Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Bom) 914

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SARANG V. KOTWAL, S.M. MODAK, JJ.
Sahil Raju Gilani - Petitioner
Versus
The State of Maharashtra and Another - Respondents
Criminal Writ Petition No. 2364 of 2024, Interim Application No. 2483 of 2024, Interim Application (ST) No. 21832 of 2024
Decided On : 28-04-2025

Advocates Appeared:
Mr. Aabad Ponda, Sr. Advocate a/w. Ms. Fazaa Shroff, Mr. D. V.
Deokar, Sachin Pandey and Mustafa Shroff i/b. Ms. Fazaa Shroff
for Petitioner.
Mr. J. P. Yagnik, APP for State/Respondent.
Mr. Harish Salve, Sr. Advocate (appeared through V.C.) a/w. Mrs.
Taubon Irani, Danish Aftab Chowdhary and Shreyas Chaturvedi for
the Respondent No.2.

The welfare of the child is paramount in custody disputes, and habeas corpus is not maintainable if the child is in lawful custody of one parent.

Headnote:
(A) Guardians and Wards Act, 1890 - Sections 4(2), 17, 24 - Mahomedan Law - Sections 352 and 354 - Habeas Corpus petition - The father sought custody of his minor daughter from the mother, who had taken the child to another city. The court emphasized that the welfare of the child is paramount and that custody disputes should ideally be resolved under the Guardians and Wards Act. The court found no exceptional circumstances to justify changing custody from the mother to the father. (Paras 14, 16, 22, 23)

(B) Custody of Minor - The court ruled that the custody of a minor child is presumed lawful when with the biological mother, and only in exceptional circumstances can it be altered. (Paras 14, 15, 22)

(C) Maintainability of Habeas Corpus - The court held that a habeas corpus petition is not maintainable if the child is in lawful custody of one parent, and the other parent has an alternative remedy under the Guardians and Wards Act. (Paras 12, 14, 20)

Facts of the case:
The petitioner, the father, filed a habeas corpus petition after the mother took their daughter to New Delhi, alleging she had no concrete roots in India. The mother had previously lived in the USA and was involved in a legal dispute regarding her residency status. (Paras 1-5)

Findings of Court:
The court found that the mother’s custody of the child was lawful and that the father could seek custody through appropriate legal channels rather than through habeas corpus. (Paras 14, 23)

Issues: The main issues were whether the mother’s custody was lawful and whether the father could seek relief through habeas corpus. (Paras 14, 20)

Ratio Decidendi: The court ruled that the welfare of the child is the primary consideration and that custody should not be changed without clear evidence of harm. The father was advised to pursue custody through the Guardians and Wards Act. (Paras 14, 22)

Result: Petition dismissed.

ORDER :

Sarang V. Kotwal, J.

1. This is a petition filed by the father of a girl child ‘S’ for the writ of Habeas Corpus. By way of interim order, the Petitioner has sought directions restraining the Respondent No.2 who is the mother of the child and the Petitioner’s wife from taking away the minor girl outside the territory of India. Another prayer in the nature of interim relief is for the directions regarding access of the minor girl.

2. Heard Mr. Aabad Ponda, learned Senior Counsel for the Petitioner, Mr. Yagnik, learned APP for the State/Respondent No.1 and Mr. Harish Salve, learned Senior Counsel for the Respondent No.2.

3. The facts mentioned in the petition are that the Respondent No.2 was born in Pakistan. She became an Indian Citizen on 07.06.1995 and she was issued an Indian Passport on 28.08.1995. After that, she surrendered her Indian citizenship and became a U.S. National on 17.12.2007. The Respondent No.2 currently lives in India with an American Passport and travels with a PIO (Person of Indian Origin) Card which has expired on24.03.2023. It is mentioned in the petition that the Respondent No.2 had applied for an OCI card on 27.06.2017, but FRRO rejected that application and had directed her to apply for an Indian VISA. The issue is pending before the Delhi High Court in Writ Petition (C) No.2063 of 2019 as the FRRO had initiated steps to cancel her PIO card. It is further mentioned in the petition that the Respondent No.2 is a fashion stylist, having a Bachelor’s Degree from USA. She is a business woman and also works in Hindi film industry. She is an influencer on social media and because of her nature of work she has to travel frequently. According to the Petitioner, she does not have any fixed place of business and she has no concrete roots in India either on personal level or on the professional level.

4. The Petitioner got married with the Respondent No.2 on 06.10.2019. The couple was blessed with their daughter on 06.04.2022. The daughter was born in Mumbai and stayed in Mumbai from May 2022 up to 30.01.2024. She was admitted to a school in Mumbai. Mr. Ponda, learned senior counsel for the Petitioner submitted that the Petitioner has paid the school fees up to July 2026. The child has a Passport on the Mumbai address. Her Aadhaar card and PAN card also has the same address. In this background, according to the Petitioner, the Respondent No.2, clandestinely, on the pretext of temporarily visiting her father in New Delhi, took away the minor child from Mumbai. The return tickets were booked for both, the nurse and the minor child for 11.02.2024, but the child was not brought to Mumbai and was kept in New Delhi. Instead, the Respondent No.2 sent a legal notice through her advocate for amicable resolution of marital dispute by taking recourse to pre-litigation mediation. The Petitioner replied to that notice vide the reply dated 20.03.2024. The Respondent No.2, in her notice, had made allegations of cruelty, domestic violence, financial deprivation and, physical and mental harassment; which the Petitioner has denied in his reply. The sum and substance of this background is that the child remained in New Delhi and, therefore, the Petitioner has filed this petition in the nature of habeas corpus.

5. In the meantime, the Respondent No.2 had filed a suit in the Court of Additional District Judge-05, Saket (South), New Delhi, bearing Civil Suit No.368 of 2024 seeking following reliefs:

a) pass a decree of permanent injunction in favour of the plaintiff and against the defendant No.1 and his agents thereby restraining the Defendant No.1 from entering upon any part of the suit property bearing No. bearing No.4 Oak Drive, DLF, Chattarpur Farms, New Delhi-110030 in any manner.

b) pass a decree of Mandatory Injunction directing the Defendant No.1 herein to hand over the Passport of the minor daughter ‘S’ Gilani to the Plaintiff; and

c) pass a decree of mandatory injunction directing the Defendant No.1 to give his No objection