In the judgement delivered on Thursday, the Bombay High Court has allowed a criminal writ petition filed by an Egyptian citizen who sought the issuance of a writ of habeas corpus against his sister-in-law and mother-in-law for alleged illegally immuring his 11-month old son.

The petitioner, in his petition, contended that following the sudden demise of his wife, his sister-in-law tried to force him to leave his son with her in India and also asked him to leave his job in Algeria. It was further alleged that his sister-in-law filed false charges of sexual harassment against the petitioner in order to secure his son's custody.

The judgement came out in Khaled Kamal Hussein Mohamed Kassem vs Paulami Apte.

CASE BACKGROUND

As contended by the petitioner in the petition, in Oct 2012, he got engaged with Soumi Ghosh after being in a relationship for 5 years. Despite the couple lived in different parts of the world at the time, the relationship continued and in Aug 2014, the couple got married at the Egyptian Embassy in Myanmar.

In Oct 2014, a certificate of marriage under the Special Marriage Act was issued. His son, Kian was born to the couple on Feb 03, 2019, in Pune.

Although the petitioner kept traveling for his job during this time, he was present during the delivery and continued to visit Mumbai in order to see his wife and child.

In one incident of losing consciousness followed by emergency medical treatment, his life lost her life.

The petitioner contended that, soon after the death of his wife, his sister-in-law started forcing him to leave the child with her in Pune and return to work to which he refused, After this, the sister-in-law pressurized the petitioner to leave his job at Algeria and settle in Pune. Following this, the petitioner along with Kian as well as his sister-in-law travelled to Egypt in June 2019 where they resided together in his apartment. While Paulami (sister-in-law of petitioner) had a separate room, she kept Kian with her all the time and kept the door locked.

As per the petitioner's contentions, he had a conversation regarding the plans to marry her and he clearly refused to the proposal. Then they shifted to UAE where the petitioner got a job that didn't have as many commitments in order for the petitioner to have time to spend with his son.

Then at last, in Sep 2019 Paulami insisted on coming back to India and the petitioner obliged after being initially reluctant due to visa issues. On Sep 29, petitioner learned that Paulami had filed a criminal complaint against him alleging that he had sexually harassed her and Kian, who was 6 months old at the time.

COURT PROCEEDINGS

During the hearing, the Learned Counsel of the petitioner submitted that it's not a proceeding to determine who should have custody. The limited scope of inquiry is whether the detention of a minor child was illegal and without the authority of law.

To uphold the above contention, he relied upon the observations made by the Supreme Court in Para 19 in the case of Tejaswini Gaud vs. Shekar Jagdish Tewari. (supra). He said that the Court will not rely on averments made in thin air to determine who is entitled to the custody of the minor, the welfare of the child is paramount.

On the other side, the respondents argued that the petitioner is 'unfit' to be a father.

The Learned Counsel on the other side said, "The petitioner is temperamental, domineering, has sexually harassed Paulami and had pedophilic tendencies.'' 

She further stated that it is settled position under the Mohommedan Law that the maternal grandmother has the first right to the custody of the child in the absence of a biological mother. Therefore, there is no illegality about the custody of the child by Paulami and her mother, she argued referring to the petitioner's religion.

On this, the Court observed:

"Be that as it may, we do not wish to elaborate on the said aspect of application of personal law for the reason that child Kian is born out of wedlock between Petitioner who is Muslim by religion and late Soumi Ghosh who was Hindu by religion, secondly, child Kian is 11 months old and it would be harsh to brand him by a particular religion since he is of very tender age, and he is not capable of forming and expressing his wish."

The bench noted those separate proceedings will have to be filed declare the petitioner is 'unfit' but also observed that he was financially secured and had taken care of Kian in the past, having visited him frequently when his mother Soumi was alive.

"Indisputably, the Petitioner is only surviving parent of the child and natural guardian. The child of about 11 months of age definitely needs love, care, and affection of the father. It also appears that the economic condition of the Petitioner is stable. Keeping in view the qualification of the Petitioner, so also he is gainfully employed and working in a reputed position, there is no reason to deprive him of having custody of child Kian. The child is of 11 months of age and he is not capable of forming and expressing his wish. Child Kian lost his mother when he was just two months and he cannot be deprived of the love of his father for no valid reason."

Court also referred to Supreme Court's decision in Yashita Sahu vs the State of Rajasthan and observed-

"As it is clear from the observations made by the Hon'ble Supreme Court in Para 18 that, just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents."

At the end of the proceedings, the petitioner submitted an undertaking stating that if Court was to restore custody to him, he would allow both Paulami and her mother access to Kian throughout the year and that they could visit Kian in UAE after giving notice.

The Court finally allowed the said petition and granted Kian's custody to the petitioner.

The judgement was delivered by Justice SS Shinde and Justice NB Suryawanshi on 30-01-2020.

Read Judgement Here:

 

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