No Provision Of Law Including JJ Act Can Disentitle Father From Getting Custody Of Child: Bombay High Court
The Bombay High Court allows a Writ Petition of a father seeking custody of a minor child born out of a love affair between an adult man and a minor woman.
The Court observed, " We may also note that Ms. Agnes was unable to point out any provision of law including any provision under the JJ Act, which would disentitle the petitioner from getting custody of the minor child."
The Court noted that the father made all possible efforts to gain custody of the child. The Court noted that, given the particular circumstances, there was no legal impediment in handing over the custody to the biological father.
“In view of the aforesaid there is no question of raising any objection on behalf of the respondent no. 3 for handing over the minor child to the petitioner. The petitioner being the biological father of the minor child, there is no impediment in him being handed over the custody of the minor child in the peculiar facts and circumstances of the present case”, the Bench comprising Justice Revati Mohite Dere and Justice Gauri Godse noted.
Advocate Ashish Dubey appeared for the Petitioner and Additional Public Prosecutor P.P Shinde appeared for the Respondent.
The Petitioner and Respondent no 3 were in a love affair and a son was born. The Petitioner contended that the family of Respondent no 3 threatened them while she was pregnant and therefore they ran away. However, the parents traced them and brought them back. The family of Respondent no 3 filed a police complaint and thereafter, she surrendered the child before Respondent no 2 and got married to another man. The Petitioner approached the Court by way of a Writ Petition seeking directions against Child Welfare Committee/Respondent no 2 (CWC) to produce the Petitioner’s minor son before this Court and further sought custody of his minor son. According to an affidavit filed by the CWC, the victim girl (Respondent No. 3) had given up her child by signing the necessary documents. After 60 days, as mandated by section 35 of the Juvenile Justice Act (JJ Act), the child is considered eligible for adoption. The affidavit also mentions that the child is being offered for adoption through the Central Adoption Resource Authority (CARA).
The Court noted that the Petitioner was indeed the biological father of the child. However, due to the age of Respondent no. 3, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was invoked, resulting in the Petitioner's arrest. During this time, the child lived with both the Petitioner and Respondent no. 3 for over three months. The custody of the child was already granted to the Petitioner by the CWC under the JJ Act, following an order that referred to an application made by the Petitioner's parents, seeking custody of the child, which had been misplaced by the CWC. The Petitioner contended that his parents had applied on his behalf while he was in custody. The Court observed that this indicates that the Petitioner and his parents made every effort possible to regain custody of the child.
Accordingly, the Court disposed of the Petition.
Cause Title: Ramu Maruti Gadivdar v The State of Maharashtra
