The Bombay Court, in a recent judgement allowed a criminal writ petition filed by an Egyptian citizen seeking a writ of habeas corpus against his sister-in-law and mother-in-law for allegedly confining his 11-month year old son along with the demanding the custody of his child.
Khaled Kassem, the Petitioner, is an Egyptian citizen who got married to Soumi Ghosh under the Special Marriage Act, 1954 at the Egyptian Embassy in Myanmar in August 2014. Their son, Kian was born in 2019 in Pune. Although the Petitioner’s nature of job required him to travel frequently, he was present during the delivery of his child and also made frequent visits to spend time with him.
In April of 2019, Soumi, due to a medical emergency fell unconscious and was admitted to a hospital. However, she was declared to be dead soon after. Subsequently, his sister-in-law, Paulami, began to pressurize him to either leave the child with her and return to his job in Algeria or leave his job and settle down in Pune where they lived.
When the Petitioner refused her demands, Paulami with Kian moved to Egypt with the Petitioner. They also had a conversation about being together in the future when the Petitioner clarified that he had no intention of marrying her. Thereafter, the Petitioner took a new job in UAE which had fewer commitments in order to increase the time spent with his son and the three of them shifted there.
In September of 2019, Paulami began to insist on returning to India and although the petitioner was reluctant to do so in the beginning due to visa issues, he eventually obliged. On 29th September, it was brought to the notice of the Petitioner that Paulami had filed a criminal case against him alleging that he had sexually harassed her and the 6- month old Kian.
The arguments during the case primarily focused on the issue of the custody of the child and the application of personal law, considering the Petitioner followed the Muslim religion and the child’s mother had been Hindu by religion.
The Court comprising of Justice SS Shinde and Justice NB Suryawanshi observed that it would not be right to elaborate on the issue of religion since the child in question was at an extremely tender age and completely incapable of forming and expressing his wish. They also observed that the Petitioner was the only surviving parent as well as the natural guardian of the child. He was also economically stable and gainfully employed at a reputed position. Therefore, there was no valid ground for denying the child of the love, care, affection and protection of his father.
The Petitioner had also submitted an undertaking to the Court stating that if the custody of the child was restored to him, he would be willing to allow both Paulami and her mother access to their nephew and grandchild respectively, access throughout the year as well as the right to visit him in UAE.
In the light of the various contentions raised, the Court decided to allow the appeal and grant custody of Kian to his father.
Link for Image: https://bit.ly/2UjHxm1
Link to judgment: Khaled Kamal v. Paulami Apte & ors.