Mumbai: The Bombay High Court, while refusing to grant any relief to a Muslim man who had alleged that his wife had forcibly taken away his minor daughter, said on Monday, April 28, that religion is not a decisive overriding factor and the welfare of a child is more important.
The man, in a habeas corpus (produce the person) petition filed in the HC, said both he and his wife were Muslims and under the Mohammedan Law, the father is considered the natural guardian of the child.
Hence, the custody of the 3-year-old girl should be handed over to the petitioner, the plea had said.
The father, in the plea, said his wife, who was born in Pakistan but in 1995 became an Indian citizen, was presently in Delhi, but he apprehended that she would leave the country with the child.
A division bench of Justices S V Kotwal and S M Modak on Monday dismissed the petition and said it has to consider the welfare of the child; the character and capacity of the proposed guardian, and religion was one of the many factors that need to be considered.
“Thus, the religion of a party is not the only consideration before the court in such cases. The religion of the minor is one of the considerations, but it is not a decisive overriding factor,” HC said.
“In our opinion, for a 3-year-old girl child, being in the custody of her mother would be for her welfare. The mother is earning sufficiently to provide for herself and her daughter,” the court said.
The HC relied on Supreme Court judgments that held the custody of a minor child, especially a girl, has to be with her mother, and only in exceptional circumstances, the custody of the minor girl child is taken away from the mother and given to someone else.
“Ordinarily, when the custody of a small girl child, who in this case is around three years of age, is already with her mother, then it cannot be taken away from the mother unless there are circumstances to indicate that it would be harmful for the child to remain in the custody of the mother,” the HC said.
In the present case, nothing is forthcoming to show that if the child is kept in the custody of the mother then the same would be harmful, the bench said.
The court refused to accept the man’s argument that because of his wife’s erratic nature of business, she would be unable to spend sufficient time with the child.
The HC said it was a disputed fact which cannot be held as the truth to deny custody of the child to the mother.
The bench said the proper course for the man would be to exercise his right by approaching the appropriate court under the Guardians and Wards Act rather than pursuing the remedy under a habeas corpus petition.
The court said this is not a case where it can interfere by directing the woman to hand over custody of the child to the petitioner.
The bench while refusing to grant any relief to the man said he could seek the same relief before the court in Delhi where the woman has initiated proceedings.
As per the plea, the man’s wife was born in Pakistan and she became an Indian citizen in 1995. She, however, surrendered her Indian citizenship and became a United States national in 2007.
The woman currently lives in India with an American passport and travels with a Person of Indian Origin (PIO) card which expired in 2023.
The man claimed that his wife had applied for an Overseas Citizen of India (OCI) card in 2017 but the same was refused and she was asked to apply for an Indian visa. The issue is pending before the Delhi High Court.
The man’s counsel Aabad Ponda submitted to the court that the woman works with the Hindi film industry, is an influencer on social media and because of her nature of work travels frequently and has no concrete roots in India.
The couple got married in 2019 and had a girl child in 2022. Ponda told the court, adding that till January 2024, the girl stayed in Mumbai and was also admitted to a school here.
However, the woman clandestinely took the child and went to Delhi under the pretext of meeting her family and never returned to Mumbai, he told court.
Instead, she sent the man a notice seeking amicable resolution of their marital dispute and alleged mental harassment, he said.
