Mumbai: In case of an illegitimate child, a mother is the only natural guardian and enjoys an indefeasible right in this regard, ruled the Bombay High Court on Friday. The HC further said that a mere mental or emotional instability cannot be a ground to deny custody or guardianship to a parent.
The HC has also allowed the mother to travel with her son to New Zealand, on two counts - first that she is a citizen of that county and secondly because it has virtually become free of coronavirus.
A bench of Justice Suresh Gupte pronounced the significant ruling while dealing with a plea filed by a Pune-based man, who sought the custody of his six-year-old autistic son.
According to the man, who was a divorcee, he had a love affair with his colleague and out of their romantic relationship, his partner conceived and delivered their son. As the child was an illegitimate one, the father refused to look after him and even turned down his partner's proposal for marriage.
"It is the father's own case that the child is an illegitimate child. If that is so, it is difficult to see how he, who claims to be its putative biological father, can claim the custody of the child over the mother, who is admittedly its biological mother. As per the Hindu laws, in the case of an illegitimate child, it is the mother who is the natural guardian, and the father's claim of such guardianship comes only after hers," Justice Gupte ruled.
"The mother, thus, has an indefeasible claim to natural guardianship of her child. There is no case in law for the father to claim guardianship or custody of the child over her," Justice Gupte added.
The bench further noted the argument of the father that his partner, who was looking after their son ever since his birth, was mentally unsound and would pick up quarrels with anyone. He even cited a few instances, wherein the mother was named in FIRs by the neighbours for intimidating them.
"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," Justice Gupte ruled.
The judge further noted, "In the instant case, the father denies any matrimonial relationship as between himself and child's mother, and thereby, legitimacy to the minor. The child, who is a special child, ever since its birth, has been taken care of and looked after by his mother, who anyway has an indefeasible legal right to its natural guardianship over the father."
source https://www.freepressjournal.in/mumbai/mother-is-the-only-natural-guardian-for-an-illegitimate-child-rules-hc
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