JUDGMENT (PER: GAUTAM A. ANKHAD, J.)

1. Rule. Rule is made returnable forthwith and the matter is heard finally with the consent of the parties.

2. The Petitioner is the biological father of 5-year-old twins. Respondent No. 5 is the mother of the Petitioner, and Respondent Nos. 6 to 8 are the sisters of the Petitioner. One son (Mst. Lakshya Parghi) is in the custody of the Petitioner, whereas the other (Mst. Lavya Parghi) is admittedly in the custody of Respondent No. 5.

3. The present Petition seeks a Writ of Habeas Corpus directing Respondent No. 4 (Police) to procure the custody of the Mst. Lavya Parghi from Respondent No.5 and hand him over to the Petitioner.

4. The facts in a nutshell are as follows:-

(i) The Petitioner is presently working as a ‘Mukadam’ at the P/North Ward office of the Municipal Corporation of Greater Mumbai (MCGM). His job was secured a few years ago with MCGM under a retirement-linked preferential employment scheme availed by the Petitioner through Respondent No. 5, who was a former employee of MCGM.

(ii) The Petitioner was married on 6th December, 2014 and the twins were born on 12th November, 2019 to the Petitioner and his wife through surrogacy. The twins had health complications at birth. It was then agreed by the Petitioner that Mst. Lavya Parghi would stay under the care of Respondent No.5 (his mother). After the lockdown imposed under COVID-19 pandemic eased, several disputes arose between the Petitioner and his parents. This resulted in:

a) The Petitioner filing Case No. 106/D/2023 before the Family Court under Section 25 of the Guardians and Wards Act, 1890, against his father (now deceased) for obtaining custody of his minor son. The Petitioner has also filed Petition No. D/51/2025 in the Family Court seeking custody of child; and

b) Respondent No.5 filing FIR No. 841/2024 with the Malad Police Station under Sections 115(2), 126(2), and 352 of the Bharatiya Nyaya Sanhita, 2023 and Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, against the Petitioner and his brother.

The Family Court proceedings are pending. It is an admitted position that Respondent No. 5 has informed the Family Court that the Petitioner’s son resides with Respondent No. 5 at their residence.

(iii) Between 7th and 20th February 2025, the parties exchanged legal notices inter-alia on the custody of the child. The Petitioner also filed several complaints before the police, including on 3rd, 10th and 19th March 2025 requesting for their intervention in the custody dispute.

(iv) As Respondent No. 5 has refused to hand over the custody of the child, the present petition has been filed.

5. We have heard Ms. Rolland, learned advocate for the Petitioner, Mr. Sonavane, learned APP for Respondent Nos. 1 to 4 and Ms. Bangera learned advocate for Respondent Nos. 5 to 8.

6. Ms. Rolland submitted that there is no marital discord between the Petitioner and his wife. As the biological father and natural guardian, the Petitioner and his wife have a rightful claim to the custody of their son. He is gainfully employed and fully capable of ensuring his care and well-being. She further contended that the twins should not be separated at the instance of Respondent Nos. 5 to 8. The allegations of Respondent No. 5 regarding the Petitioner’s inability to look after the child’s health and welfare are unfounded. The son ought to be reunited with his biological parent and twin brother. Respondent No. 5 has no superior right in law to retain custody over the biological father. It was further submitted that a writ of Habeas Corpus can be exercised in exceptional circumstances even if the custody proceedings are pending. Reliance was placed on the judgments of the Hon'ble Supreme Court in Tejaswini Gaud vs. Shekhar Tiwari (2019) 7 SCC 42 and Gautam Kumar Das vs. NCT of Delhi (2024 INSC 610) in support of the above submissions.

7. Ms. Bangera and Ms. Racheeta Dhuru, learned counsels for Respondent Nos. 5 to 8, opposed the submissions