Custody battle in Supreme Court: Muslim mother vs Hindu guardian
NEW DELHI: An unusual instance of communal harmony landed before the Supreme Court on Wednesday, which opted to take a humanitarian approach, rather than follow the dictates of law mechanically, to resolve a dispute.
Six-year-old Akbar went with his father to a roadside drinking joint in Allahabad in 2004. While the father was drunk, the child disappeared. Strangely, the parents did not lodge a missing complaint with the police.
The child surfaced in Lucknow before a tea stall in Qaiser Bagh. Its owner Aiku Lal took pity on the boy and advertised about him in TV channels hoping to contact his parents — Mohammad Abbas and Shahnaz Begum. When he got no response, he looked after him as a son, admitted Akbar to a school without changing the child’s name or religion.
Three years later, the parents came to know about Akbar living with Aiku Lal and moved the Allahabad High Court seeking his custody. They accused Aiku Lal of using the boy as bonded labour. Aiku Lal proved with school mark sheets and other documents that he had been taking care of the child like his son and that he had decided not to get married because his prospective wife could take objection to the Muslim boy.
Akbar too refused to go with his parents being fond of Aiku Lal. Justice Barkat Ali Zaidi of the HC in 2007 ruled, “We are after all a secular country and the consideration of caste and creed should not be allowed to prevail. If there can be inter-caste marriages, which is not very uncommon, there can also be an inter-caste father and son relationship and that need not raise eyebrows.”
The HC said: “It would not be fair and equitable to return the minor to his parents against his will. The preference of the child must be given due weightage.” The parents then moved an appeal before the Supreme Court.
An SC bench of Justices D K Jain and H L Dattu made no secret of their surprise over the mother not even lodging an FIR for years about her missing son who strayed uncared for when his father was consuming liquor.
“We know the mother is the natural guardian under the law. It is an easy dispute to solve. But, the child does not want to go back abandoning the man who brought him up,” the bench said while inquiring about Shahnaz’s income and liability as the boy’s father has passed away in the meantime.
Her counsel told the court that she had two school going children — an 8-year-old son and a 6-year-old daughter — and that she had two houses and also zari work business. But an inquiry by the bench elicited contradictory facts. It asked the counsel to file an affidavit from Shahnaz within a week detailing her income, liability and the school fees being paid by her.
Before asking for the affidavit, the bench wondered: “Why would we order the boy, who has now spent seven years under the good care of the person, be given back to the mother disregarding the child’s wish. The man did not even change the child’s name while admitting him to school. The mother did not lodge a complaint about her son missing. So, let the child attain majority and himself decide the question.”
But, her counsel said there were instances of children being kidnapped and suggested a meeting of the mother, Akbar and Aiku Lal with the child welfare society, which has psychiatrists to determine the correct position.