Nagpur bench lets child stay with Kalaburagi couple, says trafficking case alone is no ground to separate them

The Nagpur bench of the Bombay High Court has ruled that a child need not be removed from the couple raising him only because a criminal case alleging his sale and human trafficking is pending against them. The boy will continue to live with the couple in Kalaburagi, Karnataka.

Justice Mehroz Pathan rejected the revision petition filed by the state government. The judge observed that when the future of a child is being decided, the child's welfare, emotional condition, present surroundings and overall best interests have to be weighed together. The court gave particular importance to how the boy lives today, the bond he shares with the couple and the care he gets from them. It added that it would not be right to decide the matter purely because a case has been registered against people connected with the child.

The child was born on September 6, 2021, at a medical hospital in Nagpur. Ten days later, on September 16, 2021, a notarised document concerning his adoption was prepared between his biological mother and the couple.

Around that time, allegations of a money transaction surfaced. It is alleged that a woman named Rajshree (spelt Rajshri in some accounts of the case) bought the infant for Rs 1 lakh and then sold him on to the couple. Acting on this alleged transaction, the police registered a case of human trafficking. As the investigation went on, the couple, who had the child in their care, were also named as accused.

Once the matter came to light, the Child Welfare Committee placed the boy in the Shraddhanand Orphanage in Nagpur. The question of who should have his custody then led to legal proceedings, which eventually reached the courts.

On February 10, 2023, the sessions court, after hearing the dispute, directed that the boy be handed over to the same couple. The state government objected to this order and approached the High Court in revision. It questioned how proper it was to give custody to a couple facing a serious charge such as human trafficking.

The High Court framed the issue as whether the child should be kept away from the couple on that ground alone, while the case over his alleged sale remains undecided. Examining every aspect, it concluded that the choice of who should have the child cannot rest solely on the registration or pendency of a criminal case. The real interests and circumstances of the child must also be looked at.

In the course of the hearing, the judge spoke to the boy himself. He seemed at ease and happy in the company of the couple. The court also noted that he currently attends school in Kalaburagi and that the couple are looking after him properly. It took into account his emotional attachment to them, his present school environment and the upbringing he is receiving.

In these circumstances, the court held, taking him away from his current surroundings at this stage would not serve his interest. Giving weight to his emotional security and a stable life, it upheld the sessions court order. With the state's petition dismissed, custody stays with the couple in Kalaburagi for now.

The High Court also made a legal point clear. Its remarks and findings on custody will have no bearing on the criminal trial against the couple. The trial court will separately examine the charges of human trafficking and the alleged buying and selling of the child, and will decide them on the evidence before it and in accordance with law.

Advocate Atul Pande appeared for the couple.

The ruling underlines that the interest of the child comes first. Even where a grave criminal case is pending, a court deciding custody must separately consider the child's emotional well-being, safety and present living conditions.