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

TRILOKCHAND P. OSWAL                                   .. APPLICANT

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION:

I, TRILOKCHAND P. OSWAL,  of Mumbai Indian Inhabitant residing at 103 Falcons Crest, G. D. Amedkar Marg, Parel, Mumbai 400 012, the applicant abovenamed, do hereby solemnly affirm and state as under:-

1.             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.

2.            I further respectfully submit that the Applicants may be permitted to intervene in the above Petition, since the issue raised in the above Petition and outcome thereof shall have serious concern and affects the basic and well established principles of Jainism followed and practiced  since thousands of  years which will be demonstrated and pointed out at the time of hearing of the above Petition. The basic and well established principle of Jainism are based on ancient scripts (Shastras) written, constituted and enacted by the Jain Saints and strict followers having initially 3 Gyanas and thereafter the 4^th Gyana.  The Principles and tenets of Jainism written, constituted and enumerated/enacted by the ancient Saints and followers are based on the Pravachans, Desanas (Religious Lectures) given by Arihants i.e. highest religious head of the Jainism having not only 4 but the 5^th i.e. Kevale Gyana, by which the Arihants precieve know and predict the actual acts and the existence of the past, present and future of all the Draivyas and Pudugals (live jiva) and/or rigid (ajiva)) by the internal fillings (i.e. by intelligent (Man), by word (vachana) and by action (by Kaya). Such basic and well established principles of Jainisms which have been followed for thousand of years  cannot be challenged or disputed in the Courts by any common person having no knowledge at all of Jainism or by a person even having remote or hardly any knowledge of Jainism.

3.            I further respectfully submit that, so far, the issues raised/involved in the Petitions were earlier challenged or raised directly and/or indirectly before various forums including Rulers in India, and Court of Laws, however, the same have been all through out held, settled and decided in favour of Child Diksha after having positively construed, interrupted, understood, indebt the basic principles of Jainism laid down in the ancient Shastras and meaning and interpretation of Slokas thereof and implementation in reality.

4.            I further say and respectfully submit that the purported challenge or dispute and the issues raised in the above Petitions against the Child Diksha, are  not only illogical, unbelievable, hypothecated but in teeth of the basic principle of Jainism laid down under the ancient scripts (Shastras).

5.            I say that the custom of child diksha  is a custom that has been followed over thousand of years and has attend legal sanctity. In fact the said custom has being challenged from time to time on earlier occasion which challenges have failed. I say that the custom of child diksha is an intergral part not only of Jainsim but is a custom followed in by any other religion including Christianity.

6.            I further say that it may not be out of place to note here that freedom of following one’s religion is a right given to every person in this country by the constitution.  I say  and submit that Child Welfare Committee has no Jurisdiction  or authority to interfere with the religious customs in practice of Jain or any sect. and the same would amount to infringement of the fundamental rights of Jain.

7.            The disputes raised and challenge made against the Child Diksha are based on absolute biased  alleged findings of the CWC which has no jurisdiction, power or authority to interfere in the religious feeling and matters of Jainism by its followers that too and particularly in democratic Country where the Constitution has in terms permitted following of religious principles by every community in India.

8.            Without Prejudice to the aforesaid and what is stated in this affidavit and without admitting the powers, authorities and jurisdiction, I say and further respectfully submit that the disputes raised, challenge made and the direction/findings given by CWC are not at all based on well established principles of law and equity of justice nor based on principles of Jainism.  None of the members of CWC is/are follower of Jainism nor could he or they have understood the basic principles of Jainism as laid down, enacted and constituted under the old scriptures/Shastras. 

9.            I say and further respectfully submit that the Child Diksha is followed and practiced by  Jain followers is  based on the religious scriptures/Shastras and in past such a BalDikshas have been given to the deserving person/child (male and/or female) not only to  persons born in Jain family but also a person born in non-Jain families. There are various examples and instances.

10.         I say and further respectfully submit that such a Child Diksha is not only permitted, followed and given in Jains but also in various other non –Jainism and other Hindu religions.

11.         I say and further respectfully submit that the procedure  followed, and the principles laid down for giving such Dikshas and Diksha to adult are not absolutely similar in all aspects and proper care and caution is always  been taken in giving such Child Diksha to deserving male/female child till such Child attains majority and becomes adult. I say that before any person is given  Diksha,   a person  has to undergo an experimental/test period during which period the person is given a chance to live the life of a Sadhu or Sadhvi. It is during this period that it is checked whether such persons has leaning towards the path of Sanyas or whether the person is attracted to worldly affairs. Under the circumstances it cannot be said that people are not given a fair opportunity  of understanding the consequences  of taking Diksha.  In case of children in fact even more care and precaution is taken.

12.         I further respectfully say and submit that  infact the legislature of country has also followed the principle that a child is matured enough to take decision revolving around his or her life after the age of 7 years. It is pertaining to note that under the laws of country when parents are divorced, the custody of child is given to mother till the child is of 7 years of age thereafter the desire and the say of child is taken into consideration with regards to the decision as to whether mother of father should get custody of child. It is obvious that the concept of child diksha is based on the same premise.

13.         I say and further respectfully submit that having desire and intention to take Diksha by Child is based on not only on present Karmas but the past good Karmas which have ripen in the existing birth (bhav).  Based on such Karmas theory, it can not be said that Child Diksha is against the welfare of the Child and/or in the teeth of any provisions of any of Article of Constitution of India and/or any of the statutes.  Prohibiting such Child Diksha not only in Jainism but all other religious will be absolutely in the teeth of basic principles of Karma theory followed not only by Hindus but Non-Hindu also.  The principles of Karmas are well settled, established, constituted, enacted and laid down in various ancient Shastras not only in Jainism but in Hindu and other religion.

14.         I say and further respectfully submit that the various concerned forums including Rulers in India prior to Independence and thereafter by Court of Laws have accepted, confirmed and also respected the following of the principles of Jainisms in various matters including in Ahimsa, Tapas, Donations, etc. and I shall demonstrate and point out the same at the time of hearing of the Petition.

15.         I say and further respectfully submit that any interference by  on the issues/disputes/objections of Child Diksha the above Petition will, with respect, amounts to interference in the freedom to practice personal religion which has been well recognized under the Constitution of India. 

16.         I state and submit that it is necessary to have a detailed analysis of the principles of custom of Jainism which have been followed from time immemorial in the present matter. I therefore state and submit that the Applicant be allowed to intervene in the matter to bring on record various principles of Jainism.

17.         I therefore pray that the  applicant be allowed to intervene the above  Petition.

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.

Shri Maulik P. Vora,

Advocates for the Applicant

13, Ground Floor, Hamam House,

Hamam Street, Fort,

Mumbai - 400 023.                 

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