A two judges bench of the Mumbai High Court through an order dated December 30, 2019 restored the custody of an infant to his Egyptian father from his grandmother and aunt. Both of them were taking care of the infant since his Indian mother died after 2 months of delivery in Pune.
The order said that the 11 months old infant was held in ‘improper detention' and his father deserved to get back his custody. The court also ordered the police not to take any coercive actions against the father and his family when they come in India.
The bench which gave this decision comprised Justice S S Shinde and N B Suryavanshi. They said that “the child cannot be deprived of his father's love for no valid reason”. But the bench also recognized the amount of care and love given to him by his grandmother and aunt so it granted them visitation rights and video calling access.
Navroz Seervai and Subir Kumar appearing for the father's side argued that the decision should be taken according to the Special Marriage Act, 1954 as the couple got married under the same law in Myanmar in 2014. But the counsel of in-laws argued that the father is muslim, the child would be a muslim too so Muslim personal law should be applied according to which maternal grandmother can retain the custody. On this the high court said that "It would be harsh to brand him by a particular religion since he is of very tender age and not capable of forming or expressing his wish."
The father filed a writ of habeas corpus (an order to produce in court someone who is unlawfully detained) in high court. Seervai pointed out that “settled law that writ of habeas corpus lies to restore the custody of a minor from a person who is not his legal guardian.”
The Egyptian father met the Indian mother when he was working for a multinational company in India in 2007 and fell in love with each other.
Author: Aditi Dubey
