AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. _________ OF 2008

IN

WRIT PETITION NO. 3159 OF 2006

ASHOK ALIAS SANTOSH BAGIRCHA 

ALIAS JAIN & ORS.                                                            .. PETITIONERS

            VERSUS

THE CHILD WELFARE COMMITTEE

& ANR.                                                                       .. RESPONDENTS

            AND

SHRI JAIN SHASANAM,                                        .. APPLICANT

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION:

I, JAYANTILAL V. SHAH, of Mumbai Indian Inhabitant trustee of the Applicant Trust having address at _____________________________________ do hereby solemnly affirm and state as under:-

1.            I say I am aware of the facts of the matter and authorized to depose to the same.

2.            The Applicant is a religious trust formed by Jains in Mumbai in the year __________. This trust performs various religious, educational and charitable functions for the benefit of Jains as well as other communities in the city of Mumbai. By the present Notice of Motion this trust seeks to intervene in the above matter since the outcome of the petition is bound to have far reaching consequences on the way and manner in which Jainism is practiced in today’s day  and age.

3.            The present Petition has been filed by one Ashok Jain since there were objections raised by the Child Welfare Committee (“CWC”) to his daughter, Priyal having taken DIKSHA at the age of 8 years to become a Sadhvi. I say that the practice of taking DIKSHA as well as BALDIKSHA amongst Jains is an age old practice prevalent for more than about 2500 years and to date there have been no instances of dissatisfaction or abuse of children who have taken DIKSHA so as to warrant the intervention of the CWC under the provisions of Juvenile Justice Act. I say that under the Juvenile Justice Act the only cause or reason for an authority to intervene in a matter would arise in case of “a child in need of care and protection”. I say that the very basis of interference by the CWC is unfair and arbitrary since in case of children who take BALDIKSHA there is no question of there being a need of care and protection since adequate care and protection is already given to them by the various Sadhus or Sadhvis under whose care they are and under whom they perform their daily functions as also by various trusts, Sanghs and Societies which look after the well being of Jain Sadhus and Sadhavis.

4.            I say that Article 25 and 26 of the Constitution of India mentions that every person shall have the right to practice his or her own religion as he or she thinks fit only subject to morality and public order. It is enshrined in our Constitution that there will be no interference in  the right of a citizen to practice his or her own religion in the manner that he or she may desire.

5.            I say that in much the same manner that adults are entitled to practice their own religion so also children have similar rights under the constitution. I say that the CWC in the present case has overstepped it’s authority by showing scant respect for the religious beliefs and customs of Jains which have been in practice since the last 2500 years or more. It is pertinent to note that such beliefs and customs being adhered to by children are common place in India amongst various communities for e.g. in Muslim households also each and every member of the family including children usually observes Roza during the month of Ramzan and as per the practice a Muslim is not allowed to eat or drink anything from sunrise to sunset to the extent that he is not even allowed to swallow his own saliva. From the view point of non-believers this is naturally of an extreme nature and it is something that only a staunch believer in the Islamic faith will be able to understand. Therefore when a Muslim father asks his son to follow the practice of Roza during the month of Ramzan there would be no cause or reason for the CWC to interfere in the matter.  Furthermore even amongst Christians it is not unheard of for  young girls from the age of 10 years onwards or in some cases even younger to join a monastery to become a nun after completely sacrificing a normal life style in the ordinary world. Further under various other sects of Hinduism the concept of children taking sanyas or diksha (e.g Swaminarayan Sect) is not uncommon. So also in the case of a Jain child who wishes to take DIKSHA and renounce the world, there is  no cause or reason for the CWC to object to the same.

6.            I say that it is pertinent to note that taking DIKSHA is not an overnight prospect amongst Jains. A person  who wishes to take DIKSHA should first inform his or her parent if he or she is a minor, who would then examine the child as to whether the child has leanings towards worldly belonging and temptation and if satisfied only then would they introduce the child to a Jain Sadhu and Sadhvi for the purpose of taking DIKSHA. Once the child has been taken under the fold of the Sadhu or Sadhvi then the same exercise of checking the child’s compatibility with the life style of a Sadhu and Sadhvi would be undertaken by the said religious leader who has taken the child under his or her fold. It is only after this kind of rigorous examination over a reasonable time which may extend to many years depending on the child that the child will actually be permitted to take complete DIKSHA. Therefore for an organization like the CWC to interfere in such matters with a myopic view that any hardship faced by a child is beyond endurance by the child is in fact an unfair and unjust view and deserves to be corrected. I say that over and above what is mentioned herein above, it is equally true that taking of DIKSHA is not an irreversible procedure.

