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Bombay HC Upholds Father’s Right to Custody of Minor Child Citing No Legal Bar

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Published on: 26 September 2023 at 16:42 IST

The Bombay High Court has granted custody of a minor child, born out of a relationship between an adult man and a minor woman, to the child’s biological father.

The court emphasized that no provision of the law, including the Juvenile Justice Act (JJ Act), could disentitle the father from obtaining custody.

Also Read: Children Protection Laws In India – Law Insider India

The petitioner and respondent were married and a son was born. The petitioner alleged that respondent number 3’s family threatened them during her pregnancy, leading them to flee.

However, they were eventually found and brought back by their families. Subsequently, a police complaint was filed by respondent number 3’s family, and she surrendered custody of the child to respondent number 2. She also entered into marriage with another man. In response, the petitioner filed a writ petition seeking the production of his minor son and custody.

The Child Welfare Committee (CWC) submitted an affidavit stating that respondent number 3 had voluntarily given up her child by signing the necessary documents. After the mandated 60-day waiting period specified in the Juvenile Justice Act (JJ Act), the child becomes eligible for adoption.

The affidavit further noted that the child was available for adoption through the Central Adoption Resource Authority (CARA).

The court acknowledged that the petitioner was indeed the biological father of the child. However, due to respondent number 3’s age, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was invoked, leading to the petitioner’s arrest.

During this period, the child lived with both the petitioner and respondent number 3 for over three months. The CWC had already granted custody of the child to the petitioner under the JJ Act, following an order referring to an application filed by the petitioner’s parents. This application had been misplaced by the CWC.

The petitioner contended that his parents had applied for custody on his behalf while he was in custody.

The court observed that this demonstrated the petitioner’s and his parents’ unwavering efforts to regain custody of the child.

In light of these circumstances, the court disposed of the petition.

Case Title: Ramu Maruti Gadivdar V. The State of Maharashtra