In a diverse country like India, where personal laws based on religion often dictate matters of marriage, divorce, inheritance, and custody, courts are frequently challenged to balance tradition with constitutional values. The Bombay High Court’s recent ruling in Sahil Raju Gilani v. State of Maharashtra & Anr. (2025) reasserts that religious personal laws cannot dictate custody decisions when weighed against a child’s best interests. The Court emphasised that the welfare of the child must be the paramount consideration, rising above religious prescriptions or personal law mandates.
This ruling not only reinforces the secular spirit of Indian jurisprudence but also aligns custody jurisprudence with internationally accepted child rights standards. This article explores the implications of the decision and the legal landscape that governs child custody in India.
Guardians and Wards Act: A Secular Framework
The Guardians and Wards Act, 1890 provides a uniform, secular framework for determining custody and guardianship. Section 17 of the Act lays out the key considerations for courts:
“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 any existing or previous relations of the proposed guardian with the minor…”
However, crucially, these factors are not hierarchical. The law does not suggest that religion should prevail over other considerations like age, emotional needs, or the character of the guardian. The welfare standard acts as an interpretative umbrella, within which all these factors must be assessed in harmony. No single factor, including religion, is independently decisive.
This approach gives the court ample discretion to rise above the dogma of personal law and apply a case-specific, child-centric test.
Background of the Case: Sahil Raju Gilani v. State of Maharashtra
The case arose from a habeas corpus petition filed by the father, Sahil Raju Gilani, seeking the custody of his three-year-old daughter. He alleged that his estranged wife (Respondent No. 2) had unlawfully taken the child from Mumbai to New Delhi under the pretext of a temporary visit and refused to return. He sought interim relief restraining her from taking the child outside India and access to his daughter.
The mother, a U.S. national residing in India with an expired PIO card and a pending OCI application, had filed a civil suit in Delhi seeking possession of the child’s passport and liberty to renew it. She also initiated custody proceedings under the Guardians and Wards Act, 1890, in the Family Court at Saket.
Contentions by the Petitioner (Father)
The father, represented by Senior Advocate Mr. Aabad Ponda, made several key arguments:
- Primary Caregiver Claim: He asserted that he was the primary caregiver and had stronger emotional ties with the child.
- Lifestyle and Stability Concerns: The mother allegedly led an erratic life due to her profession in the fashion and entertainment industry, lacking a stable base in India.
- Religion-Based Custody Rights: The petitioner invoked Sections 352 and 354 of Mahomedan Law, claiming that as a Muslim father, he was the natural guardian and the mother had forfeited her right to custody by relocating and leading an allegedly unsuitable lifestyle.
- Precedents Relied Upon: He cited cases such as Athar Hussain v. Syed Siraj Ahmed (2010), which emphasised the father’s superior custodial rights under Muslim law, and Gohar Begum v. Suggi alias Nazma Begum (1960), supporting the maintainability of habeas corpus in child custody cases.
Counterarguments by the Respondent (Mother)
Senior Advocate Mr. Harish Salve, appearing for the mother, presented a robust defense:
- Lawful Custody: He argued that the child was in the mother’s lawful custody and that habeas corpus was not maintainable in such cases unless the custody was unlawful.
- Availability of Statutory Remedies: He emphasised that the proper course was to seek custody under the Guardians and Wards Act, which the mother had already done.
- Paramount Consideration of Welfare: Religion, while a factor under Section 17(2), is not decisive. The child’s welfare, including age, gender, emotional needs, and the capacity of the parent, must guide the decision.
- Judicial Precedents: He relied on Nithya Anand Raghavan v. State (NCT of Delhi) (2017) and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu (2023), which reinforce that custody with a biological parent—especially the mother of a young child—is presumed to be lawful unless strong evidence suggests otherwise.
Court’s Observations and Reasoning
1. Religion Not a Decisive Factor
The court categorically held that while religion is one of the considerations under Section 17(2) of the Guardians and Wards Act, it cannot override the paramount consideration: the welfare of the minor.
“Religion of the minor is only one of the considerations, but it is not a decisive overriding factor.” — Kotwal J.
The court rejected the rigid application of Mohammedan personal law provisions in this context, noting that the statutory framework under the Guardians and Wards Act prevails.