7.            I say that the report of the committee formed by this Hon’ble Court is flawed as there was no person of the Jain faith as part of the committee and hence  a view point from the religious aspect of Jainism was never considered whenever the child was examined by the committee. I say that the report of the committee has taken a very myopic view of the hardships which are voluntarily undertaken by a person taking DIKSHA. I say that what appears to  be hardship to a person in the ordinary world need not necessary be a hardship for a person taking DIKSHA or for a  Sadhu or Sadhvi. I say that such hardships are voluntarily undertaken by such Sanyasis so as to condition themselves against various hardships that may come their way in their life. It is only part of this conditioning process that hardships like fasting, plucking of hair, walking barefoot are taken so as to enable a Sanyasi to achieve infinite happiness or freedom from worldly matters more commonly known as MOKSH and this conditioning is only a step in that direction.  In fact Jainism prophesizes that the ultimate aim of every being into attain happiness and therefore sanyasis are taught to condition them in such a way that they find happiness under all conditions. They believe that when one finds happiness even in sorrow and pain then Moksha itself comes knocking on his doors.

8.            I say that applying regular rules and laws to matters of religious leaning and significance is completely unfair and unjust since the entire religion and its various aspects functions in a sphere entirely of its own. I therefore state that when matters of religious practice are concerned one cannot and ought not to blindly apply various rules and provisions of law without an indepth study as to whether such application would be justified in the first place. I say that while in the ordinary world the  pursuance of wealth, power and prestige and economically or physically acquired happiness or materialistic gain may be of primary importance, in the religious world this pursuance of wealth finds no place since it is only a pursuance of Moksh which drives a Sanyasi.

9.            I therefore state that when the said committee questioned the said child Priyal as to whether she watches television or enjoys various goodies that children normally do, it was a rather flawed and inappropriate line of questioning which showed a complete lack of depth and disregard towards matters of religious practices and customs.

10.         I therefore state that it is of extreme importance that at such a crucial examination of a child who has taken DIKSHA it is necessary that she be accompanied by her own guru who in fact is her guardian in the religious world into which she has stepped in.

11.         I say that even the United Nation recognizes the right of a child to practice his or her own religion. In fact the United Nation Convention on Rights of Children (UNCRC) has amongst its articles that the right of a child belonging to an ethic or religious minority shall not be denied the right in community with other members of his or her group to enjoy his or her culture or to profess his or her own language.

12.         I therefore say that since the rights of a child are also recognized by the United Nations the right of the said child Priyal (now known as revered Sadhviji Shri Pritrarsha Shirji Maharaj) to take diksha ought not to be interfered irrespective of what age she may be.

13.         I say that various courts of justice in India have also time and again  emphasized that the right  of a person to practice his or her own religion is enshrined in the constitution and this being one of the tenets of our constitution such rights ought not to be interfered with.

14.         I say that it is  pertinent to note that even in cases of matrimonial disputes a child of a minor age is allowed to elect as to which parent he or she would prefer to live with. I say that running down the practice of Baldiksha on the ground that the child of a minor age cannot decide for itself while at the same time expecting a minor child to elect between parents in matrimonial disputes exhibits double standards in the system.

15.          I therefore  say that the psyche of a child before he or she takes dikshas cannot be the subject matter of a committee such as CWC.

16.         I further say that it is a misnomer that children who take diksha are completely unexposed to education of any sort and that they are subjected to begging from door to door. I say that such beliefs are far from the truth since various Jain Trusts regularly hold classes etc for Jain Sadhus and Sadhvis so as to enable them to gain Knowledge of various subjects relating to science, economic, history etc. as also languages were English or any other subject in which a particular Sadhu or Sadhvi may develop interest. It may also be noted that at such study groups, teachers and professors from various educational institutions are also invited to teach the students at the cost and expense of various Jain Trusts. It is a matter of great pride and honor not only for Jains but also for members of various committees to have a Jain Sadhu and Sadhvi in their residence for the purpose of offering food to then and hence then is no question of begging for food. The Sadhus and Sadhvis do not go house to house asking for alms but are infact invited by people to go their houses.

17.         In therefore say that the CWC has taken a very myopic view on the subject of baldiksha and hence this applicant ought to be permitted to intervene in the matter so as to place the correct facts and religious tenets before this Hon’ble Court.

18.         I say that the  question raised in the Writ Petition and the question that the Hon’ble Court has indicated that need to be considered deal with certain principles and customs of Jainism which is been in practice for thousands of years and which have over a period of time acquired legal sanctity. I say that it is necessary to have an in depth view of the principles of Jainsim in order to decide the Petition. I therefore state and submit that the Applicant be allowed to intervene in the matter  so that the Applicant may bring to the Notice of  the Court and in depth anaylsis of the principles of Jainism

19.         I, therefore, say and submit that the above Notice of Motion be made absolutely with cost.

Solemnly affirmed at Mumbai       )

This __ day of November, 2008.   )

                                                                        Before me,

IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. _________ OF 2008

IN

WRIT PETITION NO. 3159 OF 2006

ASHOK ALIAS SANTOSH BAGIRCHA 

ALIAS JAIN & ORS.                        .. PETITIONERS

            VERSUS

THE CHILD WELFARE COMMITTEE

& ANR.                                   .. RESPONDENTS

            AND

SHRI JAIN SHASANAM,    .. APPLICANT

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION:

DATED THIS      DAY OF NOVEMBER, 2008.

M/s. Markand Gandhi & Co.

Advocates for Applicant

                                                                        2^nd floor, Bhagyodaya Building,

                                                                        79, Nagindas Master Road,

                                                                        Fort, Mumbai – 400 023.