19.cri.wp.648.2026.Judment.odt (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL WRIT PETITION NO.648 OF 2026 1. Rupesh s/o Namdeo Bagade, Aged about 47 Years, Occupation : Service, R/o. Plot No.42, Second Bus Stop, Gopal Nagar, Nagpur. .... PETITIONER // VERSUS // 1. State of Maharashtra, through its Police Station Officer, Police Station, Bhandara, District Bhandara. 2. Sau. Hemlata w/o. Rupesh Bagde, (Before Marriage and after divorce Hemlata Gopal Sonwane), Aged about 40 Years, Occupation : Housewife. 3. Gopal s/o Sonwane, Aged about 65 Years, Occupation : Nil. 4. Sau. Kalavati w/o Gopal Sonwane, Aged about 60 Years, Occupation : Housewife. 5. Amit Gopal Sonwane, Aged about 45 Years, Occupation : Private. 6. Rupesh Gopal Sonwane, Aged about 40 Years, Occupation : Private. All R/o. 2 to 6 C/o. Gopal Sonwane, Rajgopalchari Ward, Bhandara. .... RESPONDENTS 2026:BHC-NAG:13783-DB 19.cri.wp.648.2026.Judment.odt (2) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. M. Kuhikar, Advocate along with Mr. U. Y. Sonkusare, Advocate for petitioner. Ms. S. S. Jachak, APP for State. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE, JJ. DATED : 05/10/2026 ORAL JUDGMENT : [Per : URMILA JOSHI-PHALKE, J.] 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties. 2. The present petition is preferred by the petitioner for seeking appropriate direction against the respondents and to produce the son Laksh before this Court and also to direct to grant access of son Laksh, till the disposal of this present petition. 3. Heard learned counsel for the petitioner, who submitted that the marriage between the petitioner and the respondent No.2 was performed on 28.06.2012. Out of the said wedlock, one child namely Laksh has been born. But, there was a matrimonial dispute between the parties and hence respondent No.2 has left the company of the petitioner with her son Laksh. The respondent – wife had filed a petition for divorce against the petitioner-husband, which has been allowed by the Family Court, Bhandara. The petitioner-husband though made efforts to have access of the son but all efforts gone in vain, hence he filed a 19.cri.wp.648.2026.Judment.odt (3) custody petition before the Family Court, Bhandara, in which respondent – wife even served by the summons of the Court, did not appear before the Court. The same petition was partly allowed by the learned trial Court and access was granted to the present petitioner. Despite there was a direction by the Family Court, Bhandara to give an access, but the respondent No.2 has not given any access of the child to the present petitioner and, therefore, present petitioner constrained to file this petition for having an access of the child. He invited our attention towards the paragraph No.12 of the petition and submitted that the respondent No.2 has kept the child in her custody, restricting the child to have meeting with his father i.e. petitioner since the day she left the company of the petitioner and thereby he is seeking a writ of habeas corpus. 4. The respondent No.2 appeared and filed an affidavit stating that she is residing at Panvel, District Raigad. She denied all the allegations made against her. She specifically stated that due to a matrimonial dispute and circumstances between the parties, she had instituted Hindu Marriage Petition No.112/2018 wherein decree of divorce was passed. She also admitted that the petitioner also filed a petition bearing No.D-05/2022 for the custody of the child. The Family Court, Bhandara has not granted any custody of the minor child to the petitioner, but 19.cri.wp.648.2026.Judment.odt (4) granted the access that is the visitation in the manner stipulated in the said judgment. The order contemplated access initially on the first Sunday, thereafter on the second and fourth Sundays and subsequently on Sundays between 4.00 p.m. and 7.00 p.m. at Nagar Parishad Garden near Bhandara Muslim Library Square, Bhandara. The petitioner thereafter instituted execution proceedings bearing R.D. No.01/2026, as she has already shifted to Panvel and, therefore, she could not attend the said proceedings. She submitted that the minor child Laksh is presently residing at Mumbai with her and is studying in 8th Standard at Mumbai. He is regularly attending the school and considering his academic schedule, private tution, homework, examinations, school activities and other education commitments, the child could not be made available to have an access. She further submitted that considering the present residence and education of the minor child at Mumbai, it is difficult to take the child from Mumbai to Bhandara and, therefore, the child was not produced to have an access. She admitted that she has no objection to give an access to the petitioner on every second and fourth Sunday of each month at Shiv Mandir, Kharghar, Navi Mumbai, where the petitioner can meet and interact with his son for reasonable hours as may be directed by the Court. 