The Gujarat High Court on Friday ordered the in-laws of a 40-year-old widow to hand over the custody of a four-year-old daughter to her, three years after the two parties continued a custody battle, following the alleged suicide of her husband.
Tasnim Habib Presswala, a Bangladeshi national of Indian origin and a resident of Godhra in Panchmahal, had moved court to vacate the ad-interim relief granted to her in-laws in 2022 by a HC bench while it was hearing a plea against the Godhra sessions court granting her the custody of her daughter.
The HC on Friday directed the in-laws to “handover the custody of the child to (Tasnim) within two days from the date of the order”, failing which, the district police station concerned “is directed to comply with the order”.
The court, while upholding the principle of “welfare of minor child”, rejected the claim of Tasnim’s sister-in-law Sahenaz that the family had “restrained” her from taking custody of the minor after the demise of her brother in November 2021.
Rejecting the contention of Tasnim’s in-laws that the mother was a Bangladeshi, who could be “deported”, the court held, “Prima facie, it appears that the opponents having no right to keep the custody of the minor against the will and wish of the mother (who is the applicant). The parties are governed by the Muslim Personal Law, which says that the mother is entitled to the custody of the female child until she has attained puberty.”
“In such circumstances, considering the tender age of a minor and the right of the mother… she cannot be deprived of her right to have custody simply because she is not a citizen of India. It is on record that on a long term visa, she is settled in India and since the last 38 years and more, she has been residing in India.”
The court added, “In such circumstances, the paramount consideration is the welfare of the minor child and not the legal right to be considered of the particular party. The term ‘welfare of the minor child’ has a wide connotation, which includes the upbringing of the child, education, proper shelter, love and affection of the mother, positive environment of life and other so many factors having bearing on the day to day life of the minor.”
Tasnim, born to Indian nationals residing in Bangladesh at that time, is a Bangladeshi national by birth but has been settled in Godhra since her childhood. The marriage between Tasnim and her husband, Habib, was solemnized in July 2017. Tasnim delivered twins in February 2020, of whom one survived.
The court noted that Habib allegedly died by suicide in November 2020 and while Tasneem was at her mother’s house during her Iddat period – mandatory confinement for widows as per Muslim laws – her two sisters-in-law and mother-in-law allegedly look custody of her one-and-half-year old daughter.
Tasnim’s advocate Hitesh Gupta said, “The judicial magistrate of Godhra in September 2022 had passed an order directing Tasnim’s in-laws to hand over the custody of the child to Tasnim. However, the in-laws filed a revision petition before the sessions court and the same was dismissed… They then approached the HC in 2022… the court granted interim relief to her in-laws and allowed Tasnim to visit the child every Sunday. But still, Tasnim was not allowed to meet her daughter and so she moved HC.”
Gupta added that since Tasnim’s application was pending before HC, she also moved the Supreme Court. “The SC, last August, had directed the HC to decide on her petition within six weeks… However, it was on Friday that the court finally decided on the petition.”
Gupta said when Tasneem visited her in-laws’ residence on Friday, the house was locked. “The mother-in-law and sisters-in-law have taken away the child on Friday… Since the court has directed them to hand over the custody within two days, we will wait. If the child is not handed over, we will approach the district police and also file a Habeas Corpus petition in HC.”
Source: Indian Express
BDST: 1617 HRS, FEB 24, 2024
MN/SMS
