Minor’s religion not decisive in custody cases, rules HC

In the present case, the child is hardly three years old,” the judges said. “In our opinion, for a three-year-old girl, custody with her mother is most conducive to her welfare. The mother is financially capable of caring for both herself and her daughter,” the bench concluded, dismissing Gilani’s petition

MUMBAI: The religion of a minor cannot be a decisive factor when determining custody, the Bombay high court ruled on Monday while dismissing a city-based businessman’s plea seeking custody of his three-year-old daughter from his estranged wife, a fashion stylist of Pakistani origin.

Minor’s religion not decisive in custody cases, rules HC

“The religion of the minor is only one of the considerations, but it is not a decisive, overriding factor. It is among several factors the court must weigh to determine the welfare of the child,” observed a division bench of Justices Sarang Kotwal and SM Modak while rejecting the petition filed by Sahil Raju Gilani, director of Gits Food Products, a company best known for its instant Gulab Jamun mixes.

Referring to Section 17(2) of the Guardians and Wards Act, the court noted that while the minor’s age, sex, and religion are factors to be considered, none can be treated as conclusive in isolation.

While refusing to disturb the current custody arrangement—under which the child resides in Delhi with her mother, Pernia Sahil Gilani (also known as Pernia Moin Qureshi)—the court continued an earlier order dated June 18, 2024, restraining her from taking the child out of India without the court’s permission.

Sahil had moved the high court last year with a Habeas Corpus petition— a legal remedy seeking the release of a person unlawfully detained—alleging that his wife had taken their daughter to Delhi early last year and had failed to return, despite booked return tickets.

He further contended that his wife, originally born in Pakistan, had acquired Indian citizenship in June 1995, only to renounce it in December 2007 to become a United States national. The couple married in October 2019, and their daughter was born in April 2022. Gilani expressed apprehensions that his estranged wife might take the child out of India permanently.

During arguments, Gilani’s counsel had cited Section 354(2) of Mohammedan Law, which provides that a Muslim mother forfeits her right to custody of a girl child below seven years if she leaves her husband’s home during the subsistence of marriage.

However, the court found no merit in this argument. It pointed to a 2017 Supreme Court ruling emphasising that, for young girls, the guardianship of the mother is generally paramount, unless it is proven to be detrimental to the child’s welfare.

“In the present case, the child is hardly three years old,” the judges said. “In our opinion, for a three-year-old girl, custody with her mother is most conducive to her welfare. The mother is financially capable of caring for both herself and her daughter,” the bench concluded, dismissing Gilani’s petition.

In a similar custody dispute, the High Court on Monday dismissed a petition filed by the estranged wife of a city-based hotelier seeking custody of their 10-year-old son. The woman had approached the court alleging that her husband had unlawfully retained the child. However, the court rejected her plea after the boy expressed his desire to continue living with his father.

While acknowledging the possibility that the child may have been tutored by his father, the court observed that it could not disregard the child’s expressed wishes and forcibly transfer his custody to the mother.