19.cri.wp.648.2026.Judment.odt (5) 5. We have also interviewed the child on the last date 28.09.2026. During the interview, it was revealed that the child is completely unaware about the love and affection of the father. He stated before us that he never meet his father and since his childhood initially he was residing along with his maternal uncle and thereafter along with his mother to Panvel, Mumbai. 6. Before entering into the merits of the matter, it is necessary to consider broad proposition of the settled law on the point of writ of habeas corpus summarized by the Hon’ble Apex Court in the case of Somprabha Rana and ors vs. State of Madhya Pradesh and ors reported in (2024) 9 SCC 382, which are as follows: “a. Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy; b. The 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; c. Even if the High Court, in a petition of Habeas Corpus, finds that custody of the child by the respondents was illegal, in 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 d. As 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.” 19.cri.wp.648.2026.Judment.odt (6) 7. While dealing with the custody of the minor child, whose age is 13 years, there is no dispute that the father is a natural guardian of the said minor child. The minor child is in custody of respondent No.2 from his childhood. He never resided with his father. While dealing with issue of habeas corpus regarding a minor, obviously, the court cannot treat such child as a property and transfer custody casually. Such issues require to be decided sensitively on humanitarian ground. Obviously, the court cannot ignore the doctrine of parens patriae. 8. Considering the peculiar facts of the present case, as far as the contention of the learned counsel for the petitioner that the child is in illegal custody is not established and we are not satisfied that the child was kept in illegal detention due to the act of the respondent No.2. 9. The Hon’ble Apex Court in the case of Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari reported in (2019) 7 SCC 42, wherein it is observed that, “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 19.cri.wp.648.2026.Judment.odt (7) by the law is either not available or is ineffective; otherwise a writ will not be issued. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. 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. 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. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.” 10. Thus, the settled law is that a writ of habeas corpus is maintainable only when it is proved that detention of minor child by parents or otherwise was illegal or without any authority of law and hence in a peculiar facts and circumstances of the case, 19.cri.wp.648.2026.Judment.odt (8) the order of the High Court grating writ of habeas corpus is justified one. 11. Here in present case, the custody of the child is retained by the respondent No.2, in view of the judgment of the Family Court, Bhandara in Custody Petition No.D-05/2022. 12. Now, only questions remains as far as the compliance of the order passed by the learned Family Court Bhandara. Considering the order passed by the Family Court, Bhandara in Petition No.D-05/2022 the access was given to the present petitioner, he can have access to the child for initial three months on first Sunday, and thereafter on second and fourth Sunday for a period of one year and thereafter on every Sunday. Now, the respondent No.2 has already by filing a reply stated that she has no objection, if the petitioner is having an access to the child on every second and fourth Sunday of each month at Shiv Mandir, Kharghar, Navi Mumbai for any reasonable time. 13. Considering her admission, the petition deserves to be allowed partly to the extent of prayer clause (ii). In view of that, we proceed to pass following order: ORDER (i) The writ petition is allowed partly. 19.cri.wp.648.2026.Judment.odt (9) (ii) The respondent No.2 shall make available the child to the petitioner to have an access every second and fourth Sunday of each month at Shiv Mandir, Kharghar, Navi Mumbai from the period 2.00 p.m. to 4.00 p.m. (iii) The petitioner shall deposit the entire arrears of the maintenance Rs.1,80,000/- within four weeks. With this directions, the petition is disposed of. Rule is made accordingly. (RAJ D. WAKODE, J.) (URMILA JOSHI-PHALKE, J.) Sarkate. Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 13/10/2026 20:32:31