The Bombay HC Judge, Hon’ble Justice HC Gupte has held that mother is the first guardian of the child born out of a living-in-relationship.
Factual Background
A 26- year old divorcee from Pune met a woman in New Zealand and entererd into a live-in-relationship. A child was born 6 months after the couple parted ways. When the women decided to shift from New Zealand with the Child, the man knocked on the doors of the Family Court for temporary Custody of the child. The Petitioner, husband filed a writ petition challenging the order of the Family Court at Pune. It was argued by the Petitioner that the Respondent denied the access to the child and the Petitioner was of the view that the Respondent is unfit to take care of the child.
Petitioner Contentions
It was claimed by the Petitioner that since the Respondent is mentally ill, Custody of the child shall be with the Petitioner as “welfare of the child is paramount consideration”.
The strained relations between Respondent and his neighbors revealed the unstable nature of the Respondent which is a cause of concern for the welfare of the child. Also, the respondent changed the schools of the child in the account of accusations of sexual harassment against a member of the school staff signifies her state of mind. The petitioner prays for the permanent custody of the child to the Court.
Respondent Contentions
The respondent is of the view that since the petitioner does not accept their marriage and had harassed her earlier for aborting the child by physical abuse, he is unfit for custody. The child is suffering from Autism Spectrum Disorder (ASD) and needs constant care and attention which the petitioner will not be able to fulfill as he has not been with the child from birth.
As the child has been living with the respondent for seven years, it will be against the interest and welfare of the child to deprive him of his natural settings. The Mother has been catering to all the needs of the special child and so she shall get the custody.
Court finding and decision
Keeping in view the interest and welfare of the child, it has been noted that the child has been the sole responsibility of the respondent right from birth.
Prima Facie the respondent has taken care of the child at every moment and has fulfilled all her duties, while the petitioner has been failed in this regard. Under Section 6 of the Hindu Minority and Guardianship Act, Mother is the natural guardian of an illegitimate boy or an illegitimate unmarried girl.
The claims by the petitioner of mental illness and emotional stability are not the grounds to deny custody to the natural guardian. The Court has however suggested the respondent for an evaluation of mental stability. Dr. Yamina Abde, a Counsellor observed that she is over possessive for her child due to which she has not even revealed the exact address to the driver of the school bus signifying her concern towards the child.
While filing police complaints she used to change her address citing different reasons. In view of the sexual harassment allegations, the Medical Report is against it. The findings of the two NGO reveals that the FIR’s between the respondent and some of her, Neighbours does not show ant mental illness on the part of the respondent. Moreover, the petitioner’s claim of ‘unsoundness of mind’ is not based on any Medical Report.
Since the petitioner had no access to the child from the last two years, the respondent has been looking after the child and knows his needs, interests which are unknown to the petitioner and so the custody will remain with the mother. The Court upheld the decision of the Family Court in denying the interim custody to the petitioner which is based on circumstances and facts and so the Writ Petition is dismissed. The temporary status quo order is quashed by the court.
The Copy of the Judgment has been removed at the request of the Respondent in the case.
