Bombay HC Refuses Interim Custody to Biological Parents, Orders District Court to Decide Permanently Within Six Months

Justice N.J. Jamadar held that transferring interim custody of a girl raised since infancy by a non-guardian neighbour would harm her welfare, even though her biological parents retain legal rights over her.

The Bombay High Court has dismissed a writ petition filed by the biological parents of a girl child, declining to direct her transfer to them on an interim basis from the custody of a neighbour who has raised her since she was approximately two months old. Justice N.J. Jamadar, sitting singly, pronounced judgment on 31 August 2026 in Writ Petition No. 3975 of 2023, after reserving it on 27 March 2026. The petition had challenged an order dated 28 November 2022 passed by the District Judge, Kalyan, which had refused to grant the biological parents interim custody of the child during the pendency of their application for permanent custody under Section 25 of the Guardians and Wards Act, 1890. The court directed the District Court to decide the main custody application, M.A. No. 85 of 2019, within six months from 8 September 2026, while also structuring access rights for the biological parents in the interim.

How the Child Came to Be with a Neighbour

The petitioners, Yogesh Gangaram Sanap and Rupali Yogesh Sanap, are the biological parents of the girl child, referred to as “Y” throughout the proceedings. The respondent, Anil Mahadev Raghav, was their neighbour and colleague at M/s. Haymarket SAC Publishing (India) Pvt. Ltd. Both families lived in Chandrakant Bhoir Chawl, Mangal Ragho Nagar, Teesgaon, Kalyan (East).

The child was born on 1 December 2014 — the third daughter of the petitioners. The respondent and his wife were childless. According to the petitioners, when the child was three months old, the respondent and his wife requested temporary custody of her on the ground that it would positively affect the state of mind of the respondent's wife. The petitioners say they agreed out of goodwill.

The relationship soured when the petitioners discovered that the respondent had enrolled the child in Little Angle Nursery, a playgroup, under the name “Ovi Anil Raghav” — without the petitioners' knowledge or consent. The petitioners then wrote to the schools where such admissions had been made. The respondent and his wife thereafter refused to return the child, restrained the petitioners and their family from meeting her, and retained custody without any recognised legal authority, the petitioners alleged.

A legal notice was issued by the petitioners on 29 June 2019 demanding custody. The respondent replied on 12 July 2019 claiming the child had been given in adoption to him. The petitioners denied this and filed an application under Section 25 of the Guardians and Wards Act, 1890 before the District Court, Kalyan, in 2019. During the pendency of that application, they also sought interim custody under Section 12 of the same Act. It was the rejection of that interim application by the District Judge on 28 November 2022 that was the subject of the writ petition.

Conflicting Accounts and the Adoption Claim

The respondent's case before the District Court and the High Court was that the child was given in adoption on 23 January 2015, when she was barely one and a half months old, in a ceremony. He further stated that a naming ceremony was held on 5 April 2015 at his then residence at Parel, where the child was named “Ovi” in the presence of the petitioners and others. The respondent contended that the petitioners had agreed to execute a formal deed of adoption but later withdrew from their promise. He argued that the petitioners had even shared documents with him to facilitate the child's school admission.

Justice Jamadar noted several uncontroverted facts at the outset: the petitioners are undisputedly the biological parents; the respondent is not a relative of the petitioners; the child has been in the respondent's custody since infancy; and disputes appear to have commenced in 2019 over the child's school admission. On the adoption claim itself, the court observed that the purported adoption ceremony was not evidenced by any document. The respondent's position was that the petitioners had agreed to execute documents but reneged. Whether the adoption was valid — and whether it satisfied the requirements of the Hindu Minority and Guardianship Act, 1956 — remained to be adjudicated on evidence in the main application.

The Legal Framework: Welfare as the Paramount Consideration

Justice Jamadar set out the governing legal framework before applying it to the facts. Section 25(1) of the Guardians and Wards Act, 1890 empowers a court to order the return of a ward to the custody of a guardian, but only if it is of the opinion that such return will be for the welfare of the ward. The court read this to mean that the emphasis is on the welfare of the child, not merely on the legal right of the guardian. The fact that the person in custody has no legal right to retain it, while not irrelevant, is not of decisive significance.

Counsel for the petitioners, Dr. Prashant Kayande, argued that the respondent was a complete stranger with no authority over the child, and that the principles applicable where custody is disputed between parents or between a parent and relatives did not apply with full force here. He urged that the High Court's writ jurisdiction under Articles 226 and 227 of the Constitution permitted it to transfer custody independently of the Guardians and Wards Act proceedings, relying on the Supreme Court's judgment in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others (2019) 7 SCC 42, and a judgment of the Bombay High Court in Rakesh Tulsidas Rathod v. Jayraj Vishram Vapikar and Others (Criminal WP/579/2021, decided 1 February 2022).

Justice Jamadar did not accept the argument that the welfare principle applies with diminished force simply because the person in custody is not a parent or lawful guardian. He held that even in such cases, the court exercises parens patriae jurisdiction and must carefully examine the welfare of the child. He acknowledged that there could be a qualitative difference in the degree of application of the principle depending on the facts, but the principle of paramountcy of the child's welfare could not be displaced entirely.

