In Sahil Raju Gilani v/s The State of Maharashtra & Another., the Bombay High Court recently dismissed a Habeas Corpus petition filed by a father seeking the return of his minor daughter, 'S', from the mother's custody. While acknowledging the father's concerns, the Court emphasized the paramount consideration of the child's welfare and directed the petitioner to pursue substantive remedies under the Guardians and Wards Act, 1890.
Background of the Dispute:
The petitioner, the father of the 3-year-old girl, sought a writ of Habeas Corpus, claiming his wife, Respondent No. 2, had clandestinely taken their daughter from Mumbai to New Delhi. He also requested an interim order preventing the mother from taking the child out of India and ensuring his access to her.
The mother, born in Pakistan, became an Indian citizen in 1995 but later became a US National in 2007. She currently resides in India with an American Passport and an expired PIO card, with her OCI application having been rejected. The petitioner highlighted her frequent travel due to her profession as a fashion stylist and social media influencer, arguing she lacked "concrete roots in India."
The daughter was born in Mumbai in April 2022 and resided there until January 2024, attending a school with fees paid by the father until July 2026. Her passport, Aadhaar, and PAN card also reflect the Mumbai address. The father alleged the mother took the child to New Delhi under the pretext of visiting her father, subsequently sending a legal notice for marital dispute resolution.
Legal Proceedings and Arguments:
Before the High Court, the mother had already initiated a civil suit in Delhi, seeking a permanent injunction against the father entering her New Delhi property, and requesting the daughter's passport be handed over to her or a new one issued without the father's objection. The Delhi Court initially granted an ex-parte injunction in her favor regarding the passport, which was later stayed by the Delhi High Court. Furthermore, the mother had also filed a petition under Sections 7, 10, and 13 of the Guardians and Wards Act before the Family Court in Saket, New Delhi, which had restrained the father from forcibly removing the child from her custody.
Mr. Aabad Ponda, learned Senior Counsel for the Petitioner-father, argued that the father had been the primary caregiver, and the mother's erratic lifestyle meant she couldn't provide adequate care. He expressed apprehension that the child might be taken to the USA permanently. Relying on Mahomedan Law (Sections 352 and 354), Mr. Ponda contended that the mother, by residing at a distance from the father's residence, had lost her right to custody. He cited judgments like Athar Hussain V. Syed Siraj Ahmed and Yashita Sahu Versus State of Rajasthan to support the maintainability of a Habeas Corpus petition in such cases and the father's guardianship rights.
Mr. Harish Salve, learned Senior Counsel for Respondent No. 2-mother, raised a preliminary objection, asserting that a Habeas Corpus petition is not maintainable when the child is in the lawful custody of one parent. He emphasized the "welfare of the child" as the paramount consideration and argued that the father had an effective alternate remedy under the Guardians and Wards Act, 1890, which the mother had already invoked. He cited Nithya Anand Raghavan Versus State (NCT of Delhi), Rajeswari Chandrasekar Ganesh Versus State of Tamil Nadu, and Yashita Sahu Versus State of Rajasthan to bolster his arguments.
Court's Reasoning and Conclusion:
The High Court meticulously considered the arguments and reviewed relevant precedents, particularly Nithya Anand Raghavan's case, which states: "In a habeas corpus petition... the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person... it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful."
The Court noted that the child is barely 3 years old, and ordinarily, the custody of a young girl child should remain with the mother unless there are compelling reasons to suggest it would be harmful to the child. No such material was presented to indicate harm to the child if she remained with her mother. The Court reiterated that Indian Courts are strictly governed by the Guardians and Wards Act, 1890 for custody issues.
Addressing the reliance on Mahomedan Law, the Court referred to Section 17 of the Guardians and Wards Act, which mandates that the court, while appointing a guardian, shall be guided by "what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor." It further clarified that the "religion of the minor is only one of the considerations, but it is not a decisive overriding factor."
The High Court underscored that the welfare of the child is the paramount consideration and that disputes requiring elaborate evidence and consideration of various provisions are best handled under the Guardians and Wards Act. Since the mother had already initiated proceedings under this Act in the Family Court in Delhi, that forum is the appropriate one to decide all these issues.
While dismissing the Habeas Corpus petition, the Court acknowledged the interim order passed on June 18, 2024, which restrained the mother from removing the child from India. This ad-interim relief was extended for a further period of 60 days to provide the father a reasonable opportunity to approach the appropriate court for custody of his minor daughter.
In essence, the High Court emphasized that while a Habeas Corpus petition is maintainable in child custody cases, it is typically granted only when the facts are unequivocally clear and the welfare of the child demands immediate intervention under Article 226 of the Constitution. In this case, given the lawful custody of the mother and the availability of a substantive remedy under the Guardians and Wards Act, the father was directed to pursue his claims in the appropriate forum.
Guardians and Wards Act, 1890
