is praying for following reliefs :
“(B) By issuing writ of habeas corpus or any other writ, order or
directions in the like nature, the respondents No.1 to 3 may kindly be
directed to produce the child of petitioner namely Kartik s/o Akshay
Chaudhari before this Hon’ble High Court, in the interest of justice
and they may kindly be handed over the custody of the petitioner.
(C) By issuing writ of mandamus or any other writ, order or
directions in the like nature, the respondent No.1 may kindly be
3 Cri.WP_2071_2024directed to decide the representation dated 11.12.2024 filed by
petitioner and please to pass necessary orders in that regard.”
4 Learned Advocate appearing for petitioner submits that the fact
is not in dispute that petitioner and respondent No.4 are husband and wife.
They got married on 04.06.2021. They are blessed with son, who is now
aged 2 to 2½ years.
5 It is the petitioner’s contention that after a year of delivery she
began experiencing muscle problems in her right hand. She consulted a
doctor and it was diagnosed that she was suffering from Wet Gangrene of the
right upper limb along with subclavian vein and SVC thrombosis as well as
PTE. The doctors had recommended surgery and her right hand was
required to be amputated from the shoulder. After the surgery respondent
No.4 refused to cohabit with her due to her disability and since then she is
residing with her parents. Neither respondent No.4 nor in-laws had
attempted to contact her. Respondent No.4 has forcibly took custody of
minor child from petitioner. Petitioner has filed PWDVA No.89/2024 before
learned Judicial Magistrate First Class, Raver, Dist. Jalgaon. She had
demanded interim custody of her child as per the provisions of Section 23 of
the Protection of Women from Domestic Violence Act (for the sake of brevity
4 Cri.WP_2071_2024
hereinafter referred to as “the D.V. Act“). Notices were issued and in-laws of
petitioner had appeared, however, respondent No.4 intentionally avoided the
service. Considering the facts and circumstances learned Judicial Magistrate
First Class had allowed that application on 09.09.2024 and granted the
interim custody of child to petitioner. The Protection Officer had submitted
report to learned Magistrate, Raver on 11.09.2024 that when he had visited
the house of respondents – in-laws, at that time the child was not with them.
Respondents had not complied with directions given by learned Magistrate.
Even the Protection Officer when attempted to affix the notice on the house
of respondents, in-laws of petitioner restrained him. An application was then
filed by petitioner at Exh.21 on 03.12.2024 before learned Magistrate that
though respondent No.4 is residing in Muktainagar, he is avoiding Court
notice as well as handing over the child to her. In the application petitioner
had prayed for directions to be given to Raver Police to find out the child and
to hand over the custody to her. To the said application in-laws had filed
their say and after hearing both sides learned Magistrate had given directions
to Raver Police as well as Protection Officer to find the child and hand over
the custody to petitioner. Thereafter, Protection Officer, Raver filed report on
10.12.2024 before learned Magistrate that when he along with police had
gone to the house of respondent No.4 for execution of order on 03.12.2024,
they could not find respondent No.4 and child. Information was given by
5 Cri.WP_2071_2024
parents that respondent No.4 is residing in Mumbai, but refused to give full
address. The offence came to be registered on 10.12.2024 against parents
and close relatives of petitioner vide First Information Report bearing Crime
No.425/2024. The further proceedings has been taken by petitioner before
learned Magistrate, however, it has not yielded in getting the custody of
child. There is no compliance of order passed by learned Magistrate.
6 Learned Advocate for petitioner then submits that respondent
No.4 had challenged said order passed by learned Magistrate before this
Court by filing Criminal Revision Application No.109/2025. Hon’ble the
Single Bench of this Court by order dated 04.04.2025 dismissed the revision.
