‘Interest of minor paramount’: Bombay HC grants guardianship of ‘illegitimate’ child to biological parents – The Indian Express

A single-judge bench of Justice Manish Pitale passed an order in a plea filed by the minor’s biological parents who now live together, seeking reliefs including guardianship of the child under the provisions of the Guardians and Wards Act, 1890.

The biological mother of the minor, who was Hindu by birth, converted to Islam to marry the respondent in August 2005. The child was born in August 2011 during the subsistence of their marriage and was deemed to be Muslim and her birth certificate recorded the same.

After the respondent came to know he was not the biological father of the child, he divorced the woman through a written talaqnama in October 2015 and pronounced talaq to the woman in presence of two witnesses upon payment of amounts towards meher and iddat to her. The two were divorced as per the requirements of Muslim law.

In December 2018, the family court held the talaqnama was executed by consent and was a valid divorce and granted custody of the child to the mother. However, the Muslim law applied to the minor child as she was born during the marriage of the petitioner woman and the respondent.

As per the commentaries on Muslim law, ‘illegitimate’ children are considered to have no nasab or without parentage and none of the parents of such a minor child is considered a guardian. It implies that the status of such a child is equivalent to that of an orphan. Under this law, despite having biological parents, such children are referred to as walad-uz-zina or children born out of illicit intercourse and cannot inherit the title, rights or inheritance of the property of either parent.

Advocates Gauraj Shah, Priyanka Sinha, and Simran Grover instructed by A & P Partners, for the petitioners, submitted their clients faced practical difficulties and the situation also “violated minor’s rights and caused prejudice to her despite no fault of hers and due to harshness of the prevailing personal laws.”

The petitioners relied on past Supreme Court and High Court judgements which had held the welfare of the minor is of paramount consideration and the same should be given priority over personal laws. In view of this, the petitioners sought direction from the court under sections 7 and 15 of the 1890 law and declare them as guardians of the minor.

The respondent ex-husband gave consent and provided his no objection through an affidavit filed in the high court Registry.

The bench noted, “Applying principles of Muslim law strictly in the present case would deprive the minor child of her basic rights as she would not have inheritance only because she is a product of a relationship between petitioners during the subsistence of her mother with ex-husband.”

It held petitioners to be biological parents as sufficient material, including DNA report, was available to show the petitioner man is the biological father of the minor. “It would be a travesty of justice if the prayer is not considered, merely because the personal law applicable to the minor child indicates that being an ‘illegitimate child’, she can have no rights towards inheritance or descent,” it added.

The bench also noted that if prayers are not granted in a situation where the respondent has given up claims towards the minor, she would be deprived of the right to be taken care of and maintained by her biological parents, who are more than willing to do so.

Justice Pitale, while declaring the petitioners as legal guardians of the child, held, “Such a situation where the minor child, for no fault of hers, is left high and dry, cannot be countenanced and therefore, this Court is of the opinion that keeping the interest of the minor child as the paramount consideration, the present petition can be favourably considered.