The Gujarat High Court, in a recent ruling, dismissed a Pakistani father’s petition seeking custody of his minor son based on concerns of nationality and cultural preservation. The court held that without concrete evidence of illegal detention or harm, cultural and national identity alone are insufficient grounds to justify habeas corpus relief in child custody cases. The judgment, delivered by Justice Sangeeta K. Vishen and Justice Sanjeev J. Thaker, came in the case of Kutbuddin Inayat Mithiborwala (Power of Attorney Holder for Aamir Ali Asghar) vs. State of Gujarat & Others, Special Criminal Application No. 14406 of 2024.
Case Background
The petitioner, Kutbuddin Inayat Mithiborwala, acting as the power of attorney for Aamir Ali Asghar, a Pakistani national, filed the habeas corpus petition to obtain custody of four-year-old Azlaan Aamir Ali Asghar. The boy’s father, Aamir Ali Asghar, alleged that the child’s mother, identified as Respondent No. 4, had brought their son to India from Pakistan in September 2024 and intended to keep him away from his father and Pakistani cultural values. The petitioner argued that Respondent No. 4’s actions amounted to illegal detention, warranting immediate intervention and the issuance of a habeas corpus writ.
The petitioner’s counsel, Mr. D. M. Ahuja, asserted that Respondent No. 4’s refusal to return Azlaan to Pakistan could have detrimental effects on the child’s cultural identity and upbringing. He highlighted that a separate Guardian and Ward Application had been filed in the Family Court of Karachi for permanent custody, but procedural barriers prevented the father from serving notice to the mother, who is currently in India on a tourist visa valid until November 6, 2024.
Legal Arguments and Observations by the Court
The court’s deliberations focused on whether cultural and national identity concerns could form a valid basis for a habeas corpus writ in custody disputes. On behalf of the State, Assistant Public Prosecutor Ms. Jirga Jhaveri argued that Respondent No. 4, being the child’s biological mother, held lawful custody in the absence of any judicial order granting custody to the father. Jhaveri emphasized that habeas corpus is reserved for cases of clear illegal detention, which was not substantiated in this instance.
Justice Vishen, delivering the oral order, noted that the petitioner did not present evidence proving that Azlaan’s welfare was compromised under his mother’s care. The court further remarked:
“The minor Azlaan, aged 4 years, is in the custody of his mother and hence, it is difficult to believe that the welfare and best interest of the child is at stake.”
The court underscored that the habeas corpus petition cannot rest on “bare assertions about nationality, culture, and values” and that the child’s welfare, which is paramount, appeared secure under the mother’s guardianship.
Reference to Precedent and Decision
Justice Vishen referenced the Supreme Court’s ruling in Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu (2022), wherein habeas corpus relief was granted based on an existing custody order. In contrast, no such order favored the petitioner in this case, reinforcing the court’s stance that the father’s claims of “illegal detention” could not be upheld on the basis of nationality alone.
With these observations, the court concluded that the petition lacked the evidentiary basis to justify habeas corpus relief, dismissing it outright.