The order passed by this Court is then maintained before Hon’ble Supreme
Court also; yet, there is no compliance. A joint pursis was filed on behalf of
petitioner and respondent No.4 in view of the mediation and joint statement
was made that respondent No.4 and petitioner would stay together and
would continue their marital tie for the welfare of child. Thereafter, time to
time the matter was listed and statement was made that presently they are
residing together, however, petitioner was not given proper treatment. Child
is not allowed to remain in custody for a long period. She is mentally
harassed and then on 14.07.2025 when such statement was made, this Court
ultimately stated that the matter would then be decided on merits. Petitioner
6 Cri.WP_2071_2024
has been forced to go back to her parents’ home and again the custody is not
handed over to petitioner. Since petitioner is now handicapped, respondent
No.4 is not willing to cohabit with her. It appears that the boy is hardly 2½
years old and requires mother’s love and affection. She is the natural
guardian as per the Guardians and Wards Act, 1890. The writ of Habeas
Corpus is maintainable even though there might be alternative remedy. He
relies on Thirumalai Kumaran vs. Union Territory of Dadra and Nagar Haveli
and others [2003 (2) Mh.L.J. 53], wherein it has been held that –
“Even though the party has approached the Courts below under
Section 97 of the Code of Criminal Procedure and had failed therein,
in a given case and in the facts of peculiar case, the High Court may
exercise its discretion to act for issuance of writ of habeas corpus.
Power of the High Court are not taken away by Section 97 of the
Code of Criminal Procedure.”
6.1 He also relies on the order passed by this Court in Anita Mehul
Sathliya vs. The State of Maharashtra and others in Criminal Writ Petition
No.1225 of 2024 decided on 27.08.2024, to which [SMT. VIBHA
KANKANWADI, J.] was party, wherein also the child who was forcibly taken
away and was aged 09 months was handed over to petitioner – mother.
7 Learned Advocate for respondent No.4 relies on the affidavit-in-
reply of respondent No.4, wherein he has denied all the allegations. He
7 Cri.WP_2071_2024
states that child is residing with father very peacefully and in good
atmosphere since last one year. The question of custody of child must be
ultimately decided under Section 25 of Guardians and Wards Act and under
Section 6 of the Hindu Minority and Guardianship Act. Respondent No.4
denies the allegations about forcibly taking away of child. It is also denied
that respondent No.4 and his family members had harassed the petitioner.
Initially the petitioner had no desire to have a child and subsequently after
conceiving she wanted the forcible abortion. After the birth of child she
expressed that she does not want to feed the child and for that purpose she
was taking pills for stopping milk. She avoided feeding the child, which
resulted in developing small knots of milk in chest of petitioner. It had
resulted in amputation of her right hand. The entire treatment has been
given by respondent No.4. He has incurred about Rs.6,00,000/- for the
same. During the course of her treatment she was not in a position to take
care of son. Therefore, she had handed over the custody of child on
06.04.2024 when the child was less than 1½ year old to father and mother-
in-law. She was not interested in keeping the child with her and this
admission was given by her in her application under the D.V. Act. Since
06.04.2024 the child is emotionally attached to the mother of respondent
No.4. Respondent No.4 and his family members are looking after him nicely
and photographs, those have been produced, would disclose this fact.
8 Cri.WP_2071_2024
Learned Magistrate had not heard respondent No.4. There was nothing on
record to show that he was avoiding the notice. First Information Report was
lodged by brother of respondent No.4 when abuses were given at the time of
search of child in the house. Respondent No.4 is accepting the fact that
learned Magistrate’s order has been confirmed up to Hon’ble Supreme Court,
however, the legal remedy is available to petitioner to get the order executed.
Petitioner’s family is politically strong and, therefore, police as well as
Government Officers are supporting petitioner. Now, there is no attachment
of petitioner with child and even when during the pendency of this petition
as per the condition of petitioner, she herself, respondent No.4 started
residing in the upper room of the house of respondent No.4. Now, she ought
to have developed the bond between herself and child during the said period
when she had united, but the petitioner has not made much attempts. After
all the child had not seen the mother for so many months and calling
respondent No.4’s mother as ‘Aai’. Child would have moulded and further
journey of the marital life of petitioner and respondent No.4 would have
been smooth if petitioner would have taken extra efforts for developing that
mother and child bond. She started levelling allegations unnecessarily
though her demands were fulfilled by husband. Under such circumstance,
the case cannot be considered for issuing writ of habeas corpus.
