Woman has indefeasible claim to guardianship of children born out of live-in relationship: Bombay HC – mumbai news

The Bombay High Court has observed that a woman in a live-in relationship has an indefeasible claim of natural guardianship for children born out of a live-in relationship.

The court made the observation on Tuesday while rejecting the plea of a Pune resident seeking custody of his minor son born out of relationship with a woman from New Zealand.

An indefeasible claim is one that isn’t capable of being annulled or undone.

The 26-year-old divorcee, who has a son from his ex-wife, said he met the New Zealand citizen in 2008. Three years later, the acquaintance developed into a relationship and they were together till June 2012. A boy was born to the New Zealand woman about six months after they broke up.

The man had approached a family court in Pune for temporary custody of the minor, after he learnt his partner had decided to shift to New Zealand with the child. Claiming the woman was incapable of being a guardian on grounds of mental instability, he had sought an order restraining her from taking the boy out of India.

He then approached the high court after the family court rejected his plea. The high court too dismissed his claim.

Justice SC Gupte said the man had claimed the boy wasn’t born out of wedlock but 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,” the judge said.

Gupte said under section 6 of the Hindu Minority and Guardianship Act, the mother is the natural guardian of an illegitimate boy or an illegitimate unmarried girl, and the 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. Thus, it added, the woman had an indefeasible claim to natural guardianship of her child.

“There is no case in law for the petitioner to claim guardianship or custody of the child over her,” it said.

The court rejected the man’s claim that the woman was mentally and emotionally unstable, and wasn’t entitled to custody of the seven-year-old boy because she was of a quarrelsome nature and tried to minimise the child’s social interaction.

In this regard, the high court said, it wasn’t even a formally stated case of unsoundness of mind. “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.

It noted the material produced by the man 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.

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