Bombay High Court
ISHWARYA DAMODAR KAKULEversusPARAM SHANTARAM ZANZAL
- Disposal
- Disposed of
Holding
The Court held that the interim custody application must be heard expeditiously and granted temporary visitation rights to the mother, without staying the order.
Summary
The petitioner, a mother of a four‑year‑old child, filed a writ petition seeking an order that her interim custody application pending before the Judicial Magistrate First Class, Mapusa be heard expeditiously, along with visitation rights. She alleged that the respondent had denied her access to the child for eight months and that settlement talks had collapsed. The respondent contended that the High Court should not interfere with the pending DVA proceedings, argued there were no grounds to expedite the matter, and raised allegations of the petitioner's mental instability. The Court examined whether the High Court could direct an expedited hearing and grant interim visitation despite the pending lower‑court proceedings. Finding that the child’s welfare required regular contact with the mother and that no substantive evidence supported the respondent’s allegations, the Court ordered the lower court to decide the interim application promptly and directed temporary custody on specified days, disposing of the writ petition.
Issues considered
- Whether the High Court can intervene to expedite the interim custody application pending before the Judicial Magistrate.
- Whether the petitioner qualifies as an aggrieved person entitled to interim relief under the child‑welfare considerations.
- Whether allegations of the petitioner's mental health affect the grant of interim custody.
- Whether the Court may prescribe interim visitation and custody arrangements pending final determination.
Subjects
- child custody
- interim relief
- family law
- child welfare
- visitation rights
- expeditious hearing
- domestic violence proceedings
Judgment
2026:BHC-GOA:1664 Ishwarya Damodar Kakule.
vs.
Param S. Zanzal.
__________________________________________________
WPCR.322/2026
Siddhi
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITON NO. 322 OF 2026
ISHWARYA DAMODAR KAKULE …PETITIONER
~ VERSUS ~
PARAM S. ZANZAL …RESPONDENTS
A PPEARANCES :
For the Petitioner. Ms. Vijeta Poulekar and Ms. Caroline
Collasso.
For the Respondent. Ms. Ashwini Agni, Mr. Aadarsh Kothari
(Through V.C.) and Ms. R. Bhatkar.
CORAM : AMIT S. JAMSANDEKAR, J.
RESERVED ON : 07th August 2026.
PRONOUNCED ON : 18th August 2026
ORDER
1. By the present petition, a mother of a four-year-old child is
seeking an order and direction that her application for interim
custody of her 4-year-old son be heard expeditiously. The interim
application has been made by the Petitioner in Case No.
DVA/23/2026 pending before the Judicial Magistrate, First Class B
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Court (JMFC) at Mapusa, Goa. In the alternative, the Petitioner
seeks daily visitation and weekend custody of the child.
2. It is submitted that the Petitioner has not been given custody of the
child for almost 8 months.
3. The prayers are made by the Petitioner in the peculiar situation. The
DVA proceedings are filed by the Petitioner on 13/05/2026. Prior
thereto, admittedly, there were settlement talks between the
Petitioner and the Respondent. A meeting was held on 23/05/2026
to amicably resolve the disputes between the Petitioner and the
Respondent. Pursuant thereto, on 23/05/2026, gold was exchanged,
and the terms were agreed upon. However, it is submitted on behalf
of the Petitioner that in the first week of June 2026, the settlement
failed after the change of the Respondent’s lawyer.
4. Thereafter, the Petitioner filed the custody petition on 15/06/2026.
On 23/06/2026, the Respondent appeared in the proceedings.
However, the Respondent did not file a reply in the proceedings
before the learned JMFC. According to the Petitioner, the delay is
being caused due to non-filing of the reply. It is submitted that just
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because the matter was adjourned and kept on 03/09/2026, there was
no reason for the Respondent not to file a reply.
5. The Petitioner has not met the child for more than 8 months, and the
Respondent has not granted the Petitioner access to meet the child.
