The Bombay High Court, comprising Justices Sarang V. Kotwal and S.M. Modak, has dismissed a habeas corpus petition filed by Sahil Raju Gilani seeking custody of his minor daughter from her mother. The Court held that religion is not the decisive factor in determining custody and emphasised that the paramount consideration remains the welfare of the child.
Background of the Case
The petitioner, Sahil Raju Gilani, approached the Court seeking a writ of habeas corpus, alleging that his wife (Respondent No.2) had unlawfully retained their three-year-old daughter in New Delhi. According to the petitioner, the child had been residing with him in Mumbai, was enrolled in a school there, and had all important documents bearing the Mumbai address. He alleged that the respondent clandestinely moved the child under the pretext of visiting her father and refused to return.
The petitioner further stated that the respondent, a U.S. citizen living in India with an expired PIO card and pending litigation regarding her immigration status, did not have permanent roots in India due to her erratic lifestyle as a fashion stylist and influencer requiring frequent travel.
During this period, the mother instituted proceedings before the Additional District Judge, Saket, New Delhi, seeking relief regarding the child’s passport and residence. An ex parte injunction was granted, later stayed by the Delhi High Court. Separately, the mother filed a petition under Sections 7, 10, and 13 of the Guardians and Wards Act, 1890 before the Family Court at Saket, New Delhi.
Submissions of the Parties
Senior Advocate Aabad Ponda, appearing for the petitioner, contended that under Mahomedan Law, particularly Sections 352 and 354, the mother’s right to custody could be forfeited if she resided at a distance from the father’s residence during the subsistence of marriage. He argued that the respondent had lost her right to custody under these provisions. He relied on several judgments, including Athar Hussain v. Syed Siraj Ahmed and Others [(2010) 2 SCC 654], Gohar Begam v. Suggi alias Nazma Begam and Others [AIR 1960 SC 93], and Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67] to support the maintainability of the habeas corpus petition.
In response, Senior Advocate Harish Salve, appearing for the mother, raised a preliminary objection regarding the maintainability of the habeas corpus petition. He submitted that custody with one natural parent could not be termed unlawful and that the petitioner had an effective alternate remedy under the Guardians and Wards Act, 1890. Mr. Salve emphasised that the welfare of the child must be the paramount consideration and referred to the judgments of Nithya Anand Raghavan v. State (NCT of Delhi) [(2017) 8 SCC 454] and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu [(2023) 12 SCC 472].
Court’s Analysis
The Court extensively referred to the Supreme Court’s ruling in Nithya Anand Raghavan, reiterating that in habeas corpus petitions concerning child custody, if the minor is in the custody of a natural guardian, it must be presumed to be lawful. Only in exceptional circumstances should the custody be disturbed.
Referring to Section 17 of the Guardians and Wards Act, 1890, the Court noted:
“The Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor.”
However, the Court clarified that while religion is one of the considerations, it is neither a decisive nor overriding factor. The Court specifically observed:
“The religion of a party is not the only consideration before the Court in such cases for consideration of the welfare of the child. The religion of the minor is only one of the considerations, but it is not a decisive overriding factor. It is only one of the many factors which the Court has to consider as to what is for the welfare of the minor. In our opinion, for a three year old girl child, being in the custody of her mother would be for her welfare.”
The Court further held that no material had been placed to show that custody with the mother would be harmful to the child. It rejected the petitioner’s contention that the respondent’s lifestyle or travel obligations were sufficient to alter custody at the interim stage.
The Court reaffirmed that the appropriate forum to adjudicate custody disputes is under the Guardians and Wards Act, 1890, through a substantive proceeding and not by invoking the extraordinary jurisdiction of habeas corpus, especially when there is no allegation of unlawful custody.
Decision
Concluding that no relief could be granted in the habeas corpus petition, the High Court dismissed the petition. However, in view of interim protection previously granted, the Court extended the prohibition against removal of the child from India for a further period of 60 days to allow the petitioner to approach the competent forum for appropriate relief.
