Religion not decisive factor in child custody matters: Bombay High Court rejects Muslim father's plea

The Bombay High Court on Monday observed that religion is only one of the considerations in deciding child custody matters and not an overriding factor [S v State of Maharashtra].The Bench of Justice Sarang Kotwal and Justice SM Modak made the observation while rejecting a Muslim father's habeas corpus petition for access to his three-year-old daughter, who is currently with her mother in Delhi.One of the arguments made by the petitioner was that under the Islamic law, father is the natural guardian of the child. However, the Court said,"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 petitioner, a resident of Mumbai, argued that his wife, a US national, had clandestinely taken their daughter from Mumbai, where the child had been living with him since her birth in 2022.He claimed that his wife’s frequent travel due to her work as a fashion stylist and social media influencer left her without permanent ties to India, making her an unsuitable guardian.He further argued that under Muslim law, he was the natural guardian of the child and should be awarded custody..However, the Court emphasized that young children's custody with the mother is generally in their best interest unless there are exceptional circumstances to suggest otherwise.“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 the custody of the mother. In the present case, the child is hardly 3 years of age.”.The Court rejected the allegation that the wife’s "erratic" lifestyle on account of her business would make it difficult for her to provide the necessary care and stability for their daughter."It is a disputed fact which cannot be held as the truth to deny the custody of the child to the mother," it said.The Court also opined that that the petitioner had an alternative remedy under the Guardians and Wards Act, 1890. Pertinently, the petitioner’s wife had already initiated legal proceedings in New Delhi under the Guardians and Wards Act. The Court was told that a Delhi court has restrained the father from removing the child forcibly from the custody of her mother. Thus, the High Court refused to grant relief to the father. However, it extended the interim order preventing the child from being taken out of India for another 60 days to enable the father to pursue the appropriate legal remedies under the Guardians and Wards Act..Senior Advocate Aabad Ponda along with advocates Fazaa Shroff, D V Deokar, Sachin Pandey and Mustafa Shroff instructed by Fazaa Shroff appeared for the father..Additional Public Prosecutor JP Yagnik appeared for the State.Senior Advocate Harish Salve along with advocates Taubon Irani, Danish Aftab Chowdhary and Shreyas Chaturvedi appeared for the mother. .[Read Judgment]