Bombay High Court hands over custody of Indian child to Pakistani origin mother
Reiterating that the welfare of the child is the paramount consideration in custody matters, the Bombay High Court has ruled that while religion is one of the considerations, it is not a decisive or overriding one.
A Division Bench of Justices Sarang V. Kotwal and S. M. Modak passed the ruling while dismissing a habeas corpus petition filed by a father seeking custody of his 3-year-old daughter.
"In considering what will be for the welfare of the minor, 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. Thus, 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 court held.
The petitioner father, represented by Senior Advocate Aabad Ponda, relied on Section 354 of the Mahomedan Law and argued that since both parents are Muslim, they should be governed by Muslim personal law.
On the other hand, the respondent mother, represented by Senior Advocate Harish Salve, questioned the maintainability of the habeas corpus petition. He argued that the court must focus on the welfare of the child, not personal laws.
After taking note of the submissions, the court clarified that Indian Courts are strictly governed by the provisions of the Guardians and Wards Act, 1890, in custody matters.
While placing reliance on the Supreme Court’s judgment in Nithya Anand Raghavan v. State (NCT of Delhi), the court noted that the child was hardly 3 years of age and emphasised that a girl child up to the age of seven should ordinarily remain with the mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in the custody of the mother.
The petitioner-father and respondent-mother got married in 2019, and their daughter was born on April 6, 2022. The mother was born in Pakistan. However, she became an Indian Citizen on 07.06.1995, and she was issued an Indian Passport on 28.08.1995. However, she surrendered her Indian citizenship and became a U.S. National on 17.12.2007. The mother currently lives in India.
While referring to the Nithya judgment, the court observed," No such material is forthcoming before us to show that the custody of the daughter, if it remained with the mother, would be harmful to the daughter. Though Mr. Ponda submitted that because of the erratic nature of her business, the Respondent No.2 is unable to spend sufficient time with the child, it is a disputed fact which cannot be held as the truth to deny the custody of the child to the mother."
Accordingly, the court held that there was no reason to transfer the custody of a minor child aged 3 years from the mother to the petitioner-father.
Case Title: Sahil Raju Gilani Versus The State of Maharashtra & Anr.
Download judgment here