Religion Is One Consideration In Custody Matter But Welfare Of Child Paramount: Bombay High Court

The Bombay High Court on Monday dismissed the habeas corpus petition filed by the second husband of popular fashion entrepreneur and social media influencer Pernia Qureshi, who sought the custody of their three year old daughter.A division bench of Justices Sarang Kotwal and Shriram Modak reiterated that though religion is one of the considerations in child custody matters, yet the welfare of the child is always paramount. The bench while referring to various judgments of the Supreme Court 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.The apex court has 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 bench noted. Pernia and her marketing professional husband Sahil Gilani married in 2019. The former was a Pakistani national, who became an Indian citizen in 1995 and subsequently became a US citizen in 2007. She is presently residing in India with an American Passport and travels with a Person of India Origin (PIO) Card. The bench dismissed the argument put forth by Pernia's husband Sahil Gilani, a marketing professional that since the parties are Muslims, the provisions of Guardians and Wards Act, 1890 would not apply. "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," the bench observed in the order. 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 bench noted. The judges further underscored that if the remedy is available, either of the parents can resort to the substantive remedy prescribed under the Guardians and Wards Act."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," the bench said. With these observations, the bench dismissed the husband's plea. Appearance: Senior Advocate Aabad Ponda along with Advocates Fazaa Shroff, DV Deokar, Sachin Pandey and Mustafa Shroff appeared for Sahil.Senior Advocate Harish Salve along with Advocate Taubon Irani, Danish Aftab Chowdhary and Shreyas Chaturvedi represented the Pernia. Additional Public Prosecutor Jayesh Yagnik represented State.Case Title: Sahil Gilani vs State of Maharashtra (Criminal Writ Petition 2364 of 2024)Click Here To Read/Download Judgment

Religion Is One Consideration In Custody Matter But Welfare Of Child Paramount: Bombay High Court

Narsi Benwal

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