In a significant ruling, the Bombay High Court recently held the fundamental right to life to be more important than the right to religion, enshrined in the Constitution of India. The court also held that in cases of child’s custody, the ‘welfare’ of the child is of greater importance than his/her religion.
A single-judge bench of Justice Mridula Bhatkar said, “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 guaranteed in the Constitution of India. Though the Constitution grants the Right to Religion, under such circumstances, right to life stands on a higher pedestal than the right of religion.”
“In fact, all religions have noble principles and thoughts wherein human dignity is revered. No religion teaches that the child be exposed to vices, dishonesty and falsity. The child is innocent, rather innocence is itself inseparable from the child. Thus, the welfare of the child very much includes protection of innocence of the child,” Justice Bhatkar added.
Justice Bhatkar was dealing with an appeal filed by one Firoza Popere, the paternal grandmother of a minor girl, challenging the orders of a lower court. The lower court had granted the girl’s custody to her maternal grandmother – Usha Dhananjayan. The paternal grandmother, a Muslim by origin, wanted the custody of the girl given the fact that the child was staying with her since she was six months old.
She wanted the custody so that the child can profess Islam, the religion she has been following since her birth. On the other hand, the maternal grandmother wanted the child’s custody so that she could follow Hinduism.
The grandmothers battled for nearly nine years to get the child’s custody. During this protracted litigation, Firoza had filed a complaint against Usha and her sons, accusing them of sexually exploiting the minor girl during the period when she had been to their house in summer vacations.
However, when Justice Bhatkar interviewed the girl, she found her to be tutored by Feroza. “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’. Here, this minor girl is the most unfortunate child who has lost the love of both her father and mother and is shuttling between her two grandmothers,” Justice Bhatkar observed.
Terming as “unhealthy” the atmosphere in Feroza’s house for the girl, Justice Bhatkar further said, “The atmosphere is bound to crush her innocence and will scuttle her normal mental growth, as she will be a victim of continuous malice, false allegations, vengeance etc. Though the religion by which the child is governed is to be taken into account, the ‘welfare’ of the minor is the paramount consideration. Thus, the religion is one of the determinants and is not the only determinant.”
Accordingly, Justice Bhatkar directed Feroza to hand over the girl’s custody to Usha, who is now appointed as the new guardian of the child. The court has asked Usha to send the child to Feroza’s house only for festivals or other religious occasions.