While hearing an appeal in a fight of guardianship of an 8-year-old girl between her two grandmothers (paternal and maternal), Bombay High Court has held that welfare of a child is paramount when deciding custody cases and to be innocent itself is a fundamental right of the child.
Justice Mridula Bhatkar upheld the decision of the District Judge, Raigad (Mangaon), to appoint the maternal grandmother as the child’s guardian.
The child’s parents were Nimmy and Aatif, who got married in 2008. In August 2008, Nimmy converted to Islam and adopted the name Bushra. On March 2, 2009, the child was born. Four years later on March 11, 2013, Aatif strangulated and killed Bushra in Dubai. At the time, the child was back home in India with her paternal grandparents.
Few days after her Bushra’s death, her mother (maternal grandmother) took the child to Kerala. Then a month later, Aatif’s mother took custody of the child for performing Bushra’s last rites and never returned her back.
Thereafter, the maternal grandmother filed a miscellaneous application under the Guardian and Wards Act, 1890 before the District Court for custody and guardianship of the child at Mangaon, Raigad.
In the meantime, Aatif was convicted of Bushra’s murder and sentenced to death in Dubai.
Then the paternal grandmother contested the application and filed a reply. Both grandmothers argued that they were financially well of and could take care of the child better.
It was also argued by the paternal grandmother (Aatif’s mother) that the child should stay in a Muslim family as that will allow her to practise her religion in a proper manner.
But after hearing both parties, the district court decided to grant Bushra’s mother the guardianship. Thus, the first appeal was filed before the high court.
The high court initially granted a stay on the district court order and decided to give access to both parties as far as the child was concerned. The appeal itself was to be heard on merits.
During this time, on November 26, 2014 a case of sexual assault under the Protection of Child from Sexual Offences Act was filed by the paternal grandmother (appellant) against Bushra’s brother. The case was transferred to Thrissur, Kerala, and on July 3, 2015, the Circle Inspector in Thrissur filed a report stating that the case against the maternal uncle of the child was false.
Submissions and Judgment
Senior Advocate Rajiv Chavan appeared for the appellant paternal grandmother and argued that the district judge had erred in his judgment as he did not consider the child’s religion.
Chavan submitted that under Section 17 of the Guardianship and Wards Act as well as the Muslim Personal Law, the religion factor has to be considered. He said the minor girl goes to a madarsa and is learning Arabic to be able to read verses of Quran and it is important for her to learn Muslim customs and practices.
Flavia Agnes appeared for the respondent grandmother (Bushra’s mother) and argued that under Mohammedan law, under Section 353, in case of default of mother, custody of female girl child is to be given to the mother of the child’s mother.
Agnes argued that her client was also financially well enough to take care of the child. She submitted that the case of sexual assault is false and bogus, and that the medical report of Thrissur Hospital of the child discloses that the hymen was intact. She submitted that these are the pressure tactics used by the appellant so that the respondent/grandmother signs the mercy petition of her son, i.e., father of the child.
After interviewing the child herself on two occasions and hearing both parties, Justice Bhatkar concluded that the child’s account of sexual assault by her maternal uncle was tutored and imaginary.
Referring to probable false allegations, the court said: “Lodging an apparently false case of rape is a very serious thing. Allegations against each other by the parties claiming the guardianship may not disqualify them for appointment of guardian but one cannot use a child as a pawn to settle the score against another. 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 the “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.”
The court further noted: “The right to live with dignity, the right to preserve childhood and the human rights of the child are contemplated within the Fundamental Right to Life under Article 21 of the Constitution of India. Though the Constitution grants the Right to Religion under Article 25, under such circumstances, Article 21 stands on a higher pedestal than the right of religion..…. no religion teaches that the child be exposed to vices, dishonesty and falsity. The child is innocent, rather innocence is itself the inseparable from the child. Thus, the welfare of the child very much includes protection of innocence of the child. To be innocent is itself the fundamental right of the child.”
Thus, the maternal grandmother was granted guardianship of the child.