9 Cri.WP_2071_2024
8 Learned Advocate for respondent No.4 relies on Sumedha
Nagpal vs. State of Delhi and others [2001 SCC (Cri.) 698], which is the case
involving custody of child of tender age of about two years and petitioner
was the mother, wherein it has been observed –
“Both parties do recognize that the question of custody of the child
will have to be ultimately decided in proceedings arising under
Section 25 of the Guardians and Wards Act read with Section 6 of the
Act and while deciding such a question, welfare of the minor child is
of primary consideration. Allegations and counter allegations have
been made in this case by the petitioner and respondent not against
each other narrating circumstances as to how the estrangement took
place and how each one of them is entitled to the custody of the child.
Since these are disputed facts, unless the pleadings raised by the
parties are examined with reference to evidence by an appropriate
forum, a proper decision in the matter cannot be taken and such a
course is impossible in a summary proceeding such as writ petition
under Article 32 of the Constitution.”
8.1 He further relies on Mandy Jane Collins Major vs. James Michael
Collins [2006 (3) AIR (BomR) 14], wherein note has been taken of various
decisions of this Court as well as Hon’ble Supreme Court, wherein welfare of
the child was predominantly considered.
9 Before considering the facts, we would like to consider the legal
history/background and requirements for issuance of writ of habeas corpus.
10 Cri.WP_2071_2024
The writ of habeas corpus is the contribution of English Common Law for the
protection of human liberty. Commonly known writ of habeas corpus is a
prerogative process for securing the liberty of the subject by affording an
effective means of immediate release from unlawful or unjustifiable detention
whether in prison or in private custody. In other words, habeas corpus is a
writ requiring a person to be brought before a Judge or Court whose personal
liberty has been jeopardised.
9.1 In Mohd. Ikram Hussain vs. State of U.P. [AIR 1964 SC 1625] it
has been observed that the writ of habeas corpus is not a writ of course and
may be granted only upon reasonable ground or probable cause being shown.
It may be refused when there is an alternative remedy available by which the
validity of the detention may be examined. However, it cannot be refused
only on the ground that alternative remedy is available.
9.2 In Rashmi Ajay Kumar Kesharwani vs. Ajay Kesharwani [(2012)
11 SCC 190] Hon’ble Supreme Court held that writ of habeas corpus should
not be issued as a matter of course in cases where there is abuse of process of
the Court. The facts of the said case were different; yet the basic law that
was made applicable is required to be considered here.
9.2 In Manubhai Ratilal Patel vs. State of Gujarat [(2013) 1 SCC
11 Cri.WP_2071_2024
314] it was held that –
“The writ of habeas corpus was devised for production of an
individual in case of illegal restraint or confinement. It is of the
highest constitutional importance to provide a swift and expedient
remedy by determining the petitioner’s right to freedom and to
protect the individual’s liberty against arbitrary action of the
executive or by private persons. Its main objective is to release
persons illegally detained or confined. It is a well-accepted principle
that a habeas corpus petition cannot be entertained when a person is
committed to judicial custody or police custody by the competent
court by an order which prima facie does not appear to be without
jurisdiction or passed in an absolutely mechanical manner or is
wholly illegal. The Court is required to scrutinize the legality or
otherwise of the order of detention which has been passed.”
However, in Jagisha Arora vs. State of U.P. [(2019) 6 SCC 619]
Hon’ble Supreme Court further explained that when there is a glaring case of
deprivation of liberty, intervention in habeas corpus petition under Article 32
would then be warranted.
10 Here, we are also taking note of the decision in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42],
wherein following are the observations –
“1 ………………..
12 Cri.WP_2071_2024
2 ………………..
3 ………………..
19 Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a medium
through which the custody of the child is addressed to the discretion
of the court. Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy provided by the
law is either not available or is ineffective; otherwise a writ will not
be issued. In child custody matters, the power of the High Court in
granting the writ is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal custody. In view of
the pronouncement on the issue in question by the Supreme Court
and the High Courts, in our view, in child custody matters, the writ of
habeas corpus is maintainable where it is proved that the detention of
a minor child by a parent or others was illegal and without any
authority of law.
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.”
