A Matter of Life and Law: Bombay High Court Steps In to Ensure Child’s Heart Surgery

In a sharp rebuke of judicial indifference, the Bombay High Court (Aurangabad Bench) has intervened to prioritize the life-saving medical needs of a toddler over bureaucratic delays. Justice Rohit W. Joshi, presiding as a vacation judge, took the extraordinary step of quashing a lower court order that had denied an urgent hearing for child custody, despite the toddler’s impending open-heart surgery.

The Conflict of Care

The case involves a child, born in September 2023, who requires urgent open-heart surgery, tentatively scheduled for the first week of June 2025. The child’s father, the petitioner (S G), moved for interim custody to ensure the child could receive this critical medical intervention.

Despite presenting medical certificates from the MGM’s Medical Centre & Research Institute confirming the gravity of the surgery, the father’s request to have the matter "taken on board" by the District Judge-2 and Additional Sessions Judge, Kaij, was summarily rejected. The lower court reasoned that, as it was the summer vacation period, there were no "urgent grounds" to hear a custody dispute—a decision the High Court later characterized as "unbecoming of any judge."

Arguments and Judicial Apprehension

The complexity of the dispute was compounded by the opposition from the child’s mother (N S). Even though she acknowledged that the child indeed required surgery, she opposed the father’s plea for interim custody.

Justice Joshi expressed deep concern over the "shocking" conduct of both the trial judge and the respondent-mother. After verifying the medical necessity directly with the hospital staff, the High Court emphasized that the welfare of the child must override procedural convenience.

Key Observations

The High Court’s ruling underscored the responsibility of the judiciary to act in the best interest of the child:

• On the Lower Court's Inaction: “It appears that in serious matter like this where a child of less than two years of age was required to undergo an open heart surgery, the learned Judge has not deemed it appropriate to take the case on board... The conduct of the learned judge to say the least, is unbecoming of any judge.”
• On the Respondent's Stance: “Equally shocking is the conduct of the respondent – mother, who is opposing the prayer for interim custody, despite specifically admitting that the child is required to undergo the said operation.”
• On the Priority of Medical Needs: “Having regard to the urgency in the matter, the application for interim custody of the child filed in the said proceeding is allowed.”

The Court’s Decree

In a decisive order, Justice Joshi set aside the trial court’s dismissal. The High Court directed that the mother place the child in the father’s custody on May 28, 2025, specifically to facilitate the surgery in Aurangabad.

Importantly, the Court balanced this move with the interest of the mother:

1. Continuous Access: The father must grant the mother "continuous access" to the child while the child remains in his custody.

2. Accountability: Following the surgery, the father is mandated to file an affidavit accompanied by medical documentation to confirm that the procedure was performed as scheduled.

3. Future Re-evaluation: Post-surgery, the custody arrangement remains subject to further medical advice, particularly given the geographical distance between the parents.

This case serves as a stark reminder that legal formalities, particularly during vacation periods, must never obstruct the fundamental right to healthcare and the overarching principle of the "welfare of the child."