“It would be insulting to Christianity to see the father of the child, who is a Christian, being convicted of murder of his wife. The child would not get the ideals of Christianity from a father who has been imprisoned during her minority having been charged with murder of her mother and cruelty towards her.”

Justice Roshan Dalvi made this observation in the Bombay High Court on December 8, 2012 while delivering a judgment in a case. To deal with the specifics here – a man had been convicted of having murdered his wife. The couple had a minor daughter who was living with her late mother’s parents. It so happened that the convicted husband happened to be a Roman Catholic and the deceased wife a Hindu. The sister of the convict moved the Court to seek the custody of the minor child as she claimed that under Section 17 of the Guardians and Wards Act, the religion of the child had to be given primacy.

Her lawyer went so far as to claim that since the father of the child was a Roman Catholic, the girl must be brought up as a Roman Catholic.

Justice Dalvi rejected the argument stating that the concept of religion, as envisaged in Section 17 of the Guardians and Wards Act, does not contemplate that in our patriarchal society only the religion of the husband must prevail. She also opined that this would be contrary to the freedom of religion, which allows each individual to profess and practice the religion of his or her choice. It would be in the interest of the child if she is kept away from any religious dogma.

She ruled – “there is no greater religion among the great religions. What is to be understood in consideration of religion of the minor is that a minor who has been brought up on the tenets of any of the great religions be not disturbed by thrusting upon the minor the tenets or traditions of another religion which would cause stress and trauma upon the minor during the delicate years of his or her growth”.

She went further and stated – “It would be in the interest of the child if she is kept away from any religious dogma to which she has not been exposed in her infancy so as to leave her childhood carefree and stress-free”.

The landmark judgment is remarkable in more ways than one. The Indian courts, particularly the lower ones, have had to rule on similar issues over and over again. I have observed instances where convicted persons have time and again made a plea for their offspring to be brought up within the tenets and orthodoxies of their own religious faith. Only 6 months ago, a patient of mine had to wage a legal battle against her alcoholic husband who had been convicted of battery-and-assault. The husband happened to be a Muslim and the wife a Sikh. They had got married in a civil ceremony. After hearing both sides of the argument, the magistrate ruled that the religion of the father had to be given primacy despite his obvious failings, which included his alcoholic indulgences completely inimical to the Islamic tenets. The interesting feature was the support that the convicted husband could count upon from his local clerics.

I had come across a similar case in Philadelphia where a man who had been convicted of fraud had unsuccessfully applied to the Court to make sure that his 23-month-old son was brought up as a Pentecostal born-again Christian. He was vociferously supported by a well-known tele-evangelist who also provided him the funds to meet his legal bills.

Justice Dalvi has adopted a refreshingly humanistic approach for which she is worthy of the highest accolades. Her ruling would hopefully serve as a reference point for resolution of this not so uncommon situation. Her dismissal of the argument that a man’s religion must prevail upon his child, saying it was directly contrary to the freedom of religion under the Constitution and also gender-discriminatory, is particularly laudable.

The philosopher AJ Ayer had an oft-repeated doctrine – “No morality can be founded on authority, even if the authority were divine”. I do not need to over-emphasise the far-reaching implications of the judgment. But to my dismay, there has been no editorial comment on it in any of the major newspapers, nor has there been a television discussion on the subject. Only two columns in The Statesman and a few regional newspapers. For me, it is a matter of both astonishment and dismay as this seems to be an indication that the matter does not deserve to be prioritised. It would be very unfortunate if this was indeed the case.

Newspapers in India have tended to treat issues involving religion with a degree of caution. Many a journalist has come to grief even while dealing with religious issues with utmost good faith. That could possibly be one of the reasons for this amazing journalistic apathy.

However my humble submission here would be that an issue of exemplary importance like this should be a subject of national debate and definitely not brushed under the carpet.

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