It is submitted that she has occasionally seen him and met him for a
while outside his school. After filing of the petition, on 06/08/2026,
the Respondent has filed his reply in the DVA proceedings. However,
till date he has not filed any reply to the interim application filed by
the Petitioner. According to the Petitioner, non-filing of a reply to the
interim application is causing delay.
6. It is submitted on behalf of the Petitioner that the Respondent has
intentionally not given access to the child. The child is systematically
being kept away from the Petitioner by abusing the process of law.
The Respondent has thrown away the Petitioner out of the
matrimonial house.
7. In support of the submission, the learned counsel for the Petitioner
has relied upon the following judgments:- (i) Dr. Ambula Manoj v.
Ambula Bhavana and Anr., Criminal Petition No. 4966 of 2009 (Andhra Pradesh
High Court, decided on August 26, 2009); (ii)Anju Sharma v. State of
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Haryana and Ors., 2024 Supreme(P&H) 543; (iii)Caarmen
Mergulahao Vs. Alexander Mergulaho (Civil Revision Application
No: 43/1997-High Court of Bombay at Goa), (iv)Gaurav Nagpal Vs.
Sumedha Nagpal, (2009)1 SCC 42; (v) Mast. Atharva & Anr. Vs.
State of Uttar Pradesh & Ors., 2020 SCC OnLine ALL 2033; (vi)
Neelu Talotra Vs. State of Punjab & Ors., Criminal Writ Petition
7646/2024; 2024 Supreme (P&H) 1210 (vii) Panchal Zalakben Vs.
State of Gujrat, R/Special Criminal Application No. 12669 of 2021 (High
Court of Gujarat). (viii) Rajni Vs. Sunit Chhabra, 2012 SCC ONLine
P & H 3310; (ix) Rosy Jacob Vs. Jacob Chakramakkal (1973) 1
SCC 840; (x) Roxann Sharma Vs. Arun Sharma, (2015) 8 SCC 318.;
(xi) Senthil Kumar Vs. Sunitha, 2010 SCC OnLine Mad 5990; (xii)
Karuppannan Vs. Sudhamathi, 1993 SCC OnLine Mad 175,
Kaliappa Goundan Vs. Valliammal, 1949 SCC OnLine Mad 10 and
(xiii) Veena Agarwal Vs. Prahlad Das Agarwal, 1975 SCC OnLine,
MP 59.
8. On the contrary, it is submitted on behalf of the Respondent that this
Court cannot get into any aspect of the matter which is covered by
the DVA proceedings and the interim application pending before the
learned JMFC. It is submitted that this Court should not exercise any
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jurisdiction. It is further submitted that the Petitioner has not made
out any ground for expediting the pending application before the
JMFC and no priority should be given to the Petitioner when other
matters are already pending before the learned JMFC. It is submitted
that there are so many other matters where hearing is expedited and
the learned JMFC is burdened with urgent and regular pending work
in other matters. Therefore, this matter should not be expedited.
9. In any case, it is submitted that the proceedings cannot be expedited
only because the child is four years old. There are no grounds to
expedite the hearing, and the DVA proceedings are without basis and
frivolous. Further submission is that the child is in the sole custody
of the father for more than eight months and he is taking care of the
child since the birth of the child. It is also submitted that if the interim
custody is given to the Petitioner now, then the sole custody
application filed by the Respondent shall become infructuous. It is
submitted that DVA proceedings are not maintainable solely in view
of the fact that the Petitioner has not prima facie established that the
Petitioner is an aggrieved person.
10. It is further submitted on behalf of the Respondent that the Petitioner
is not mentally stable and is suffering from mental health issues.
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Allegations are made by the Respondent in DVA proceedings filed
by the Respondent. Even in the affidavit in reply in the present
proceedings, allegations are made that the family members of the
Petitioner have committed suicide and that fact was suppressed by
the Petitioner from the Respondent. In view thereof, it is submitted
that it is not safe to give the custody of the child to the Petitioner.
