Bombay HC rejects Afghan woman’s plea for custody of four grandsons

The Bombay high court (HC) recently rejected the habeas corpus petition of a grandmother from Kabul, Afghanistan, who sought directions to her widowed daughter-in-law to come and live with her along with her four sons as it would be beneficial to the development of the four children

The Bombay high court (HC) recently rejected the habeas corpus petition of a grandmother from Kabul, Afghanistan, who sought directions to her widowed daughter-in-law to come and live with her along with her four sons as it would be beneficial to the development of the four children. The court, while rejecting the grandmother’s petition, held that the best interest of the children was to be with their mother and due to the situation in war-torn Afghanistan, the daughter-in-law had a right to stay back in India. The court, however, granted visitation rights to the grandmother and paternal aunt while dismissing the petition.

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The daughter-in-law who was originally an Indian had married an Afghani man who had come to Mumbai for education in 2010 and had moved to Afghanistan and had borne four sons. However, she was widowed in 2018 after which she returned to India with her four sons and started living with her parents and brother in Kalyan.

A division bench of justice SS Shinde and justice Manish Pitale, while hearing the petition of the 79-year-old grandmother was informed by advocate Mohammad Adenwala, that his client was not seeking to separate the children from their mother, hence the petition sought that the mother and four children accompany them to Kabul where they could live a life of comfort and ease as opposed to the life she and her children were living in Kalyan.

The grandmother further claimed that the four brothers and a sister of the deceased had agreed to take care of the financial needs of the widow and her children if she returned to Kabul.

After marriage in India, the couple had shifted to Kabul. However, in 2018 the husband was killed in a bombardment by government forces, while the fourth child was still in the womb. All four children had an Afghani passport even though two were born in India. After her return to India in 2018, the woman started residing with her brother and parents at Kalyan allegedly in a single room tenement. This was the reason why the grandmother and paternal aunt of the children approached the HC seeking directions to the woman to return to Kabul with the children.

However, advocate Uzair Kazi for the woman, her parents and brother informed the court that the woman was financially secure, hence the assumptions by the grandmother were misplaced. Kazi further submitted that due to the warlike situation in Afghanistan, the woman feared for the lives of her children and hence believed that staying in India would be more beneficial for the safety and prospective future. He also submitted that as per Muslim Law, the mother had a paramount right to have custody of the children and hence the prayers of the grandmother and aunt be rejected.

After hearing the submissions, the court observed, “We believe that on the test of best interest and welfare of the children, it would be appropriate that they continue in the custody of their mother i.e. respondent No.2. In any case, the custody of the children with their mother is neither illegal nor improper and therefore, we are not inclined to issue a writ of habeas corpus as prayed by the petitioners.”

While dismissing the petition the court directed visitation rights to the grandmother and aunt when they come to India and weekly interaction with the children through video calling on weekends.