Case Note & Summary
The petitioner, Leena Rupesh Chinchagharkar, filed a Criminal Writ Petition (Stamp) No.4880 of 2020 before the Bombay High Court seeking a writ of habeas corpus for custody of her minor child, Samihan, aged 1 year and 6 months, from the respondent No.3, her husband Rupesh Chinchagharkar. The petitioner had earlier obtained an order dated 23/10/2020 from the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, in C.C. No.673/N/2020 under the Protection of Women from Domestic Violence Act, 2005, directing the respondent No.3 to hand over custody of the child to her and also directing her to take necessary safeguards for the child's welfare and provide medical treatment. Despite this order, the respondent No.3 did not comply and allegedly removed the child from the court premises. The High Court issued notice on 17/11/2020, directing production of the child. The child was produced on 20/11/2020. The court heard the parties and observed that the child was in the custody of the father, a parent, and that a competent court had already passed a custody order. The court held that a writ of habeas corpus is not maintainable in such circumstances. However, to ensure compliance with the magistrate's order and the welfare of the child, the court directed the respondent No.3 to hand over custody of the child to the petitioner within 24 hours, and directed the petitioner to take all necessary safeguards for the child's welfare and provide medical treatment. The petition was disposed of accordingly.
Headnote
A) Criminal Law - Habeas Corpus - Child Custody - Maintainability - Habeas corpus petition for custody of minor child aged 1 year 6 months filed by mother against father - Child in custody of father, a parent - Competent Magistrate had already passed order under Protection of Women from Domestic Violence Act, 2005 directing father to hand over custody to mother - Held that habeas corpus is not maintainable when child is in custody of a parent and a competent court has already passed custody orders - Petition disposed of with direction to father to comply with Magistrate's order (Paras 1-8). B) Family Law - Child Custody - Welfare of Child - Protection of Women from Domestic Violence Act, 2005 - Section 21 - Magistrate's order dated 23/10/2020 directed father to hand over custody of child to mother with safeguards for child's welfare - Father failed to comply - Court directed father to hand over custody to mother within 24 hours and mother to ensure child's welfare and medical treatment (Paras 4-8).
Issue of Consideration
Whether a writ of habeas corpus is maintainable for custody of a minor child when the child is in custody of a parent and a competent court has already passed an order regarding custody under the Protection of Women from Domestic Violence Act, 2005.
Final Decision
The petition is disposed of. Respondent No.3 is directed to hand over custody of the child Samihan to the petitioner within 24 hours. The petitioner is directed to take all necessary safeguards towards the welfare of the child and to provide necessary medical treatment to the child. The petition is disposed of accordingly.
Law Points
- Habeas corpus not maintainable for child custody between parents when custody order exists from competent court
- Welfare of child paramount
- Compliance with magistrate's order directed
