MUMBAI: The Bombay high court has upheld custody of a child to his biological father, observing that once the mother had surrendered the child to the Child Welfare Committee (CWC), she could not raise any objection to it.
“Once respondent (mother) has surrendered the child; it is now not open for respondent to raise any objection in the present petition,” said Justices Revati Mohite-Dere and Gauri Godse in the September 15 verdict.
The father moved an habeas corpus petition to produce his child. In October 2021, he (19) and his pregnant girlfriend (17) eloped to Karnataka. Their child was born on November 26. On return to Mumbai, he was arrested on March 5, 2022 and booked for rape and under Pocso. The mother surrendered the child to the CWC (suburban II) and got married to another man. In December, CWC declared the child free for adoption. In January 2023, he was given in foster care. Following HC’s rap, the child was brought back and CWC on July 27 gave custody to his father.
However, advocate Flavia Agnes opposed custody to the father, saying it was a rape and Pocso case. She claimed to represent the mother, but the judges found no ‘vakalatnama’ filed on her behalf. “We thus express our displeasure at the manner in which the respondent (mother) is sought to be represented… in as much, it is not disputed that the respondent (mother) had surrendered the child and had moved forward in her life by getting married,” Justice Godse wrote for the bench.
Agnes argued the mother was only 16 years old and the relationship was never consensual. The petitioner forced himself on her, made her leave her parents, took her to a “strange place” in Karnataka and isolated her. On her parents’ missing complaint, she was traced. After she was counselled, she surrendered the child. Agnes said according to the mother, the petitioner is not a good father. The judges said the mother’s statement to the magistrate is “consistent” with the father’s case. She had stated that they were in love for three years, she got pregnant and fearing their parents, they eloped and were in Karnataka till they were brought back. “Ms Agnes was unable to point out any provision of law including JJ (Juvenile Justice) Act which would disentitle the father from getting the child’s custody,” they added.
Rejecting Agnes’ submissions as “baseless and irrational”, the judges noted that since birth and till his father’s arrest, the child was with him and the mother. The biological father had never surrendered or abandoned the child and, instead, he made all efforts to get his custody. “The petitioner being the biological father… there is no impediment in him being handed over the custody,” they concluded.
“Once respondent (mother) has surrendered the child; it is now not open for respondent to raise any objection in the present petition,” said Justices Revati Mohite-Dere and Gauri Godse in the September 15 verdict.
The father moved an habeas corpus petition to produce his child. In October 2021, he (19) and his pregnant girlfriend (17) eloped to Karnataka. Their child was born on November 26. On return to Mumbai, he was arrested on March 5, 2022 and booked for rape and under Pocso. The mother surrendered the child to the CWC (suburban II) and got married to another man. In December, CWC declared the child free for adoption. In January 2023, he was given in foster care. Following HC’s rap, the child was brought back and CWC on July 27 gave custody to his father.
However, advocate Flavia Agnes opposed custody to the father, saying it was a rape and Pocso case. She claimed to represent the mother, but the judges found no ‘vakalatnama’ filed on her behalf. “We thus express our displeasure at the manner in which the respondent (mother) is sought to be represented… in as much, it is not disputed that the respondent (mother) had surrendered the child and had moved forward in her life by getting married,” Justice Godse wrote for the bench.
Agnes argued the mother was only 16 years old and the relationship was never consensual. The petitioner forced himself on her, made her leave her parents, took her to a “strange place” in Karnataka and isolated her. On her parents’ missing complaint, she was traced. After she was counselled, she surrendered the child. Agnes said according to the mother, the petitioner is not a good father. The judges said the mother’s statement to the magistrate is “consistent” with the father’s case. She had stated that they were in love for three years, she got pregnant and fearing their parents, they eloped and were in Karnataka till they were brought back. “Ms Agnes was unable to point out any provision of law including JJ (Juvenile Justice) Act which would disentitle the father from getting the child’s custody,” they added.
Rejecting Agnes’ submissions as “baseless and irrational”, the judges noted that since birth and till his father’s arrest, the child was with him and the mother. The biological father had never surrendered or abandoned the child and, instead, he made all efforts to get his custody. “The petitioner being the biological father… there is no impediment in him being handed over the custody,” they concluded.
