Leena Rupesh Chinchagharkar v. State of Maharashtra & others

1. Rule. Rule made returnable forthwith with the consent of the parties and heard finally.

2. This petition is filed with the following substantive prayers: Sherla V. “a) Issue a Writ of Habeas Corpus to the Respondent No.1 through any of its competent branch. b) Issue an appropriate Writ to handover custody of the child to the Petitioner as per the order dated 23/10/2020 of Ld. Addl. Chief Metropolitan Magistrate. c) Issue an appropriate Writ to file a FIR against the persons who actually abducted the child at the instance of the Respondent no.3.”

3. On 17th November, 2020, this Court had issued notice to the Respondents and made it returnable on 19th November, 2020 while directing Respondent No.3 to produce the child Samihan before this Court. However, on 19th November, 2020, the child was not produced on the ground that Respondent No.3 was suffering from fever. Therefore, by way of an opportunity to Respondent No.3, we had directed Respondent No.3 to produce the child on 20th November, 2020 and accordingly, today, Respondent No.3 has brought the child before this Court.

4. It is the contention of the learned Counsel for the petitioner/original Applicant that the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, has passed an order on 23rd October, 2020 in C.C. No.673/N/2020 thereby directing Respondent No.3 to hand over the custody of the child, namely, Samihan, aged 1 year and 6 months, to the original applicant – Leena Rupesh Chinchagharkar. Further, the present petitioner, who is the original applicant before the Magistrate Court, was directed to take all necessary safeguards towards the welfare of the child and to provide necessary medical treatment to the child. The learned Counsel for the petitioner submits that inspite of specific directions to Respondent No.3, Respondent No.3 did not hand over the custody of the child and on the contrary, the child was removed from the Court premises without adhering to the directions contained in the order dated 23rd October, 2020.

5. The sum and substance of the arguments of the learned Counsel for the petitioner is that inspite of specific directions by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, to Respondent No.3, Respondent No.3 has avoided to give custody of the child Samihan to the petitioner.

6. The learned Counsel appearing for Respondent No.3 submits that Respondent No.3 has assailed the order dated 23rd October, 2020 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai by filing Writ Petition (Stamp) No.3767 of 2020 before this Court. On 6th November, 2020, the Bench presided over by the learned Single Judge of this Court was pleased to issue notice to the respondents and made it returnable on 23rd November, 2020. A copy of the said order dated 6th November, 2020 is tendered across the bar during the course of the hearing of the present petition.

7. We have given due consideration to the rival submissions with the assistance of the learned Counsel appearing for the parties; perused the pleadings and grounds taken in the petition and annexures thereto and in particular, the directions contained in the order dated 23rd October, 2020 passed by the learned Additional Chief Metropolitan Magistrate and we are of the opinion that in due regard to the said directions and in particular, clause (2) of the operative order, Respondent No.3 should have immediately given the custody of the child Samihan to the petitioner.

8. Admittedly, the age of the child Samihan is 18 months. The Supreme Court in the case of Roxann Sharma vs. Arun Sharma[1], in para 12, held as under: “12. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.”

9. In that view of the matter, this is a fit case to exercise extraordinary jurisdiction and direct Respondent No.3 to hand over the custody of the child Samihan to the petitioner. Respondent No.3 is present with the child Samihan. The custody of the child is handed over to the petitioner in the Court hall in the presence of the respective parties and their lawyers. Since the child is produced and his custody is handed over to the petitioner, we do not wish to elaborate the reasons since the Bench presided over by the learned Single Judge is seized with the hearing of the Criminal Writ Petition (Stamp) No.3767 of 2020 (Rupesh Suryakant Chinchagharkar vs. The State of Maharashtra & another).

10. For the aforesaid reasons, the petition succeeds and the same is allowed. The observations made hereinabove are strictly confined to the adjudication of the present petition and will have no bearing on the pending proceeding i.e., Writ Petition (Stamp) No.3767 of 2020 (Rupesh Suryakant Chinchagharkar vs. The State of Maharashtra & another) before the learned Single Judge. We make it clear that all the contentions on merits are kept open to be agitated before the learned Single Judge.

11. We direct the Senior Police Inspector, Malad Police Station, Mumbai to provide necessary police protection to the petitioner till she reaches her residence at Malad.

12. Rule made absolute to the above extent and the petition stands disposed off.

13. This order will be this Court. All concerned will act on production by fax or e-mail of (MADHAV JAMDAR, J.) (S.S. SHINDE, J.) Vishwanath