Under Hindu Minority & Guardianship Act, Mother Is The Natural Guardian Of An Illegitimate Child, Father’s Claim Comes After: Bombay HC [Read Order]

The Bombay High Court on Tuesday held that in case of an illegitimate child, mother is the natural guardian and father’s claim comes after her as per Section 6 of the Hindu Minority and Guardianship Act.

Justice SC Gupte was hearing an interim application in a writ petition filed by 26-year-old man who challenged the order of a Family Court in Pune wherein his application for custody of his 7-year-old son was rejected. Court cleared the way for Child (X) and his mother to travel to their home country of New Zealand.

According to the petitioner father, he met the respondent mother sometime in or about 2008 and had been in a romantic relationship with her from 2011 onwards and until June 2012. Child (X) was born to the respondent on December 11, 2012. Ever since his birth, the child has stayed with the respondent in a flat which is jointly owned by the parties.

The petitioner claimed to be living separately with his parents and son from his first marriage at another place in Pune. However, he also claimed to have visited X three to four times a week and sometimes overnight whilst the child continued to reside with the respondent. But since June 2018, the respondent has cut-off the petitioner’s access to X, the petition contended.

He also alleged that the respondent is of a quarrelsome and violent nature. She changed the schools attended by X on a couple of occasions, on one particular occasion after levying sexual harassment allegations against a member of the school staff and filing a complaint with the police in that behalf, and also by reason of the fact that there have been complaints as between the respondent and some of her neighbours, which have resulted into FIRs, she is mentally and emotionally unfit to have the custody of Xj.

On the other hand, the respondent mother opposed the petitioner’s application and submitted that firstly, the petitioner has till date not accepted the marriage between the parties, which is claimed to have taken place at Mulshi in Pune on November 28, 2009 as per Hindu rites and rituals.

Moreover, the petitioner abandoned the respondent during the pregnancy itself. It was submitted that before abandoning her, he even put immense pressure on her to undergo an abortion, with physical assaults and violent intercourse so that she would suffer a miscarriage. However, the foetus survived and X was born.

Renuka also contended that for the last seven years, since his birth, she has brought up the child. That the petitioner does not have any affection or association with the child.

Furthermore, she submitted before the Court that the respondent has made arrangements for admitting the child to a reputed school in New Zealand and is now awaiting permission from FRRO for an exit visa.

The Family Court observed that since the birth of the child, it was the respondent mother who alone had taken care of the child. It was particularly noted that the petitioner’s own complaint to the Police Commissioner, Pune City on May 21, 2016 disclosed that since 2012, the petitioner was not staying with the respondent and had not kept any relations with her.

So far as the petitioner’s allegations concerning mental disorder and incapacity of the respondent to take care of her son are concerned, the court noted that at the interim stage, without any concrete evidence, this submission of the petitioner could not be accepted. The court noted that it was in the interest of the child and commensurate with its welfare that its custody continued with the respondent exclusively.

Family Court held the prima facie case to be clearly in favour of the respondent. Even from the point of view of balance of convenience, the court held that the petitioner had no case to seek any interim injunction.

After examining contentions of both parties and the family court order, Justice Gupte observed-

“At the very outset, it must be noted that the Petitioner himself has come before the court with a case that the minor child was born not out of a wedlock but out of a romantic relationship between the Petitioner and the Respondent. In other words, it is the Petitioner’s own case that the child is an illegitimate child.

If that is so, it is difficult to see how the Petitioner, who claims to be its putative biological father, can claim the custody of the child over the Respondent, who is admittedly its biological mother. Under Section 6 of the Hindu Minority and Guardianship Act, by which both parties are admittedly governed, in the case of an illegitimate boy or an illegitimate unmarried girl, it is the mother who is the natural guardian, and the father’s claim of such guardianship comes only after hers.”

The bench clarified that there are two exceptions to the said rule. The first is that no natural guardianship can be claimed under Section 6 if the person claiming guardianship has ceased to be a Hindu.

The second exception is where such a person has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

It is not the Petitioner’s case that the Respondent either has ceased to be a Hindu or has renounced the world either by becoming a hermit or an ascetic. The Respondent, thus, has an indefeasible claim to natural guardianship of her child Omiraj. There is no case in law for the Petitioner to claim guardianship or custody of the child over her, Court said.

Moreover, Court rejected the claim made by the petitioner that the respondent was of unsound mind –

“The material adverted above does not even prima facie imply the Respondent’s “unsoundness of mind” or “her incapacity to look after her own child”. There is no medical opinion or other authoritative material produced by the Petitioner in support of his case of mental unsoundness or incapacity of the Respondent.”

Finally, while dismissing the petition, Court noted that the impugned order has fairly and adequately addressed prima facie merits of the case as also the question of balance of convenience.

Advocate Aditya Pratap appeared on behalf of the petitioner and Advocate Abhishek Pungliya for the respondent.

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