"Custody Of Minor Child With Mother Presumed Lawful Unless Exception Proved": Bombay High Court Dismisses Father's Habeas Corpus Plea, Directs Resort To Guardians And Wards Act
Safiya Malik
The High Court of Bombay Division Bench of Justice Sarang V. Kotwal and Justice S.M. Modak dismissed a habeas corpus petition filed by the father seeking custody of his minor daughter from his estranged wife. The Court held that, considering the facts of the case and binding Supreme Court precedents, the petitioner must pursue remedies under the Guardians and Wards Act, 1890 rather than invoking habeas corpus jurisdiction.
The petitioner, father of the minor child, approached the High Court seeking a writ of habeas corpus. He sought an interim direction restraining Respondent No. 2, the mother of the child and his estranged wife, from taking the minor girl outside India, and access to the minor.
The petition detailed that the respondent was born in Pakistan, acquired Indian citizenship on 7 June 1995, which she surrendered upon becoming a U.S. national on 17 December 2007. The respondent currently holds an American passport and previously travelled using a Person of Indian Origin (PIO) card, which expired on 24 March 2023. Her application for an Overseas Citizen of India (OCI) card was rejected by the FRRO, and litigation in this regard is pending before the Delhi High Court.
The petitioner and respondent were married on 6 October 2019. Their daughter was born on 6 April 2022 in Mumbai, where she resided until January 2024. The petitioner submitted that he had paid her school fees up to July 2026 and that all identification documents of the child reflect Mumbai as her place of residence.
According to the petitioner, the respondent clandestinely took the child to New Delhi under the pretext of visiting her father and failed to return, despite booking return tickets. The respondent then issued a legal notice for pre-litigation mediation alleging cruelty, domestic violence, financial deprivation, and harassment, which the petitioner denied.
The petitioner noted that the respondent filed a civil suit before the Additional District Judge-05, Saket Courts, New Delhi, seeking multiple reliefs including a decree of permanent injunction restraining the petitioner from entering the property in New Delhi, mandatory injunctions to secure the child’s passport, and an order for the issuance of a new passport without the father's no objection. The ex-parte injunction granted in the suit was stayed by the Delhi High Court on 3 June 2024.
The petitioner, therefore, filed this habeas corpus petition contending that the child was unlawfully taken and expressing apprehension that she would be permanently removed to the USA.
Mr. Aabad Ponda, Senior Counsel for the petitioner, argued that the petitioner was the primary caregiver, that the respondent’s lifestyle was erratic due to her profession as a fashion stylist and social media influencer, and that she lacked permanent roots in India. He relied on Mahomedan Law sections 352 and 354 to assert that the respondent had forfeited her right to custody by relocating during marriage and on precedents including Athar Hussain v. Syed Siraj Ahmed, Yashita Sahu v. State of Rajasthan, and Gohar Begam v. Suggi Alias Nazma Begam.
Mr. Harish Salve, Senior Counsel for Respondent No.2, raised a preliminary objection regarding maintainability, contending that the child was in lawful custody of her mother, and the petitioner had an effective alternative remedy under the Guardians and Wards Act. He submitted that the Family Court at Saket, New Delhi, was already seized of a guardianship petition filed by the respondent, which had restrained the petitioner from forcibly removing the child.
The Division Bench, after hearing submissions, recorded that in habeas corpus petitions concerning child custody, the threshold question is whether the minor is in lawful or unlawful custody.
The Court stated, "it can be presumed that the custody of the minor with her mother is lawful and only in exceptional circumstances the custody may be ordered to be taken away from the mother."
The Bench cited the Supreme Court judgment in Nithya Anand Raghavan v. State (NCT of Delhi), observing that, "ordinarily, the custody of a small girl child who is around three years of age must ideally be with the mother unless there are circumstances to indicate that it would be harmful to the child."
Addressing the reliance placed by the petitioner on Mahomedan Law, the Court noted that under Section 17(2) of the Guardians and Wards Act, the religion of the minor is only one among several considerations. The Court recorded, "the religion of the minor is only one of the considerations, but it is not a decisive overriding factor."
It further stated, "for a three-year-old girl child, being in the custody of her mother would be for her welfare."
On the petitioner’s reliance on first filing the habeas corpus petition, the Court referred to Nithya Anand Raghavan to clarify that "first strike" or who first approached the Court is immaterial.
The Court held that the petitioner had the liberty to participate in the guardianship proceedings or initiate proceedings for custody.
The Bench stated, "wherever it is a disputed question of fact which needs elaborate leading and consideration of evidence, it would be a proper course for a parent to exercise his right by approaching the appropriate Court under the Guardians and Wards Act, 1890; rather than pursuing the remedy under the habeas corpus petition."
It further stated that "the habeas corpus petition would be maintainable, but the relief can be granted when the facts are very clear and consideration of the welfare of the child demands interference."
The Court, while dismissing the habeas corpus petition, extended interim relief granted earlier, stating, "we deem it appropriate to extend the said ad-interim relief for a further period of 60 days to afford a reasonable opportunity to the Petitioner to approach the appropriate Court for the custody of his minor daughter."
The Court directed that the interim protection restraining Respondent No.2 from removing the child outside India would remain in force for sixty days from the date of the judgment.
Advocates Representing the Parties:
For the Petitioner: Mr. Aabad Ponda, Senior Advocate, along with Ms. Fazaa Shroff, Mr. D.V. Deokar, Mr. Sachin Pandey, and Mr. Mustafa Shroff, instructed by Ms. Fazaa Shroff.
For the Respondents: Mr. J.P. Yagnik, APP; Mr. Harish Salve, Senior Advocate (appearing through V.C.), along with Mrs. Taubon Irani, Mr. Danish Aftab Chowdhary, and Mr. Shreyas Chaturvedi.
Case Title: XXX v. The State of Maharashtra & Anr.
Neutral Citation: 2025: BHC-AS:19047-DB
Case Number: Criminal Writ Petition No. 2364 of 2024
Bench: Justice Sarang V. Kotwal and Justice S. M. Modak
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