Gujarat High Court rejects Pakistani man’s plea for custody of minor son brought to India by mother

The Gujarat High Court recently dismissed a Pakistani man’s plea seeking custody of his minor son who he claimed was brought to India by his biological mother on a tourist visa and is now allegedly under her illegal detention in India.

A Bench of Justices Sangeeta K Vishen and Sanjeev J Thaker observed that the petitioner could not substantiate his claim that the child is under illegal detention by the mother.

“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 Court said in its October 28 order.

Further, the Court noted that the father has recently filed an application for grant of permanent custody of the minor child at a family court in Karachi (Central) in Pakistan under Section 25 (Title of guardian to custody of ward) of the Guardians And Wards Act, 1890.

It also noted that the Court in Karachi has sought the mother’s appearance before it on November 9 this year.

“From the record, it further appears that the notice has been issued requiring the respondent no.4 (mother of the minor) to appear on 09.11.2024, failing which, the application would be heard and determined ex-parte,” the Court noted.

The father moved the High Court through an Indian petitioner by granting him power of attorney.

He sought his minor son’s custody and prayed for issuance of a writ of Habeas Corpus.

The petitioner's counsel argued that minor son, who was born in Pakistan, was illegally brought to India on a tourist visa which is valid up to November 6.

He further submitted that the respondent-mother has stopped contacting the father and was not taking good care of the minor son and that he would be deprived of its culture and values. It was argued that the minor child is being kept in isolation outside his home country and is under confinement.

The counsel submitted that though the father had filed an application for permanent custody of his minor son at a Karachi Court and notice was issued to the mother, the same could not be served on her since father, being a Pakistani, could travel to India.

The counsel on behalf of the mother argued that her client is the biological mother of the minor child and if the child is in her custody, it cannot be said that it is illegal confinement. She further submitted that except for the proceedings pending before the District and Sessions Court in Karachi, so far there have been no orders in favor of the father in this regard.

The High Court agreed with the mother’s assertion that there has been no order passed in favor of the father. It did not concur with the petitioner’s assertion that the minor son is being illegally detained.

Thus, it dismissed the father’s plea.

Advocate DM Ahuja appeared for the Pakistani father's power of attorney holder.

Assistant Public Prosecutor Jirga Jhaveri represented the State of Gujarat.

[Read Order]