By Gyanant Singh
A Muslim woman whose son went missing at the age of four in 2004, lost a protracted legal battle to get back her son from a Hindu tea seller who brought up the child as his son after finding him in a park. Disposing of a petition filed by Shahnaz Begum eight years ago, the Supreme Court recently ruled in favour of the Hindu adoptive father who had brought up Akbar without changing his name or religion. Aiku Lal will retain custody of Akbar until he turns 18 — two year from now.
Akbar was four when he went missing from Allahabad and surfaced in Lucknow where Aiku Lal found him crying in a park. He had been living happily with the Hindu tea stall owner until Shahnaz claimed in 2007 that he was her son and sought his custody.
The story of the Hindu father-Muslim son had already hit headlines when Shahnaz came to claim the child.
With Aiku Lal refusing to let go of the child, Shahnaz took to judicial recourse by filing a habeas corpus petition before the Allahabad High Court in 2007. The high court, however, decided to let Akbar remain with the tea vendor because he 'explicitly and categorically' stated before the judges that he did not want to go with his parents.
"If there can be inter-caste marriages, which is not very uncommon, there can also be an inter-caste 'father and son' relationship and that need not raise eyebrows," the high court had said, while rejecting arguments that a Hindu should not be allowed to retain a Muslim couple's child.
Shahnaz rushed to the Supreme Court in appeal against the January 2008 decision. In what was a ray of hope to the mother, the Supreme Court ordered a DNA test which established Shahnaz as the biological mother of Akbar. But finally even this did not count when it came to the welfare and wish of the child. The court, while disposing of the matter on 23 February, allowed Aiku Lal to retain custody but directed him to send Akbar, who is now in Class XI, to live with his mother in Allahabad during summer vacations every year.
Though both sides were represented by lawyers, the Supreme Court bench presided over by Justice JS Khehar decided to hear Shahnaz, Aiku Lal and Akbar before pronouncing the verdict. While not letting DNA evidence overshadow the wish and the interest of the child, the bench pointed out that the high court had recorded in its order that Aiku Lal remained unmarried for the welfare of Akbar.
Akbar did not know his address or the name of his parents when he was found in Lucknow. Aiku Lal got him admitted in a school and gave his name in place of his father's. He, however, did not change Akbar's name nor attempt to change his religion. Shahnaz was able to locate her son with the media highlighting how the father-son duo made an unusual family. Shahnaz had alleged before the high court that her son had been detained as a bonded labourer by Aiku Lal to work at his tea stall.
With Akbar being with his father when he went missing, the high court said Aiku Lal, unlike Akbar¹s own father who was careless, was taking proper care of the child who was 'receiving education under his pateria-potesta'.
The high court further rejected the argument that a Hindu keeping a Muslim child might create disharmony in society. "We are after all a secular country and the consideration of caste and creed should not be allowed to prevail," the court said.
"All other considerations including the right to custody under any law, must yield, to the question of the welfare of the minor," the high court said, while taking note of the wish of Akbar who did not want to leave Aiku Lal.
Though the Supreme Court initially went into a fact-finding exercise by ordering a DNA test, it finally decided to give due weightage to the welfare of the child who did not wish to leave Aiku Lal. "Rather than altering the present arrangement, we, therefore, feel that it would be appropriate if Akbar lives with his mother during the duration of the summer vacation every year (from May to July) till he attains the age of 18 years," the bench said.
The bench pointed out that it would be open to Akbar to take a decision whether he wished to reside with 'his natural mother — Shahnaz Begum or his adopted father Aiku Lal' after he attained