The Bombay High Court recently dismissed a habeas corpus petition filed by Sahil Gilani, the second husband of fashion entrepreneur and social media influencer Pernia Qureshi, seeking custody of their three-year-old daughter. A division bench of Justices Sarang Kotwal and Shriram Modak ruled that while religion may be considered in child custody cases, the welfare of the child remains the most important factor.
The Court emphasized, The welfare of the child is of paramount consideration. Thus, religion is only one of the many factors, but not a decisive overriding factor, in deciding custody matters. The bench cited several Supreme Court judgments, reiterating that the custody of a young girl child, especially one as young as three years old, should ideally remain with the mother unless exceptional circumstances prove otherwise.
Pernia, a Pakistani national by birth, became an Indian citizen in 1995 and later obtained US citizenship in 2007. Despite residing in India with an American passport and a Person of Indian Origin (PIO) Card, she is currently involved in legal proceedings regarding her residency status.
The Court noted that Sahil and Pernia married in 2019 and their daughter was born in 2022. Although initially residing in Mumbai, the child was moved to New Delhi under the pretext of visiting Pernia’s father. The petitioner alleged that the move was clandestine and expressed concerns about the child being permanently taken to the USA.
In response to the petition, Senior Advocate Harish Salve, representing Pernia, argued that since the child is already lawfully in the mother's custody, the habeas corpus petition is not maintainable. He pointed out that the Guardians and Wards Act, 1890, provides a proper legal remedy for custody disputes, which Pernia had already initiated in the Family Court at Saket, New Delhi.
The Court observed, Ordinarily, the custody of a small girl child, who in this case is around three years of age, should not be disturbed unless it is shown that remaining with the mother would be harmful to the child. It concluded that no such evidence had been presented to suggest any harm to the child if she remained with her mother.
The Court further highlighted that "Indian Courts are strictly governed by the provisions of the Guardians and Wards Act, 1890, when dealing with the custody of minors within their jurisdiction." It stressed that the welfare of the minor includes factors such as age, sex, religion, character, and the capacity of the proposed guardian.
Senior Advocates Aabad Ponda and Harish Salve appeared for Sahil Gilani and Pernia Qureshi respectively. Additional Public Prosecutor Jayesh Yagnik represented the State.
Finally, while dismissing the habeas corpus petition, the Court allowed the existing ad-interim order that prevents Pernia from removing the child from India to continue for another 60 days. This extension gives Sahil Gilani a fair opportunity to seek appropriate remedies under the Guardians and Wards Act.
Case Title: Sahil Gilani vs State of Maharashtra (Criminal Writ Petition 2364 of 2024)
