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Tuesday, May 18, 2021

Bombay HC refuses Afghan woman’s plea seeking custody of grandsons living in India

The HC rejected the woman’s plea, holding that the situation in India was better than in “war-torn” Afghanistan and a return to Kabul could “cause physical and psychological harm” to the woman and her children. Their “best interest” was in staying on in India, the court said.

Written by Omkar Gokhale | Mumbai |
April 21, 2021 9:49:35 pm
Bombay HCThe Court will hear the PILs next on May 19 (File Photo)

The Bombay High Court recently rejected the plea of an Afghanistan woman who sought directions to her widowed daughter-in-law, an Indian national residing near Mumbai, to go and live with her in Kabul along with her four sons.

She claimed the financial condition of the daughter-in-law — who was staying with her brother and parents near Mumbai — was not sufficient for development of the children.

The HC rejected the woman’s plea, holding that the situation in India was better than in “war-torn” Afghanistan and a return to Kabul could “cause physical and psychological harm” to the woman and her children. Their “best interest” was in staying on in India, the court said.

The HC, however, granted visitation rights to the grandmother and paternal aunt while dismissing the petition and also said they can interact with the children through audio or video facilities as per mutual convenience.

A division bench of Justice S S Shinde and Justice Manish Pitale on April 20 passed a judgment on a habeas corpus plea by the children’s grandmother and paternal aunt, both Afghan nationals, seeking directions to the daughter-in-law to produce her four sons before the court and hand them over to the petitioners.

The court noted that the late son of the petitioner was earlier studying in Mumbai and had got married to the Indian woman in July 2010, after which they moved to Kabul. Of four sons born to them, two were born in India in 2012 and 2014 and the other two were born in Afghanistan in 2016 and 2017, with all four sons holding Afghanistan passports.

The court noted that in May 2017, when the respondent mother was pregnant with the fourth son, her husband was killed in Kabul during bombardment carried out by the Afghan government forces against terrorists. After the fourth son was born, the woman returned to India in 2018 with all her children and started residing with her brother and parents in Kalyan near Mumbai.

Advocates Mohammed S Adenwala and Priya Patkar for the petitioners submitted that their clients had visited India in January 2020 to meet the daughter-in-law and her children and found that they were living in “poor condition”. While the petitioners requested the woman to accompany them with her children to Kabul to live together in their “spacious house”, the woman refused, prompting them to approach the HC.

The daughter-in-law, through advocates Uzair Kazi and Ayoshi Soni, denied claims of her children living in the “state of penury” in India and said she has her own reasonable source of income and her brother is taking care of the family. She was in shock after her husband’s violent death and did not wish to go back to Kabul, where the future of her children was “obviously bleak”.

Kazi also submitted that the mother has “paramount right” of custody of her children as per Muslim law since their father had died.

After hearing submissions, Justice Pitale who authored judgement for the bench observed, “The best interests and welfare of the children would be in their living with their own mother in India. At the same time, we are of the opinion that petitioners certainly have a right to continue their association with the children and that they deserve to be granted visitation rights.”

 

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