A Mother Is An Illegitimate Child's Natural Guardian: Bombay High Court

The Bombay High Court recently ruled that a woman has an indefeasible claim of the natural guardianship on a child born out of a live-in-relationship. This judgment came after a Pune man knocked the doors of the court for claiming custody of his minor son born out of a relationship with a woman from New Zealand. The High Court has, however, rejected his plea. The man had approached the Bombay High Court after his plea was rejected by a family court.

“In other words, it is his own case that the child is an illegitimate child, and if that is so, it is difficult to see how he, as a putative biological father, can claim custody of the child over the woman, who admittedly is it’s biological mother,”- Justice SC Gupte

Case History

The Pune based man is a 26-year-old divorcee. He met the woman, who is from New Zealand, in 2008 and they entered into a relationship that lasted till June 2012. However, six months after they broke up, a boy was born to the woman. Recently, the woman decided to shift to New Zealand with the child. When the man came to know about this, he approached the family court for temporary custody of the minor. He claimed that the woman is unstable unfit and hence, in all ways, she should be refrained from taking the child out of the country.

The man would visit his minor son three to four times a week when he was in a relationship with the woman, The Hindu reported. However, after June 2018, the woman denied the man access to their child. The woman said that the man abandoned them when she needed him the most, and that she brought up her son single-handedly. The child reportedly has autism spectrum disorder and she said that she has admitted him to a reputed school in New Zealand. And since New Zealand is now COVID-19 free, the woman said that taking her child there is in best of his interest.

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When the family court rejected his plea, the man approached the Bombay High Court, which too rejected his plea. “Any mental or emotional instability, by itself, is no ground to deny custody to a natural guardian, except insofar as it bears on the physical or mental security and welfare of the child,” the court said while rejecting the man’s claim, Hindustan Times reported.

The court also noted that whatever material the man provided to prove that the woman is unstable "didn’t suggest any unsoundness of mind or even a case of mental or emotional instability and incapacity of the woman to look after her child."

The judge put forth that under section 6 of the Hindu Minority and Guardianship Act, the guardianship claim of the mother is supreme.

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For An Illegitimate Child, Biological Father's Claim Of Guardianship Comes Only After Biological Mother's Claim Of Guardianship

The man had stated that the child was born out of a romantic relationship.  “In other words, it is his own case that the child is an illegitimate child, and if that is so, it is difficult to see how he, as a putative biological father, can claim custody of the child over the woman, who admittedly is it’s biological mother,” Justice SC Gupte said.

The judge put forth that under section 6 of the Hindu Minority and Guardianship Act, the guardianship claim of the mother is supreme and a father's claim of guardianship comes only after hers. There are only two exceptions to this rule – either the woman ceases to be a Hindu or completely renounces the material world and becomes a hermit or an ascetic, the high court said. Except for these two cases, the woman has an indefeasible claim on a child born out of a live-in relationship.

Image Credit: india.com

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