Mumbai: Terming it as “baseless and irrational”, the Bombay High Court has rejected the objection raised by a woman in handing over her love child to the biological father alleging that he is facing a case under the Protection of Children from Sexual Offences Act (POCSO) since she was a minor when they were in a relationship, hence he would not be a “good father”.
A division bench of Justices Revati Mohite-Dere and Gauri Godse disposed of the habeas corpus (produce person in court) petition filed by the man seeking custody of the child which the woman had abandoned.
Background of the case
The man, 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 man 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 and married another man.
When the man was in custody, his parents made an application for the child’s custody, however, they did not receive any reply.
Hence, the man approached the HC which directed the CWC to positively consider his application. The child was then handed over to the father by the CWC.
Adv: Man arrested under POCSO cannot be a 'good father'
At the time, advocate Flavia Agnes, appeared before the HC contending that she was appearing on behalf of the woman to oppose the handing over of the child to the biological father. She submitted that since the man was facing charges under POCSO, he would not be a “good father”.
The court noted that since the woman had surrendered the child, married another man, and moved on in life, it had not issued a notice to her to reply to the petition. Even the man had not served a private notice to the woman.
“Hence, a specific query was made to Agnes as to the source of knowledge of the present proceedings to respondent no.3; however, Agnes was unable to give any satisfactory response,” the court said.
“Thus, the submissions made by Agnes are baseless and do not appear to be true. Even otherwise, once respondent no. 3 has surrendered the child; it is now not open for respondent no. 3 to raise any objection in the present petition,” the court underlined.
The bench also took note of the fact that the man and his parents “made all possible efforts to get back the custody of the minor child”.
The petitioner made all possible efforts to gain custody of child
“The petitioner who is the biological father of the child had never surrendered or abandoned the child. Instead, had made all possible efforts to get custody of the child… The petitioner being the biological father of the minor child, there is no impediment in him being handed over the custody of the minor child in the peculiar facts and circumstances of the present case,” the court said.
It concluded, “... we find that the submissions made by Agnes deserves to be rejected, the same being baseless and irrational.”