Mother shall be natural guardian of an illegitimate child - Synopsis
Parul Madaan 15 Jun 2020

The Bombay High Court in the case Dharmesh Vasantrai Shah v. Renuka Prakesh Tiwari WP No. 2928 of 2019, in rejecting the plea of the husband, held that the mother was the first guardian of an illegitimate child born out of a living-in-relationship.

A 26-year-old man who resides in Pune met a woman in New Zealand and entered into a relationship. A boy was born six months after the couple broke and segregated. Then the women decided to move New Zealand with the Child and, as a result, the man was compelled to reach the Family Court in order to obtain temporary custody of the child. In the present case, the petitioner submitted a writ petition in order to challenge the order of the Family Court. The respondent, on the other hand, denied the petitioner rights to the child, whereas the petitioner deems that the respondent is not fit to take care of the child.

The Petitioner claims that the child's custody should be with the petitioner since the child's welfare should be regarded absolutely essential and the respondent is not fit to care for the child as she is mentally ill. The very tense relationship between the respondent and her neighbors is clear in the fact that the respondent is dysfunctional in nature and, thus, this is the greatest concern for the child's welfare. Also, the respondent had changed the child's schools since the allegation of sexual harassment against the member of the school staff reflects her state of mind. Hence the petitioner prayed for the child's permanent custody.

The Court observed that the petitioner was unable to establish sufficiently the mental instability of the respondent, since the material submitted by the petitioner did not establish, prima facie, that the respondent was unsound. While deciding the matter of instant custody, S.C. Gupte, J., held that, in accordance with the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, it is a mother who is the natural guardian of an illegitimate child  and the claim of a father only comes second to that of a mother.


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