Magistrate Can Invoke BNSS Search Provision To Recover Child Forcibly Taken Away By Father: Bombay High Court

The Bombay High Court has held that a Magistrate can invoke the search provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS) to recover a child allegedly taken away by his father from the mother's custody by force.Upholding orders passed by a Magistrate in Malegaon directing the police to search the father's residence and subsequently restore the custody of the three-year-old child to the mother, the Court found that the Sessions Court had erred in interfering with those directions.Single-judge Justice Madhav Jamdar quashed and set aside a January 13, 2026 order passed by a Sessions Court in Malegaon, Nashik, which quashed the two orders of a Magistrate Court and ordered the woman to hand over the three year old son's custody to the father. While passing the impugned order, the sessions court had quashed and set aside two orders - November 28, 2025 and December 15, 2025 passed by Magistrate Court in Malegaon city. Notably, the Magistrate Court had on November 28, 2025 ordered a thorough search of the husband's house for the minor son as he had forcibly taken away the child at a gunpoint from the custody of his mother. On December 15, 2025, the father was ordered to hand over the child's custody to his wife. Aggrieved with these two orders, the husband petitioned the Sessions Court, which overturned the Magistrate's order. While hearing the appeal filed by the mother, Justice Jamdar noted that the two orders were passed by the Magistrate Court only after noting that the child, who was initially in the custody of the mother, was forcibly taken away by the father and that too on a gunpoint. However, the Sessions Court, did not consider this very aspect of the matter, Justice Jamdar noted. "Record, clearly shows that the husband/father forcefully took away the child from the custody of the mother by showing the revolver and confined him at another place. Thus, the impugned order dated January 13, 2026 passed by completely ignoring the said aspects is perverse and illegal. Considering the facts and circumstances, the Magistrate has passed the appropriate order by exercising the powers under Section 100 of Bharatiya Nagarik Suraksha Sanhita (BNSS). Thus, in the facts and circumstances, the Additional Sessions Judge should not have interfered in the order of the learned Magistrate," Justice Jamdar held. Further, the judge noted that the impugned order was already stayed by another single-judge of the High Court in February 2026 and as a consequent result, the child continues to be with the mother. Therefore, the judge now quashed and set aside the Sessions Court's order.Appearance:Advocates Aniket Vagal, Juhi Kadu and Savvy Kolhekar appeared for the Mother.Advocates Mahendra Sandhyanshiv and Vikas Mourya represented the Father. Additional Public Prosecutor SM Yadav represented the State.Case Title: SSNA vs SAAR (Criminal Application 213 of 2026)Citation: 2026 LiveLaw (Bom) 332Click Here To Read/Download Order

Magistrate Can Invoke BNSS Search Provision To Recover Child Forcibly Taken Away By Father: Bombay High Court

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Magistrate Can Invoke BNSS Search Provision To Recover Child Forcibly Taken Away By Father: Bombay High Court

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