Matters are decided within four corners of law and not on general perceptions, remarked the Bombay High Court when a mother, who had abandoned the child since she was a minor at the time of birth, opposed handing over of the custody to the biological father following a habeas corpus (produce the person in court) petition.
A division bench of Justices Revati Mohite-Dere and Gauri Godse had directed the Child Welfare Committee (CWC) to hand over the child’s custody, who was abandoned by the mother, to the father while hearing his plea.
On Monday, additional public prosecutor Prajakta Shinde informed the court that the panel had passed a fresh order handing over the custody to the father.
Mother opposes child's custody given to father
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The girl, now an adult and married, sought to intervene before the HC opposing the custody being given to father.
Her counsel Flavia Agnes contended that they are objecting as the man was facing a case under Protection of Children from Sexual Offences Act (POCSO) registered by the girl’s family for statutory rape.
To this the judges remarked that she had abandoned the child and also the fact that the two were living together for five months after the child’s birth.
POCSO case against the father still pending
“What is your role? You put the child in adoption. You have abandoned it,” Justice Dere said. She added that the child was with them for over five months and subsequently was with adoptive parents after she abandoned the child, while the father was arrested.
Agnes said that the POCSO case is still pending and the mother has apprehension for the welfare of the child.
Advocate Ashish Dubey, appearing for the father, said the chargesheet has already been filed in the case.
When Agnes tried to emphasise that the father was booked under POCSO, the bench remarked that it was statutory rape but they were together for five months after child birth.
HC says not a case of assault against the father
“When the child was born they were together. This is not a case where there was assault…” justice Godse said.
To this, Agnes questioned whether he is fit to be a father to take care of the child.
On a court query whether the mother intends to revoke the surrender letter while abandoning the child, Agnes replied in negative.
Justice Godse then remarked: “This is not a (child) custody matter… Matters are decided within four corners of law and not on general perceptions.”
The court noted that the petition has worked out, but agreed to hear Agnes on the next date of hearing on August 21.
Case history
According to the plea, father, then 19 and mother, then 17, eloped to Karnataka in 2021 after she became pregnant. She delivered on November 26, 2021.
After they returned to Mumbai on March 4, 2022, the father was arrested under POCSO based on the girl’s father’s complaint. The CWC, on March 7, 2022, sent the girl and the child to a shelter home.
She then surrendered the child to CWC. As the youth’s parents did not receive a reply from the CWC for custody, he sought custody. He then approached the HC through advocate Ashish Dubey.
