Welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another: Bombay High Court

The Bombay High Court determined that a child’s access to a non-custodial parent takes critical relevance through the Bench of Justices N.J. Jamadar and S.S. Shinde in the case of Abhinav Kohli v. State of Maharashtra (Criminal WP No. 225 of 2021)


The wife of the petitioner, respondent 2, is accused of illegally preventing the petitioner’s son from seeing him, leading to the filing of a petition for a writ of habeas corpus and the immediate transfer of custody of the son to the petitioner. Respondent 2 reportedly obstructed the petitioner from meeting the son due to marital strife, endangering the son’s willingness and happiness. Even though the petitioner made efforts to contact the son, the respondent filed fabricated and malicious reports against him.

Even after the son contracted COVID-19, respondent 2 sent him to the petitioner’s home, where the petitioner nursed and looked after the boy. Nevertheless, the son resisted leaving the house with respondent 2. The son and respondent 2 fled, and despite the petitioner’s best efforts, he was unable to find respondent 2. 

In light of the aforementioned context, the petitioner approached the court. of her little son. In contrast, the petitioner had made the decision to forgo all professional obligations in favor of giving his son his full time, attention, and effort.


The High Court noted in its analysis of the case that it is not an immutable rule of law that a parent’s request for a writ of habeas corpus cannot be maintained while the child is in the custody of another parent unless that custody is expressly illegitimate or unconstitutional. The Court further stated that, if the best interests of the child need it, the writ of habeas corpus may be used to award custody of a child to a husband. The welfare of the minor is the main factor to take into account when deciding who should have custody of a minor child, not the parents’ legal, statutory, or customary rights.

The court ruled that Section 6 of the Hindu Minority and Guardianship Act, 1956, which states that in the case of a boy or an unmarried girl, the father is the natural guardian, followed by the mother, and that custody of a minor under the age of five is typically with the mother, recognizes the aforementioned rule.

Regarding the current facts and circumstances, the Court stated that it is crucial to remember that the “welfare principle” cannot be casually disregarded when considering the age of the son since tender year norms, which have statutory validity, get attracted.

The Court holds that the welfare of the child cannot be decided solely by one parent’s employment obligations and another’s availability for quality time with the child.  The High Court determined that there were no exceptional circumstances that called for a deviation from the “tender years rule” or that the mother’s custody of the son was harmful to his welfare and development in light of the facts and circumstances of the case. Finally, the Court concluded by stating that the minor son requires the love, care, and protection of both the petitioner and respondent 2.

According to the High Court, allowing a father to physically see his son at least twice a week is vital for his development. The present petition was dismissed with a directive that the petitioner’s minor son has daily access via video conference for 30 minutes and physical visitation once every two weeks.

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