We have heard many cases and circumstances in which the importance of giving custody to the child is being highlighted. But the warmth and affection of the father are also of a prominent nature. The Bombay High Court has recently passed a decision in which after the death of the mother the custody of the child was given to the father. In the present case, titled as Khaled Kamal Hussein Mohamed Kassem vs Paulami Apte, an Egyptian citizen filed a writ petition of Habeas Corpus against his sister-in-law and mother-in-law for illegally detaining his 11-month-old child. A bench of Justice SS Shinde and Justice NB Suryawanshi delivered the judgment.
The brief facts of the case are:
In October 2012, he got engaged with Soumi Ghosh after being in a relationship for 5 years and in August 2014; they got married in an Egyptian Embassy in Myanmar. Their son, Kian, was born on Feb 03, 2019, in Pune. Although the petitioner kept traveling 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.
In one incident of losing consciousness followed by emergency medical treatment, his life lost her life. The petitioner contended that soon after the death of his wife the sister-in-law insisted he leave the job in Algeria and to shift in Pune. But he did not agree to her terms. Then they shifted to UAE where the petitioner did not have a job commitment. He did so as he wants to spend more time with his son. The petitioner stated that Paulami (his sister-in-law) kept his son away from him in a different room and kept the door locked.
On Sept 2019, the petitioner with Paulami shifted to India and on 29th Sept the petitioner gets to know that Paulamai has filed a complaint of sexual harassment against him of sexually assaulting her and his son Kian, who was only 6 months old at that time.
The Learned Counsel of Paulami stated that the petitioner is ‘unfit’ to be a father. She further stated that it is settled position under the Mohammedan Law that the maternal grandmother has the first right to the custody of the child in the absence of a biological mother. Therefore, there is no illegality about the custody of the child by Paulami and her mother; she argued referring to the petitioner’s religion.
The Court observed that separate proceedings will be carried out to prove the father ‘unfit’. Moreover, the father is financially stable to take care of the child as he has frequently visited him the child in the past also when his mother Soumi was alive. The Court also asserted that the petitioner is the only surviving parent of the child. The child is only 11-months old and definitely needs the love, care, and affection of the father. Keeping in view of the qualification of the Petitioner, so also he is gainfully employed and working in a reputed position, there is no reason to deprive him of having custody of child Kian. The child lost his mother when he was just two months and he cannot be deprived of the love of his father for no valid reason.
The petitioner also submits an undertaking stating that if Court would allow him the custody of the child he would allow his sister-in-law and mother-in-law to meet Kian throughout the year. The petitioner finally got custody of the child.