Bombay HC Orders Custody of 5 Year Old to Biological Father, Rejects Grandmother’s Claim

The Bombay High Court has directed the police to hand over custody of a five year old boy to his biological father, holding that the grandparents cannot retain custody against the rights of natural guardians. The Court observed that while custody disputes are ordinarily to be decided under the Guardians and Wards Act, a writ of habeas corpus can be issued in exceptional circumstances where a child is unlawfully deprived of parental care.

A Division Bench of Justices Ravindra V. Ghuge and Gautam A. Ankhad observed that, "In our view, the Petitioner being the biological father and natural guardian, has an undisputed legal right to claim custody of his child. The contention of Respondent No. 5 that the Petitioner is emotionally and financially incapable of caring for the twins cannot be accepted. Custody cannot be denied on the basis of these allegations."

The case concerned petitioner Pravin Nathalal Parghi, who approached the Court seeking a writ of habeas corpus to secure custody of his son, Mst. Lavya Parghi, from his mother (respondent no. 5).

The petitioner is the biological father of twins born in 2019 through surrogacy. While one son, Mst. Lakshya Parghi, suffering from cerebral palsy, was with the petitioner, the other son remained with the grandmother since birth.

The petitioner argued that he and his wife were living together, financially stable, and capable of raising both children.

Disputes arose after the COVID-19 lockdown, leading to parallel proceedings. The petitioner initiated custody claims before the Family Court, while the grandmother lodged criminal complaints against him under provisions of the Bharatiya Nyaya Sanhita, 2023 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

The grandmother contended that the petitioner and his wife had initially declined custody of the twins, calling them a “burden,” and that she had raised the child since birth. She alleged that the petitioner was motivated by property disputes rather than the welfare of the child. Respondents also argued that since custody proceedings were already pending before the Family Court, the High Court should not exercise writ jurisdiction.

The Court, however, rejected these objections. Relying on the Top Court’s ruling in Tejaswini Gaud v. Shekhar Tiwari (2019) 7 SCC 42, Gohar Begam v. Suggi (AIR 1960 SC 93), and the recent decision in Gautam Kumar Das v. NCT of Delhi (2024 INSC 610), the Bench reiterated that unlawful detention of a child by anyone other than the natural guardian can justify habeas corpus.

The Court distinguished the reliance placed by the respondents on Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, observing that it dealt with custody disputes between estranged spouses and did not apply to the present case where both parents were together and seeking custody jointly.

The Bench stressed that the welfare of the child remained the paramount consideration, noting that custody cannot be denied on the basis of unsubstantiated allegations regarding the father’s financial or emotional incapacity.

Allowing the petition partly, the Court directed the Malad Police to secure custody of Mst. Lavya Parghi from the grandmother and hand him over to the petitioner within two weeks. At the same time, the Court provided visitation rights to the grandmother, permitting her to meet the child on weekdays between 9 a.m. and 6 p.m. for three months, subject to the child's schooling schedule.

The judges clarified that neither the petitioner nor his wife should create obstacles in facilitating these meetings and that both parties were expected to cooperate in safeguarding the child's best interests.

Concluding, the Court remarked that while some initial adjustment issues may arise, these would ease with time, and the continuity of the child’s schooling and extracurricular activities should remain undisturbed. In effect, the bench reinforced that natural guardianship cannot be displaced by extended family members unless the welfare of the child demonstrably requires it.

Case Title: Pravin Nathalal Parghi v. State of Maharashtra & Ors.

Bench: Justices Ravindra V. Ghuge and Gautam A. Ankhad

Date of Judgment: September 4, 2025