The Bombay High Court on 28th April, 2025 dismissed a habeas corpus petition filed by Sahil Gilani, the second husband (Petitioner) of fashion entrepreneur and social media influencer Pernia Qureshi (Respondent No.2), seeking custody of their three-year-old daughter. A division bench of Justice Sarang Kotwal and Justice Shriram Modak emphasisied that while religion may be a consideration in custody cases, the welfare of the child remains the paramount concern.

The Petitioner alleged that Respondent No.2, originally born in Pakistan, became an Indian citizen in 1995 but later acquired U.S. citizenship in 2007. He asserted that she is presently residing in India on an expired Person of Indian Origin (PIO) card, with her application for an Overseas Citizen of India (OCI) card having been rejected and pending further legal proceedings. According to the Petitioner, Respondent No.2, who works as a fashion stylist and influencer, frequently travels internationally and lacks stable personal and professional ties to India.

The Petitioner and Respondent No.2 were married in 2019 and had a daughter in 2022. The child lived with them in Mumbai until early 2024 and was enrolled in school there. The Petitioner claimed that Respondent No.2 deceptively took the child to New Delhi under the pretext of a temporary visit but did not return, instead initiating legal proceedings alleging abuse and seeking mediation. In response, the Petitioner filed a habeas corpus petition seeking the child's return, while Respondent No.2 obtained an ex-parte injunction from a Delhi court requiring the child’s passport to be surrendered. However, this injunction was subsequently stayed by the Delhi High Court after the Petitioner challenged it.

Asserting that he had been the child's primary caregiver, the Petitioner contended that Respondent No.2’s frequent travels rendered her unable to provide stable care. He alleged that the child was abruptly relocated to New Delhi, denying him access and causing distress to the minor. Fearing that Respondent No.2 might permanently relocate the child to the United States, he sought immediate relief through habeas corpus.

Senior Advocate Mr. Ponda, for the Petitioner, argued that the allegations made by him stood undisputed, as Respondent No.2 failed to deny them. Referring to Mahomedan law, specifically Sections 352 and 354, he submitted that Respondent No.2 had forfeited her custodial rights by living separately during the marriage. He further relied on judgments such as Athar Hussain v. Syed Siraj Ahmed, Yashita Sahu v. State of Rajasthan, and Gohar Begam v. Suggi to contend that custody rights could be enforced through a habeas corpus petition, independently of the Guardians and Wards Act, 1890.

Senior Advocate Mr. Salve, for the Respondent No.2, raised a preliminary objection regarding the maintainability of the habeas corpus petition. He contended that when a child is in the lawful custody of one parent, a writ of habeas corpus is not maintainable. Instead, he argued, the appropriate remedy lies under the Guardians and Wards Act, 1890. Mr. Salve emphasized that Respondent No.2 had already initiated proceedings under Sections 7, 10, and 13 of the Act before the Family Court in Saket, New Delhi, and that the Family Court had passed an order on 31.08.2024 restraining the Petitioner from forcibly removing the child. He argued that the Family Court, being equipped to conduct a full evaluation of the child's welfare, was the correct forum for resolving such disputes. He also pointed out that the Petitioner had known of the custody dispute since March 2024 but delayed initiating appropriate legal action. In support of his submissions, the senior advocate relied on Supreme Court judgments including Nithya Anand Raghavan v. State (NCT of Delhi), Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu, and Yashita Sahu v. State of Rajasthan.

After hearing both sides, the Bombay High Court dismissed the habeas corpus petition, relying heavily on the precedent set by the Supreme Court in Nithya Anand Raghavan. It observed that habeas corpus relief is inappropriate where a child is already in the lawful custody of a parent and reiterated that the Guardians and Wards Act, 1890, provides the appropriate legal framework for custody matters.

“Elaborating it further, the Hon’ble Supreme Court in Paragraph-53 has further observed that, being a girl child, theguardianship of the mother is of utmost significance. 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. In paragraph-63 it is further observed that the Indian Courts are strictly governed by the provisions of Guardians and Wards Act, 1890, as applicable to the issue of custody of the minor within its jurisdiction.” the court noted.

Addressing the Petitioner's reliance on Muslim personal law, the Court clarified that religion is merely one of several factors to be considered when determining the welfare of the child.

"In considering what will be for the welfare of the minor, 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. 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." The court stated.

Highlighting the primacy of the child's welfare and the importance of comprehensive judicial scrutiny, the Court stated:

“the welfare of the child is of paramount consideration. Therefore, wherever it is a disputed question of fact which needs elaborate leading and consideration of evidence and the other provisions, it would be a proper course for a parent to exercise his right by approaching the appropriate Court under the Guardians and Wards Act, 1890;”

Since Respondent No.2 had already commenced proceedings under the Guardians and Wards Act, the High Court held that the Petitioner must pursue his custody claims before the Family Court. The interim relief earlier granted to the Petitioner was extended for a further period of 60 days, providing him the opportunity to approach the appropriate forum.

Accordingly, the habeas corpus petition was dismissed, and the Petitioner was directed to seek custody through proper legal proceedings under the Guardians and Wards Act, 1890.

Case Title: Sahil Raju Gilani Versus The State of Maharashtra & Anr., Criminal WP No. 2364 of 2024

Advocates for Petitioner: Mr. Aabad Ponda, Sr. Advocate a/w. Ms. Fazaa Shroff, Mr. D. V. Deokar, Sachin Pandey and Mustafa Shroff i/b. Ms. Fazaa Shroff

Advocate for Respondent no.1(State): Mr. J. P. Yagnik, APP

Advocates for respondent no.2: Mr. Harish Salve, Sr. Advocate (appeared through V.C.) a/w. Mrs. Taubon Irani, Danish Aftab Chowdhary and Shreyas Chaturvedi