In a one-of-its-kind of petitions, a father has sought custody of his daughter who has been virtually kept hostage by her maternal uncle in Australia after the death of her mother. The father has raised an important question of law: Whether in normal circumstances a natural guardian can be deprived of the custody his own child on the death of the spouse.
For almost 12 years, Ramswarup laluram Kabra has been trying to take possession of his daughter, who since her birth on June 17, 2005, has been staying with her maternal uncle Rajesh Bangur’s family in Australia.
Kabra has come to the Supreme Court after fighting a protracted legal battle in Australia. On December 1, 2008, the Federal Magistrate Court at Dunkley, Australia, allowed Kabra and Bangur to have “shared parental responsibility” over the child. For the next two years, the court ordered that the daughter should be allowed to spend four days every week during her school vacations with the father. On days when the school is open, she was allowed to communicate with Kabra every Sunday through Skype. These orders were passed to ensure the child developed an attachment and bond with her father. Kabra alleged that Bangur did not allow him to meet his daughter or speak to her over Skype in defiance of the judicial order.
On February 14, 2011, the same court modified its earlier order and gave full “parental responsibility” to Bangur and his wife to raise the child along with their own two children. Kabra has since re-married and has a son from his wife’s previous marriage. His new family too is keen to get the daughter back.
Taking note of the peculiar situation in which the father was placed, a Supreme Court Bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud sought a response from the Centre on January 22, when the matter was first taken up. Appearing for Kabra, senior advocate Harin P Raval along with advocate Anirudh Sharma pointed out that the Australian Court has no jurisdiction in a case of this nature as the marriage between the petitioner and his now deceased wife was under the Hindu Marriage Act. The child is a Hindu and the concept of guardianship under the Hindu Minorities and Guardianship Act 1956 gives precedence to natural guardian.
At present, the father of the child is the only surviving natural guardian after the child’s mother died on September 12, 2005, after developing complications due to childbirth.
Now for the past four years, Kabra has neither been able to meet nor talk to his daughter, forcing him to file a habeas corpus petition in the SC to locate her. The apex court has also directed issuance of notice to Bangur, who incidentally is in India on an annual vacation till February 3, 2018. The court will take up the matter on Monday.