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In child custody cases, rights can’t be decided on religion basis: HC

Mumbai: The Bombay High Court has ruled that religion of a parent cannot override other factors such as financial capability while deciding the custody rights of a minor child.

The court was hearing two separate appeals filed by a four-year-old girl’s father Lisbon Miranda and her paternal aunt, Louella Fernandes, challenging a single judge’s order which had granted the custody of the minor child to her maternal grandfather Rajan Chawla.

The child’s father was a Christian, while mother a Hindu. The girl’s father was arrested on charges of killing his wife and is currently in jail. The minor has been staying with her maternal grandparents after the death of mother.

However, her maternal aunt, on instructions of the child’s father, contested the claim of minor’s grandfather Rajan Chawla for the custody of the child. The minor’s father also put up his claim for the custody of the child.

An argument was urged before the single judge on the fact that the father of the minor professes the Christian religion, while the maternal grandparents are Hindus. It was urged that the grandparents may not be able to initiate the child into Christian precepts.

However, this submission was not pressed in the appeals filed before the High Court and correctly so, noted Justices Dhananjay Chandrachud and SC Gupte.

“In any event, even if the aspect of religion is borne in mind, it is evident that the child was born in a family where father professes Christianity and mother was a Hindu,” the judges noted.

“Evidently, in such a situation it would be most inappropriate to assign to the religion of one parent such an overwhelming importance as to override the balance of other factors which bear on the welfare of the child,” the judges observed, while dismissing both the appeals.

The division bench also agreed with the single judge’s observation that it was a matter of significance that though the child was nearly three years of age when the mother met an unnatural end, she had not been baptised by the parents until then. Moreover, the mother had not converted to Christianity during her lifetime.

“This is certainly a matter of relevance and would also have a bearing on the wishes of the deceased parent. The wishes of a deceased parent in a situation such as the present where the mother has met an unnatural end at an early age becomes a fairly subjective if not hypothetical exercise,” the division bench said.

The legislature has guardedly used the words “the wishes, if any, of a deceased parent”. The Court must, in due regard to the statute, weigh this aspect together with all other circumstances, the judges noted.

“For all these reasons, we are of the view that the learned single judge was justified in allowing the guardianship petition filed by the grandfather of the minor child and in rejecting the Guardianship Petition filed by the paternal aunt,” the judges ruled.

During the course of hearing, counsel for the appellants made a grievance that guardianship has been granted to the maternal grandfather also over the properties of the minor. It was urged that this order should not indicate that the residential flat would necessarily have to be taken over by the maternal grandfather.

However, the High Court did not find any substance in the submission. The bench said that independent proceedings in relation to the residential flat are pending before the City Civil Court. The grandfather has been appointed as guardian over the person and the properties of the minor since he would be most suited to protect the interest of the minor.

“This would not come in the way of a disposal on merits of the proceedings which are pending in relation to the residential flat before the Civil Court”, the Judges noted.

Lisbon, a Roman Catholic married Bindiya, a Hindu, on October 5, 2008. Angelina was born on March 13, 2009. The mother of the minor died an unnatural death on May 25, 2012. The father was arrested and charged with offences of murder and cruelty under Sections 302 and 498A of IPC.


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