1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2667 OF 2009 Ramesh Chhatrapati Patil & Ors. ... Petitioners. V/s. Smt. Manisha Sushant Patil @ Manish Ashok Patil & Anr. ... Respondents. Mr. Pankaj Das for the Petitioner. Mr. R.D. Suryawanshi for Respondent No.1. Ms. P.P. Bhosle, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 02 FEBRUARY 2010. P.C. :- Heard the learned Advocates for both sides. 2. The grand-parents of the minor child have approached this Court complaining that the learned Magistrate issued a search warrant and directed that custody of the minor child Sujal be handed over to the mother – Respondent No.1 before me. 3. It is argued on behalf of the grand parents that the learned Judge personally spoke to the child, saw his demeanour and behaviour so also the conduct in Court and in Chamber and stayed the operation of the order suo-motu. In such circumstances, when the child was reluctant to go to his mother and his welfare and interest is sufficiently protected by 2 the grand parents to whom he is attached, then the order under challenge should be set aside and this Writ Petition be allowed accordingly. 4. With the assistance of Mr. Das and Mr. Suryawanshi, I have perused the Petition and all annexures thereto. On prior occasions, I myself made an attempt to resolve the dispute between the Petitioners and the First Respondent by calling both of them in my Chamber together with their Advocates. It appears that the grand-parents although apparently do not object to the mother applying for custody, yet, it is their case that the child is reluctant to go with the mother. On the other hand, the mother has stated that if the child was never allowed to go and reside with her, then, naturally, the reluctance would be there. It is only after some time that the natural mother will be able to win-over the confidence of the child and in such circumstances, this Court should not interfere with the impugned orders. 5. It is common ground that the son of the Petitioners and the husband of the First Respondent expired on 27th January 2008. From the marriage between the deceased and the First Respondent, two sons viz. Parth and Sujal were born. Parth was two and half years old on the date of the application before the Trial Court whereas, Sujal is six years of age. It is alleged by the mother that after the death of the husband, she was not allowed to reside with her in-laws and in unfortunate circumstances, had to leave her matrimonial 3 home. She has stated that both Sujal and Parth are of tender age, require personal attention of their mother and both minors should be handed over to her. 6. When the Application was made and search warrant was issued, the Court did not find any resistance from Parth Sushant Patil but noticed that Sujal Sushant Patil had expressed desire to continue to reside with the grand-parents. Therefore, having satisfied himself that his welfare and interest require him to be handed over to the mother, yet, on his own the Magistrate stayed the order passed by him. However, the other son Parth is with the First Respondent. The order is stayed only to the extent of other son Sujal. In the Petition, the Petitioners do not challenge the order to the extent of handing over other son to the First Respondent. However, there are allegations and that is how, they say that the order should be set aside in so far as the son Sujal is concerned. 7. Having perused the concurrent orders under challenge, I am of the opinion that interest of justice would be served by directing that the custody of Sujal shall remain with the grant- parents – Petitioners till 30th April 2010 but the First Respondent shall have access to her as directed by the Trial Court in the order dated 24th July 2009. Save and except this modification, the order of the Trial Court is maintained. It is not interfered with also because it will be better for the minor Sujal to be with his mother in the longer run and considering 4 his future. It is in his interest and for his welfare that he stays with his mother and in the company of his brother Parth. In other words, although Petitioners shall be entitled to custody of child Sujal upto 30th April 2010, the child should be handed over to the mother – First Respondent every Saturday in the evening and should be collected from the house of the First Respondent the following day that is Sunday at 7.00 p.m. This arrangement to continue till 30th April 2010 after which period the custody of the child Sujal shall be handed over to the First Respondent in the presence of the concerned Magistrate, in the Court, which has delivered order dated 24th July 2009 and the further orders that is the Court of Judicial Magistrate, First Class, Kalyan. Petition disposed off. (S.C. DHARMADHIKARI,J.)