10.1 It is further observed that the welfare of the child has to be
determined owing to the facts and circumstances of each case and the court
13 Cri.WP_2071_2024
cannot take a pedantic approach. We would also consider the Division Bench
decisions of Hon’ble Rajasthan High Court at Jodhpur in Dharmendra
Choudhary vs. The State of Rajasthan and others [MANU/RH/0245/2024],
wherein also Tejaswini Gaud (supra) referred and Rajeswari Chandrasekar
Ganesh vs. The State of Tamil Nadu and others [Writ Petition (Criminal)
No.402/2021], decided on 14.07.2022 by Hon’ble Supreme Court, wherein it
has been observed that –
“91. Thus, it is well established that in issuing the writ of Habeas
Corpus in the case of minors, the jurisdiction which the Court
exercises is an inherent jurisdiction as distinct from a statutory
jurisdiction conferred by any particular provision in any special
statute. In other words, the employment of the writ of Habeas
Corpus in child custody cases is not pursuant to, but independent of
any statute. The jurisdiction exercised by the court rests in such cases
on its inherent equitable powers and exerts the force of the State, as
parens patriae, for the protection of its minor ward, and the very
nature and scope of the inquiry and the result sought to be
accomplished call for the exercise of the jurisdiction of a court of
equity. The primary object of a Habeas Corpus petition, as applied to
minor children, is to determine in whose custody the best interests of
the child will probably be advanced. In a Habeas Corpus proceeding
brought by one parent against the other for the custody of their child,
the court has before it the question of the rights of the parties as
between themselves, and also has before it, if presented by the
pleadings and the evidence, the question of the interest which the
State, as parens patriae, has in promoting the best interests of the
14 Cri.WP_2071_2024
child.”
10.2 It has been further observed in Dharmendra Choudhary (supra)
that –
“The issue raised in a habeas corpus petition will always be subject to
factual matrix of that particular case, and more particularly, in the
cases pertaining to custody of a child, the Court will have to take into
due consideration, recent changes, if any, in regard to the custody,
which could determine the paramount welfare of the child in such
cases. Any immediate and recent change in custody of a child, largely
impacting his/her welfare, would certainly be a good cause for
making effective adjudication by the Court.”
10.3 It has been further observed in Dharmendra Choudhary (supra)
that –
“13. This Court holds that the custody issues which exist for a long
period of time, as involved herein, may not be dealt with, in habeas
corpus petition, except under certain extraordinary circumstances. In
the present case, the litigation between mother and father shows
agony and acrimony between the two sides which relates to the
period soon after the birth of the child.”
11 Now, the further legal position that is helping the petitioner is
that the child is around 2½ years of age now, but when she filed the
application for grant of custody the boy was 22 months old. In various
15 Cri.WP_2071_2024
decisions of this Court as well as Hon’ble Supreme Court it is held that till the
age of five the child’s natural custody would be with his or her mother.
12 Now, in the present case, first of all it appears that there is a
dispute, as to whether the custody of the child was forcibly taken or it was
handed over to respondent No.4 when the petitioner was hospitalized.
However, we may not go into the said aspect as the interim custody of the
child was granted as per Section 23 of the D.V. Act by the learned Magistrate.
Of course, such custody would be subject to the substantial petition that
should be filed by either of the parents under Guardians and Wards Act or the
Hindu Minority and Guardianship Act. Section 21 of the D.V. Act starts with,
“Notwithstanding anything contained in any other law for the time being in
force ……………” When such order is passed under Section 23 read with
Section 21 of the D.V. Act, then the question would be, how the
implementation of the said order can be made ? For that purpose we will
have to read Section 28 of the D.V. Act, which provides for the procedure,
which runs thus –
“28. Procedure. – (1) Save as otherwise provided in this Act, all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
offences under Section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973 (2 of 1974).
16 Cri.WP_2071_2024
(2) Nothing in sub-section (1) shall prevent the Court from laying
down its own procedure for disposal of an application under Section
12 or under Sub-Subsection (2) of Section 23.”
