No 'Illegal' Detention: Gujarat High Court Rejects Pakistani Father's Plea For Custody Of Minor Son Brought To India By Mother

The Gujarat High Court has rejected a plea filed by a Pakistani man seeking custody of his 4-year-old son, who allegedly was brought to India by his mother.

In its judgement, a division bench comprising Justices Sangeeta K Vishen and Sanjeev J Thaker observed, “The minor Azlaan aged 4 years, is in the custody of his mother and hence, it is difficult to believe that the welfare and the best interest of the child is at stake. The Court has repeatedly requested the learned advocate to substantiate the claim of illegal detention or the welfare and interest; however, the learned advocate could not point out, except the bare assertion about the nationality, culture and values. Thus, the claim of the petitioner that the minor Azlaan has been illegally detained, cannot be accepted.”

The petitioner-father had filed a writ of habeas corpus, praying that the respondents produce the minor boy and direct that the child be handed over to him. Furthermore, the petitioner sought permission to accompany the minor son to the Atari-Wagah Border in Amritsar, Punjab, India, to pursue custody proceedings before the Family Judge XVIII Court in Karachi, Pakistan.

Advocate D. M. Ahuja, appearing on behalf of the petitioner-father, argued that the respondent mother unlawfully brought the minor to India on a tourist visa. He further contended that the mother has stopped contacting the petitioner-father and expressed concerns that the minor would not receive adequate care and might be deprived of his culture and values. The counsel contended the child is being kept in isolation outside the country and is in forced confinement, urging that custody be handed over to the father.

Furthermore, the petitioner's counsel contended that proceedings for permanent custody under Section 25 of the Guardians and Wards Act, 1890, are ongoing before the Family Judge in Karachi. The Counsel informed that a notice has been issued in these proceedings, but the petitioner is unable to serve it to the respondent, as he cannot travel to India.

Alternatively, Jirga Jhaveri, the APP, representing the respondent, contended that the mother, as the biological parent, has legal custody of the child, and the confinement cannot be deemed illegal. The APP further contended that without a court order in favour of the father, the writ petition should not be entertained, given the pending proceedings in Karachi's District and Sessions Court.

The Court dismissed the petition, rejecting the reliance placed by the petitioner on the case of Rajeswari Chandrasekar Ganesh Vs. The State of Tamil Nadu and Ors. (2022 (10) SCALE 163: MANU/SC/0890/2022), stating, “The said judgment would not apply to the facts of the present case inasmuch as, in the said case, there was an order granting temporary custody of the minor child to the petitioner therein.”

The Court further stated, “As stated herein above, in the present case, there is no order passed and hence, on mere assertion that the minor is illegally detained, cannot be considered.”

Case Title: Kutbuddin Inayat Mithiborwala Poa Of Aamir Ali Asghar Versus State Of Gujarat & Ors.

LL Citation: 2024 LiveLaw (Guj) 168

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