11. In view thereof, the submissions are made that the custody be given
solely to the Respondent. In support, the Respondent has relied upon
the following citations: (i) Selvaraj v. Revathi, 2023 INSC 1054
(Supreme Court of India, decided on 6 December 2023). (ii) Tejaswini
Gaud Vs. Shekhar Jagdish Prasad Tewari, AIR 2019, SC 2318.
12. However, the Petitioner has denied all the allegations made by the
Respondent and, particularly, that the Petitioner has mental issues.
13. I have heard Ms. Poulekar for the Petitioner and Ms. Agni for the
Respondent and have considered the record.
14. At this stage, I am not getting into the rival allegations in respect of
the matrimonial disputes. I am concerned in these proceedings only
with the expedited hearing of the Petitioner's interim application and
the grant of interim relief in respect of visitation rights, etc.
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15. It is admitted that the child is 4 years old, and the Petitioner has not
had custody of the child for almost 8 months. The Respondent has
retained sole custody of the child. Admittedly, settlement talks
between the parties have failed. The Petitioner is the biological
mother of the child. It is not in the welfare of the child that he has
had no access to his biological mother for so long, particularly when
the child is only four years old. The child should have access to his
mother and the rights ought to be decided by the learned JMFC at
the earliest. I do not find any substance in the submissions made on
behalf of the Respondent that no priority should be given to the
application of the Petitioner. At this stage, I am also not commenting
on the allegation in respect of the mental health of the Petitioner
because there is nothing on record except mere allegations. Further,
there is nothing on record to establish that the Petitioner has harmed
the child in the past. Admittedly, the Petitioner is the medical
practitioner. Prima facie, I am satisfied that the Petitioner is delaying
the proceedings to retain sole custody of the child.
16. Considering these facts, I am inclined to pass the following order.
i) The Respondent shall file his reply to the application
(case No: DVA/23/2026) or any interim application
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therein within a period of one week from today.
Rejoinder, if any, shall be filed by the Petitioner
within a period of one week thereafter. No further
time shall be granted to the Petitioner or the
Respondent to complete pleadings for the purpose
of the interim application;
ii) The Judicial Magistrate First Class, 'B' Court at
Mapusa, Goa is ordered and directed to decide the
interim application filed by the Petitioner seeking
custody of her child in case No: DVA/23/2026
within a reasonable time;
iii) No adjournment applications shall be made by the
Petitioner or the Respondent;
iv) The learned JMFC, after considering the record and
submissions of the parties, shall pass appropriate
orders on the interim application of the Petitioner;
v) During the pendency of the hearing and final
disposal of the interim application before the learned
JMFC, the Respondent is ordered and directed to
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give sole custody of the child to the Petitioner on
every Thursday (beginning from 20.08.2026) at 4
p.m. until Monday at 10 a.m. On every Monday, the
Respondent shall pick up the child from the
residence of the Petitioner at 10 a.m. and drop the
child back at the residence on every Thursday at 4
p.m.;
vi) Liberty to apply to the Petitioner if the directions in
(v) above are not followed or breached by the
Respondent.
17. The Petition is disposed of in the above terms.
18. Costs in the cause to be decided by the learned JMFC while disposing
of the interim application of the Petitioner.
[AMIT S. JAMSANDEKAR, J.]
ORDER CONTINUED
19. At this stage, the learned Advocate for Respondent seeks a stay of the
order for a period of two weeks.
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20. Considering that the Petitioner has not had custody of the child for
the period of eight months, the request made by the learned counsel
on behalf of the Respondent cannot be accepted.
21. Further, prima facie, I have arrived at a finding that the intention of the
Respondent appears to be to retain custody of the child. The request
made on behalf of the Respondent is, therefore, rejected.
22. This order will be digitally signed by the Private Secretary/Personal
Assistant of this Court. All concerned will act on production by fax
or email of a digitally signed copy of this order.
[AMIT S. JAMSANDEKAR, J.]
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Signed by: SHAKUNTALA ZALMI August 18th 2026
Designation: Personal Assistant
Date: 19/08/2026 15:51:49
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