The court extracted from the Supreme Court's judgment in Tejaswini Gaud the proposition that while deciding child custody cases, the court is not bound by the legal right of the parent or guardian, and that the paramount consideration is child interest and welfare. It also drew from Gaurav Nagpal v. Sumedha Nagpal the wide construction of the term “welfare” — encompassing moral and ethical welfare as well as physical well-being — and from Nil Ratan Kundu and Anr. v. Abhijit Kundu the proposition that over and above physical comforts, moral and ethical values are equally indispensable considerations, and that where a child is old enough to form an intelligent preference, the court must consider such preference, though the final decision rests with the court.

On the specific question of interim custody under Section 12, Justice Jamadar followed the Supreme Court's guidance in Athar Hussain v. Syed Siraj Ahmed and Ors. which held that the court must determine whether there are sufficient and compelling reasons to change the custody of a minor child with immediate effect, and that stability and consistency in the affairs and routines of children is also an important consideration.

The Child's Expressed Preference and Its Weight

Both the District Judge and Justice Jamadar independently interviewed the child. When the District Judge interviewed her, the child declined to recognise the petitioners. Before the High Court as well, the child demonstrated complete indifference towards the petitioners and expressed total disinclination to leave the respondent and his wife.

Justice Jamadar acknowledged that this could be a learned trait — a product of the acrimony between the parties and the respondent's influence on the child — and that such influence on the behaviour and articulation of choice by the child could not be entirely discounted. Nonetheless, the child was studying in 4th standard at the time of the High Court interview and appeared certain about her preference.

Counsel for the petitioners urged the court not to give significant weight to the preference expressed, since a child of such young and impressionable age cannot form an intelligent preference, particularly one who had been in the respondent's custody since infancy and whose mind may have been influenced against the petitioners. Justice Jamadar accepted that the wishes of a child are not decisive and must be appreciated in the light of the broader welfare analysis, but declined to treat them as entirely immaterial.

Applying the Principles to the Facts

Justice Jamadar identified eight factors of critical salience in the facts of this case, each weighing against disturbing interim custody.

The child came into the respondent's custody when she was barely two months old, whether the date is taken as January 2015 (per the respondent's adoption claim) or February 2015 (per the petitioners' own pre-application notice). For the child, the respondent and his wife have been her parents since infancy. The initial transfer of custody was not wrongful or surreptitious — it was voluntary, and the disputes began only when the child was old enough to be enrolled in a pre-school. For at least four and a half years, the child had lived under the impression that the respondent and his wife were her parents. By the time the High Court dealt with the matter, a period of almost ten years had passed. The child found herself comfortable with the respondent and his wife, and had made her preference explicitly clear. Transfer of interim custody would seriously affect the stability and continuity of her life and affairs, and carried an imminent risk of causing psychological harm.

The court also took note of the impasse over the child's schooling. The admissions taken by the respondent at Little Angle Nursery, Kalyan and Don Bosco School were cancelled due to objections raised by the petitioners. In 2023, the petitioners alleged that the respondent had enrolled the child in Narayani School using forged documents. The veracity of these allegations and counter-allegations, the court held, required adjudication after evidence was recorded in the main application.

Rejecting the respondent's preliminary objection that granting interim custody would be tantamount to granting the final relief, Justice Jamadar held that while the general rule against anticipating final relief at an interim stage is well-recognised, it cannot override the paramount consideration of the child's welfare. However, he found on the facts that welfare did not, at this stage, support transferring interim custody to the petitioners.

The court also addressed the question of whether it should exercise its plenary writ jurisdiction to direct transfer of custody independently of the Guardians and Wards Act proceedings. Justice Jamadar acknowledged this power, but held that the court under the Guardians and Wards Act, 1890 is better equipped to determine welfare — it can interact with the child at multiple stages, appoint expert psychologists, supervise visitation rights, and foster development of the bond between the child and the non-custodial parents. These tools are not readily available in writ proceedings. He relied on the Supreme Court's observations in Somprabha Rana and Ors. v. State of Madhya Pradesh and Ors. to the effect that a child cannot be treated as movable property and transferred mechanically without considering the impact of disturbing custody.

Directions on Access Pending Final Decision

While upholding the rejection of the interim custody application, Justice Jamadar recognised that the acrimony between the parties had rendered the District Judge's earlier access directions unworkable. He therefore issued fresh directions to ensure the petitioners could maintain contact with the child during the pendency of the main application.

The court also directed expeditious disposal of the main application, M.A. No. 85 of 2019, with the District Judge at Kalyan requested to hear and finally decide it within six months from 8 September 2026. The court was careful to clarify that none of the observations made in the writ petition judgment would influence the trial court, and that all contentions of both parties were kept open for the final decision of the main application.

Order

The writ petition was dismissed. The District Judge, Kalyan, seized with M.A. No. 85 of 2019, was requested to hear and finally decide the matter as expeditiously as possible and preferably within six months from 8 September 2026. The parties were directed to appear before the District Judge on 8 September 2026 and to cooperate in the expeditious disposal of the matter without seeking unnecessary adjournments.

Pending the decision of M.A. No. 85 of 2019, the petitioners were granted access to the child on every Friday and Saturday for three hours, either in the morning or evening, at a place to be decided by the District Judge — either within the precincts of the District Court, Kalyan, or beyond. The parties were given liberty to approach the District Judge for modification of this access arrangement. Rule was discharged. No costs were awarded.