A Jamshedpur court's order to give custody of two minor children, to their mother Priya Rani, allegedly converted to Islam, has triggered a legal debate as to who could be the legal guardians under the circumstances.
The legal question was thrown up after Priya's husband Vinod Kumar lodged an FIR, accusing his wife's 'lover' Md Sadiq of forcibly converting their two minor children into Islam and thereby, subjecting his children to khatna or circumcision. Sadiq, among other charges, was also accused by him of extorting Rs 20 lakh from him as ransom.
While the woman has claimed that she was staying with the man of her own volition, and did not convert to Islam.
Vinod and Priya, residents of Biharsharif in Bihar, were married in 2005. Sadiq, according to Vinod, is already married and has two children. "He has brainwashed my wife to extort money from me. He has converted my wife and our children to Islam," he has alleged.
Vinod, an automobile engineer from Odisha had gone to Oman for better prospects. His wife and two kids went missing in 2010 from Indira Gandhi Airport Delhi when they were expected to take a flight to Muscat.
last Wednesday, Vinod had tweeted to Chief Minister Raghubar Das, saying he suspected his kidnapped wife and children were being held hostage in Jamshedpur.
Analysing the whole situation from the kids' angle, the family environment has got quite complex and vitiated.
The two children, according to documents made available by Kids International School, Mango, on Tuesday, reveal that their names were Sujaan Asiq and Saysha Ashiq, son and daughter of Md Sadiq and Priya Ashiq, and they attended the school from year 2014 to 2017.
The school said that they attended classes till March 2017, implying that that they have discontinued studies for the last seven months.
The biological father, Vinod Kumar, residing far away from them in Oman, might not have cared for them properly, prompting his wife to find a new partner, who is now in jail.
The documents furnished by VHP leader Arun Singh from the school and birth certificate issued by Rajrangpur municipality registered on 28-2-2012 in Odisha mention Md Sadik (Sadiq) and Priya Asiq as parents of the two kids.
Interestingly, in 2008 the Bihar Sharif municipality in Bihar had issued birth certificates to the two kids with Binod Kumar and Priya Rani as parents.
Vinod alleged that the two kids were converted into Islam and fake birth certificates were used to get admission in the school.
Now, the question arises as to what should be the best in the interest of the children.
Under the Juvenile Justice Act, "child in need of care and protection" means among other conditions a child (a) who resides with a person (whether a guardian of the child or not) and such person has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or (b) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee (Child welfare committee) or the Board, to care for and protect the safety and well-being of the child; or who is being or is likely to be abused for unconscionable gains.
So, the role of the CWC, under the JJ act, is to determine in the best interest of the children and find them a safe home and environment either with their original parents or adoptive parents or in an institution.
The CWC will instruct the local police station to file a report against the abusers under the relevant IPC provisions.
Incidentally, the CWC in Jamshedpur, has not taken a call in this regard, which it can do suo motu, nor the court has asked it to file a report assessing the capacity of the father and mother to serve the best interest of the children.
It may be emphasized that under the modern law guardians exist essentially for the protection and care of the child and look after his or her welfare. This is expressed by saying that welfare of the child is paramount consideration and welfare includes both physical and moral well being.
In Hindu law only three persons are recognized as natural guardian -father, mother and husband. Section 19 of the Guardians and Wards Act, 1890 lays down that a father cannot be deprived of the natural guardianship of his minor children unless he has been found to be unfit. And this can be best judged by the CWC only. The father's right is subordinate to the welfare of the child.
Vinod's friend Rakesh Rawat, said that they are gathering evidence to nail Sadiq for religious conversion and abduction.
Also, it has to be established whether Priya Rani had married with Md Sadik after conversion to Islam or not, because Nikah can happen only when both of them should be following Islam. If she was not converted, such as a marriage would be declared void.
Inter-faith marriage is allowed and can be registered under Special Marriage Act only. Also, Priya can't marry Sadiq as she had not got divorce from Vinod.
"I am solely concerned about the well-being of my two children and want their custody. I am even willing to give my wife another chance for the sake of our children," Vinod, a native of Dhansar has said.