‘Woman has indefeasible claim to natural guardianship of child’

HC dismisses man’s petition, says material did not even prima facie imply “her incapacity to look after her own child”

Published - June 12, 2020 01:01 am IST - Mumbai

The Bombay High Court on Tuesday upheld an order passed by a family court granting a minor child’s custody to his mother and said, “woman has an indefeasible claim to natural guardianship of her child”.

A single Bench of Justice S.C. Gupte was hearing a petition filed by a man challenging an order passed by the family court, Pune, on an interim application made by him. The application had sought an interim custody of their minor son and also an interim injunction on the woman from taking the boy out of India. Since the application was rejected, he moved the HC.

The couple had met in 2008 and were in a romantic relationship over 2011 and 2012, and their son was born in December 2012. The woman was staying with their son in a flat jointly owned by the couple, while the man was staying with his parents and his son from his marriage in Pune.

The man would visit his minor son three to four times a week when he used to be with the woman. However, since June 2018, the woman denied the man access to the child.

The man contended that the woman was mentally unfit to take care of their son, and she had applied to the Foreigner Regional Registration Office for an exit visa for their son in order to go to New Zealand as the mother-son duo were citizens of that country.

The woman said that the man had not accepted their marriage and that he abandoned her when she was pregnant. She also said that the man had never looked after the child and that she had single-handedly brought him up. The woman said the child had autism spectrum disorder and she had admitted him to a reputed school in New Zealand. She further said that New Zealand was free of COVID-19 and that moving there was in the best interest of the child.

The High Court said at the very outset, it must be noted that the man himself had come before the court with a case that the minor child was born not out of a wedlock but out of a romantic relationship. In other words, it was his own case that the son was an illegitimate child.

If that is so, the court said, it was difficult to see how the man, who claimed to be his putative biological father, could claim the custody of the child over his biological mother.

The Bench said, “The woman has an indefeasible claim to natural guardianship of her child. There is no case in law for the man to claim guardianship or custody of the child over her.”

Rejecting the man’s claim that the woman is of unsound mind, Justice Gupte said the material did not even prima facie imply the woman’s “unsoundness of mind” or “her incapacity to look after her own child”.

While dismissing the petition, the HC noted that the family court order had fairly and adequately addressed prima facie merits of the case as also the question of balance of convenience.

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