Bombay HC -Religion can’t dictate kid’s welfare in custody case

Mumbai: Religion cannot be the sole criteria to decide the welfare of a child, said the Bombay high court, which was called upon to decide the guardianship of an eight-yearold girl whose father is facing the death penalty in Dubai for killing her mother.

Her grandmothers — the girl’s deceased mother was born a Hindu, while her father is a Muslim — were fighting over who should get her custody. She has lived most of her life with her paternal grandmother in Raigad. But the paternal grandmother’s attempt at levelling “false” allegations of sexual assault at the maternal grandmother’s house by her uncles decided the issue.

Justice Mridula Bhatkar upheld a family court judgment that the maternal grandmother should be appointed her guardian, especially in light of the attempt by the paternal grandmother to use the child as a “pawn” and destroy her innocence. “(Though) the fact of religion is to be taken into account by the court while deciding guardianship, this is not the sole determinant which should cloud all other aspects” said Justice Bhatkar, while placing importance on the child’s welfare.

The girl’s paternal grandmother had argued that the child goes to a madrassa to learn Arabic, and once she turns 15, will be in purdah. In an interview with the judge, the girl repeated sexual assault allegations against her maternal uncles. “Children imagine and sometimes tend to pretend. Considering all circumstances, (the child) is unable to give intelligent preference and is tutored and tends to imagine sexual acts,” said the judge, referring to conflicting medical reports after which the Thrissur police had applied to a local court to close the criminal case as “false”. The judge said the child had been subjected to invasive medical tests over the allegations.

The court observed that it would not have sent a child to a house where she faces sexual harassment. But her welfare also included protecting her innocence, which would get crushed by staying in an unhealthy atmosphere.

“To make the child aware of possible sexual assault or misbehaviour is one thing, and to exploit her sexuality to blacken the face of the opposite party and bring it to disrepute is very objectionable and does not fit in the parameters of ‘welfare of the child’. Hence, there is an attempt to create malice in the mind of the child against the family of her deceased mother. She is a most unfortunate child who has lost the love of her father and mother and is shuttling between two grandmothers,” the court ruled, adding that she cannot be used as a pawn to settle scores.

The child’s parents — Salim and Navya (names changed) — married in 2008. A few months later, Navya converted to Islam and the child was born in 2009. The couple moved to Dubai for work, while the child was left with the paternal grandmother. In March 2013, Salim strangled Navya to death in Dubai and was convicted. He is facing death by a firing squad. Subsequently, the child’s maternal grandmother applied for custody, which the paternal side refused. Sexual assault allegations were made in November 2014, after the child spent her Diwali vacations at the maternal grandmother’s home in Kerala. Police there had filed a report in 2015 that the case was false.

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