That means, the Magistrate has to follow the provisions of the
Code of Criminal Procedure. That means, there is a provision for execution
of the order. Now, the question is, when there is such provision, then
whether this Court can exercise its powers for issuing writ of habeas corpus ?
In other words, whether petition of habeas corpus can be filed as alternative
to the execution of the order which is already passed under the provisions of
Law ? Here, in this case, the said order is confirmed up to Hon’ble Supreme
Court. It appears that after the confirmation of order by Hon’ble Supreme
Court, petitioner has not knocked the doors of Magistrate for the execution of
order and even prior to that had approached this Court. From the affidavit-
in-reply it appears that respondent No.4 had filed appeal challenging
Magistrate’s order before the Sessions Court and it appears that his stay
application was rejected, then he approached this Court in revision. Here, we
would like to stress that each party can exhaust the legal remedy available
and the step taken cannot be termed as the action on the part of person
challenging as avoiding the execution or a step in disobedience.
13 We will have to dedicate some space in this order to state as to
what had happened before this Court. On 06.05.2025 respondent No.4 had
17 Cri.WP_2071_2024
brought the child before Court and then pursis Exh.’X’ was filed. After some
deliberation that petitioner and respondent No.4 are willing to reside
together and orally it was stated that initially it was for two days considering
the welfare of the child. This deliberation was held in the chamber, wherein
petitioner, respondent No.4 and Advocates representing them were present.
The matter was adjourned to 09.05.2025. Then pursis Exh.’Y’ was given that
they will continue to explore the possibility by residing together for the
welfare of the child. Then the matter was placed on 09.06.2025. On
09.06.2025 the Advocate for petitioner disclosed that petitioner is having
some examination and, therefore, the matter was adjourned on 23.06.2025.
On 23.06.2025 both the parties along with Advocates were present and
disclosed to the Court that they want further more time. However, on
14.07.2025 learned Advocate for petitioner made a grievance that the matter
was somewhat compromised and the parties are residing together, but
according to petitioner, now she is mentally harassed. It was thought by this
Court that now the possibility of settlement has extinguished and, therefore,
we heard the matter on the adjourned dates. Thus, there was an attempt by
this Court for bringing the husband and wife together for the welfare of child,
but it failed.
14 Coming back to the factual position, as aforesaid, now the child
18 Cri.WP_2071_2024
is with the father since last more than one year and according to respondent
No.4, he made all the efforts to stay with petitioner taking into consideration
the welfare of the child, but, according to him, petitioner could not establish
the bond as child had not seen the mother for a considerable time. We may
not go much into those disputed facts, however, when certainly, there is an
order granting custody of child to petitioner passed by a competent Court,
then instead of getting the same executed if petitioner is coming before this
Court by way of writ petition for issuance of writ of habeas corpus, we will
have to then consider that respondent No.4, who is father, is having the
custody against whom it is stated that order is passed ex parte by learned
Magistrate.
15 The photographs produced would show that the child is happy
with grandmother and other family members. If we consider the pleadings in
application under D.V. Act i.e. PWDVA No.89/2024, in paragraph No.3 she
states that she was required to undergo the amputation on 20.04.2024 and
since she as well as her parents were in the hospital, the child was with the
respondents i.e. husband and his family members. Though she has stated
that entire expenses of hospital were borne by her father, along with affidavit
copy of bank statement of respondent No.4 has been filed, which shows
payments to Jaslok Hospital, Mumbai and according to petitioner, in her
19 Cri.WP_2071_2024
pleadings in domestic violence proceedings after discharge respondents had
not accepted her nor given the custody. She filed domestic violence
proceedings on 09.09.2024.
16 At this stage, we are considering the welfare of the child as
paramount consideration. At the same time, the petitioner would be at
liberty to get the order executed. We do not want to convert the execution
proceedings in the form of writ of habeas corpus. At the cost of repetition,
the writ of habeas corpus cannot be issued as a matter of course and when
proceedings for execution thereof is available, we do not find this to be a fit
case where we should exercise our powers under Article 226 of the
Constitution of India. Hence, following order.
ORDER
i) Criminal Writ Petition stands dismissed.
ii) Rule stands discharged.
( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd