The Bombay High Court observed that a woman living as a couple has an unassailable demand for natural guardianship for children born to a living couple.
The court made the observation on Tuesday while dismissing a plea from a Pune resident seeking custody of his minor son born out of a relationship with a New Zealand woman.
An irrevocable claim is a claim that cannot be overturned or defeated.
The 26-year-old divorcee, who has a son by his ex-wife, said he met the New Zealand citizen in 2008. Three years later the acquaintance became a relationship and they were together until June 2012. A boy was born. to New Zealand women about six months after their breakup.
The man had applied to a family court in Pune for temporary custody of the minor, after learning that his partner had decided to move to New Zealand with the child. Claiming that the woman was unable to be a guardian due to mental instability, he sought an order preventing him from taking the boy out of India.
He then went to the High Court after the family court dismissed his plea. The High Court also rejected his request.
Judge SC Gupte said the man claimed the boy was not born out of wedlock but into a romantic relationship. “In other words, it is his own case that the child is an illegitimate child, and if so, it is difficult to see how he, as a putative biological father, can claim custody of the child. ‘child on the woman, who admittedly is his biological mother, “said the judge.
Gupte stated that under Article 6 of the Hindu Minority and Guardianship Act, the mother is the natural guardian of an illegitimate boy or illegitimate unmarried girl, and the father’s request for guardianship is not comes only after his.
There are only two exceptions to this rule: either the woman ceases to be a Hindu or she renounces the material world altogether and becomes a hermit or ascetic, the High Court said. Thus, he added, the woman had an unassailable right to the natural guardianship of her child.
“There is no case in law for the applicant to claim guardianship or custody of the child over her,” he said.
The court rejected the man’s claim that the woman was mentally and emotionally unstable and not entitled to custody of the seven-year-old boy because she was quarrelsome in nature and tried to minimize the social interactions of the child.
In this regard, the High Court said, this was not even an officially declared insanity case. “Any mental or emotional instability, in itself, is not a ground for denying custody to a natural guardian, except to the extent that it relates to the physical or mental security and well-being of the child”, the court declared while rejecting the man’s claim.
He noted that the material produced by the man did not suggest any mental illness or even a case of mental or emotional instability and the woman’s inability to care for her child.