THE ALL India Democratic Women's Association has strongly protested against the recent Supreme Court judgement, which they feel legalises illegal custody of a child by a parent.
The organisation has demanded that the Apex Court set up a wider bench to decide a on common approach, which should be taken in matters of infant/child abduction.
The court decision of March 3, in which it dismissed the writ concerning a one-and-a-half-year child who was forcibly and illegally removed from his mother, has come under severe criticism by the women's organisation. The particular case concerns Sumedha Nagpal, who was subjected to sustained violence by her husband during two years of her marriage, then was illegally confined and finally her 20-month-old son was abducted.
Addressing a Press Conference here today, Brinda Karat, AIDWA general secretary, said, "this decision gives licence to any husband in any matrimonial dispute to forcibly abduct the child and keep him or her in his custody".
Pointing out that under the Hindu Minority and Guardianship Act "the custody of the minor who has not completed the age of five years shall ordinarily be with the mother", she said that the law recognises that it is absolutely necessary for a small child to be with the mother for its nurturing and well-being.
"Unless the mother is proved to be unfit, the child has to under all circumstances be in the custody of the mother without her having to prove that it was in the child's welfare. But this judgement changes all that, said Kirti Singh, legal counsel, AIDWA. "It shifts the onus of proving that the welfare of the child is with the mother on the woman her rather than the father", she said.
The court held, "in the pleadings and the material placed before us we cannot say that there is any, much less clinching, material to show that the welfare of the child is at peril and calls for interference". By stating this, the order not only justifies the child being illegally abducted by the father, but even goes a step ahead. It states, "the trauma the child is likely to experience in the event of change of such custody pending before a court of competent jurisdiction will have to be borne in the mind".
"They are taking the trauma the child will face into consideration, but what about the trauma the child has already faced when he was taken away from the mother?" questioned Karat.
"I have not been with by child for over eight months now. I fear that he will forget me," said Sumedha, her eyes welling up. But the SC decision will not be the end of her battle. "I have been forced to go back to the lower guardianship court. It will take a long time. But I will fight to the finish," she said and added "they have ruined my life, all I have left is my child and I will definitely get him back".
Unfortunately, a memorandum submitted by the organisation to the Chief Justice asking for a review has not changed matters. "The CJ heard us, but said that no administrative measures could be taken". According to him it depended on the "perception of the judges".
