The Bombay High Court on Thursday allowed a criminal writ petition filed by Khaled Kassem, an Egyptian citizen who sought issuance of a writ of habeas corpus against his sister-in-law and mother-in-law for alleged illegally confining his 11-month old son Kian.
Division bench of Justice SS Shinde and Justice NB Suryawanshi heard Kassem’s petition wherein it was alleged that following the sudden death of petitioner’s wife Soumi, his sister-in-law Paulami tried to force him to leave Kian with her in India and also asked him to leave his job in Algeria. It was further alleged that Paulami filed false charges of sexual harassment against the petitioner in order to secure Kian’s custody.
Mr. Subir Kumar, Founder, SDS Advocates filed Writ of Habeas Corpus on behalf of Petitioner (father) who is an Egyptian Citizen seeking the custody of his son, who was illegally detained by his Sister in Law and Mother in Law.
According to the petitioner, in October 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 August 2014, the couple got married at the Egyptian Embassy in Myanmar.
In October 2014, a certificate of marriage under the Special Marriage Act was issued. Kian was born to the couple on February 3, 2019, in Jehangir hospital in Pune.
Although, the petitioner kept travelling 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.
However, on April 17, 2019, Soumi fell unconscious at around 6:30 am. She was admitted to Jehangir hospital where after 2 hours of emergency medical treatment, she was declared dead.
The petitioner contended that, soon after the death of his wife, Paulami started forcing him to leave the child with her in Pune and return to work. After he refused, Paulami pressurized the petitioner to leave his job at Algeria and settle in Pune. Thereafter, petitioner along with Kian as well as Paulami traveled to Egypt on June 2019 where they resided together in his apartment. While Paulami had a separate room, she kept Kian with her all the time and kept the door locked.
Furthermore, the petitioner and Paulami also had a conversation about being together in the future and petitioner allegedly told his sister-in-law that he will not marry her in the future. Three of them then shifted to UAE where petitioner got a job which did not have as many commitments in order for the petitioner to have time to spend with his son.
Finally, in September 2019 Paulami insisted on coming back to India and petitioner obliged after being initially reluctant due to visa issues. On September 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.
Senior Counsel Navroz Seervai appeared on behalf of the petitioner, APP VB Konde for the State and Sonal Gupta along with Rohit Gupta for Paulami and her mother Chhanda.
Seervai submitted that it is 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, he argued.
In support of aforesaid 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). 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 Seervai said.
It was argued on behalf of the respondents that petitioner is ‘unfit’ to be a father. “The petitioner is temperamental, domineering, has sexually harassed Paulami and had pedophilic tendencies,” Sonal Gupta argued.
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 biological mother. Therefore, there is no illegality about the custody of the child by Paulami and her mother, Gupta argued referring to the petitioner’s religion.
On Seervai’s submission that once marriage was registered under Special Marriage Act, application of personal law will end, Court said-
“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 reputed position, there is no reason to deprive him from 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 love of his father for no valid reason.”
Court also referred to Supreme Court’s decision in Yashita Sahu vs 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.”
Finally, 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.Thus, Court allowed the said petition and granted Kian’s custody to the petitioner.
The Petitioner was represented by Mr. Navroz Seervai, Senior Counsel, Mr. Subir Kumar, Advocate, Akash ebello, Advocate with Ms. Chahat Dhingra and Ms. Samiksha Manek.Click Here To Download Judgment