Observing that religion cannot be thrust upon a child, the Bombay High Court has rejected a plea to hand over the custody of a three-year-old girl, born to a Christian father and Hindu mother, to her paternal family who wanted to raise her as a Roman Catholic.
The matter pertained to a minor girl whose father had fatally stabbed his wife and was behind bars. The father, his sister and the girl's maternal grandfather had filed guardianship petitions seeking custody of the child.
The girl's father and aunt submitted that they wanted the child to be raised as a Roman Catholic. They said Catholic rituals must be performed and she must attend a convent school where the ideals of Christianity would be taught.
Justice Roshan Dalvi observed, "It would be insulting to Christianity to see the father of the child, who is a Christian, being convicted of murder of his wife. The child would not get the ideals of Christianity from a father who has been imprisoned during her minority having been charged with murder of her mother and cruelty towards her."
The Judge also dismissed the argument that a man's religion must prevail upon his child, saying it was directly contrary to the freedom of religion under the Constitution and it would also be gender discriminatory.
The Court decided to give the custody of the child to her maternal grandfather, taking into consideration the fact that the girl, after her mother's death, was living with her maternal grandparents.
The judge observed, "There is no greater religion among the great religions. What is to be understood in consideration of religion of the minor is that a minor who has been brought up on the tenets of any of the great religions be not disturbed by thrusting upon the minor the tenets or traditions of another religion which would cause stress and trauma upon the minor during the delicate years of his or her growth".
"It would be in the interest of the child if she is kept away from any religious dogma to which she has not been exposed in her infancy so as to leave her childhood care free and stress-free," the judge further remarked.
The girl's paternal aunt argued that section 17 of the Guardians and Wards Act, 1890, requires the Court to take into consideration the religion of the child and that of the proposed guardian.
Her lawyer Uday Warunjkar contended that since the father of the child was a Roman Catholic, the girl must be brought up as a Roman Catholic.
However, the judge rejected the argument stating that the concept of religion, as envisaged in section 17 of the Guardians and Wards Act, does not contemplate that in our patriarchal society only the religion of the husband must prevail.
The judge opined that this would be contrary to the freedom of religion, which allows each individual to profess and practice the religion of his or her choice. It would be in the interest of the child of she is kept away from any religious dogma.
The Judge further observed that the child had already adjusted to living with her grandparents and that there was no reason to disturb the custody of the child at the behest of her father, who has at this stage, rendered himself unfit for seeking her custody.
The Court noted that the girl's aunt had not sought the custody of the child until December and that her guardianship petition was not self-motivated but filed on instructions of her father from jail.