2. Custody with Mother Presumed Lawful
Relying on Nithya Anand Raghavan, the Court held that a biological mother’s custody of a minor, particularly a girl of tender age (3 years in this case), is presumed lawful. The father can seek custody through proper channels, but not through habeas corpus unless the custody is illegal or harmful to the child.
3. Welfare as Paramount Consideration
The court reiterated that the focus should be on the best interests of the child:
“For a three-year-old girl child, being in the custody of her mother would be for her welfare.”
No evidence was presented to show that the child was at risk in the mother’s care. Thus, the petition was dismissed, although the court allowed the father liberty to approach the appropriate family court.
Modern Judicial Approach to Custody
Over the years, Indian courts have moved towards a more progressive and child-sensitive interpretation of custody laws. In multiple cases, including Tejaswini Gaud v. Shekhar Tewari (2019) and Yashita Sahu v. State of Rajasthan (2020), the Supreme Court has reiterated that custody is not merely about parental rights but primarily about child welfare.
This orientation was further echoed in the 2025 Bombay High Court judgment, where the Court declined to shift custody of a 3-year-old girl child from her mother to her father merely on the ground that Islamic law would disqualify a mother who resides away from the father’s home. The Court noted that:
“The religion of the minor is only one of the considerations, but it is not a decisive overriding factor.”
This sentiment reflects the judiciary’s increasing discomfort with a literal and uncritical application of religious norms, especially when they conflict with modern ideas of equality, care, and child rights.
Implications of the Judgment
- Restricts Habeas Corpus in Custody Cases: The judgment clarifies that habeas corpus is not the appropriate remedy when a child is in lawful custody of a parent, unless there are exceptional circumstances like abuse or illegal detention.
- Reinforces Child Welfare Principle: Reaffirms that the child’s welfare is the paramount consideration—above parental preferences or personal laws.
- Limits Role of Religion in Custody Decisions: States that religion is only one of several factors in determining custody and cannot by itself dictate the outcome.
- Discourages Misuse of Jurisdiction: Directs parents to approach the appropriate family court instead of using writ petitions to bypass statutory procedures.
- Presumes Mother’s Custody as Lawful: Holds that custody with the biological mother, especially of a very young child, is presumed to be in the child’s best interest.
- Procedural Safeguards and Future Remedies:Although the writ petition was dismissed, the Court granted a 60-day extension on interim relief preventing the mother from removing the child from India.
Role of Habeas Corpus in Child Custody Disputes
The writ of habeas corpus plays a limited yet significant role in child custody disputes, primarily where there is clear evidence of illegal or forcible detention of the minor. Indian courts have consistently held that if the child is in the lawful custody of a natural guardian—typically a biological parent—then a habeas corpus petition is generally not maintainable.
As reiterated by the Bombay High Court in Sahil Raju Gilani v. State of Maharashtra & Anr. (2025), custody petitions involving factual disputes, welfare considerations, and competing claims must be adjudicated through statutory remedies under the Guardians and Wards Act, 1890, which provides a structured and child-centric process for resolution.
While habeas corpus can be invoked in exceptional cases—such as abduction, abuse, or custody with non-guardians—it is not a substitute for comprehensive family court proceedings. The Court in Sahil Gilani emphasised that unless the mother’s custody is demonstrably harmful, her guardianship of a toddler remains lawful and preferable. The judgment thus clarifies that the inherent equitable jurisdiction exercised through habeas corpus must be used sparingly and only when swift judicial intervention is essential to protect the child’s liberty or safety.
Conclusion: Towards a Uniform Welfare Jurisprudence
The Bombay High Court’s ruling in 2025 is not merely a victory for the mother involved—it is a victory for the principles of secularism, equality, and child-centric justice. It sets a powerful precedent that Indian courts will not tolerate the use of religion as a tool to defeat the best interests of a child.
The judgment also reminds litigants that
Constitutional courts are not a substitute for family courts, and emotional distress or religious sentiment alone cannot justify bypassing statutory procedures.
Going forward, this case will serve as a judicial touchstone for future custody battles, especially where attempts are made to invoke personal laws to the detriment of the child. It is a call for uniformity, sensitivity, and above all, an insistence on placing the child at the center of all legal frameworks.
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