Bombay High Court: Religion Of A Party Cannot Be The Only Consideration Before Court In Cases For Determining The Welfare Of Child In Custody Disputes

The Court dismissed a Writ of Habeas Corpus filed by a father seeking the custody of the minor daughter. The Court pointed out that 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 her mother.

A Division Bench of Justice Sarang V Kotwal and Justice SM Modak held, “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 religion of the minor is only one of the considerations, but it is not a decisive overriding factor. It is only one of the many factors which the Court has to consider as to what is for the welfare of the minor. In our opinion, for a three 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 for her daughter.”

Senior Advocate Aabad Ponda appeared for the Petitioner, while Senior Advocate Harish Salve represented the Respondents.

Brief Facts

The Petitioner, the father of the child, filed the petition seeking the Court's intervention to restrain the child's mother from taking the minor outside India. The Mother, who was born in Pakistan but later became a U.S. National, was residing in India.

The Petitioner argued that he was the primary caregiver and that the mother's lifestyle was erratic, with frequent travel and no fixed place of business in India.

Court’s Reasoning

The High Court referred to the Supreme Court’s decision in Nithya Anand Raghavan v. State (2017), wherein it was held that “Ordinarily, the custody of a girl child who is around 7 years of age must ideally be with the mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of the mother. In the present case, the child is hardly 3 years of age.”

However, the Bench noted the argument advanced by the Petitioner that since the parties in this case were Muslim, the observations regarding Guardianship of a mother of a young daughter were not applicable.

The Court clarified that 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.”

“The Hon’ble Supreme Court in Nithya’s case has clearly observed that the proper remedy with the other parent who does not have custody is to resort to the substantive prescribed remedy for getting the custody of the child. It would be governed by the provisions of the Guardians and Wards Act, 1890. The said proceedings are already initiated by the Respondent No.2 before the Family Court,” the Bench explained.

The Court then stated, “In short, if the remedy is available, either of the parents can resort to the substantive remedy prescribed under the Guardians and Wards Act”

Consequently, the Court ordered, “In the background of the facts of the present case, we do not find that this is a case where the Court can interfere by directing the Respondent No.2 to handover the custody of a minor child aged 3 years from the mother to the Petitioner-father. The Petitioner is always at liberty to participate in the proceedings preferred by the Respondent No.2 herein in the Court at Delhi.”

Accordingly, the High Court dismissed the Petition.

Cause Title: S v. The State of Maharashtra & Anr. (Neutral Citation: 2025:BHC-AS:19046-DB)

Appearance:

Petitioner: Senior Advocate Aabad Ponda; Advocates Fazaa Shroff, D.V. Deokar, Sachin Pandey and Mustafa Shroff

Respondents: Senior Advocate Harish Salve; APP J. P. Yagnik; Advocates Taubon Irani, Danish Aftab Chowdhary and Shreyas Chaturvedi

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