Custody of child would be granted to an unwed mother provided it serves the best interests of the child

CUSTODY OF CHILD OF UNWED MOTHER
Unwed mother is entitled to custody of her daughter, no matter who the father is.
The mother can be expected to take better care of the child.
(Gohar Begum vs Suggi AIR 1960 SC 93, decided by Justices S. Jafer Imam,
A.K.Sarkar and K.N.Wanchoo)

Criminal Procedure, Guardians and Wards Act, Muslim law (uncodified)
FACTS OF THE CASE
Gohar Begum was an unmarried Sunni Muslim woman, and a singer by profession.  In
1951, she met a man called Trivedi and since then, she lived continuously with him
exclusively in various places in Mumbai.  Three children were born out of their relationship

– daughter named Anjum, and sons named Yusuf and Unus.  Suggi - Gohar Begum’s mother’s
sister - who had brought her up, made a trip to Pakistan on a temporary visa and she took
the infant Anjum with her, with the consent of Gohar. Upon their return to India, Suggi
prevented Gohar’s access to the child Anjum. Gohar petitioned the Bombay High Court
against Suggi, stating that she feared her aunt would forcibly take the child Anjum to
Pakistan any day as a valid visa for the child existed.
Suggi denied that Trivedi was the child’s father, and named another man.  She stated that
she had hoped Gohar would mary and “live a clean and respectable life” but other influences
operated on her and she went to live with Trivedi as his mistress.  She stated that she was
treating Anjum as her own child, looking after the child with great care, had admitted her
in a good school, appointed a special maid to take care of the child and that she had
sufficient means to look after the child well.  She stated that it was not in the interests of
the child to live with Gohar as Gohar was living with a man who might turn her out and
she would then have to seek the protection of another man.   Trivedi made an affidavit
acknowledging the paternity of the child and undertaking to bring her up properly as his
own child.  He was a man of sufficient means and Gohar had been living with him for a
considerable period of time.
The High Court was of the opinion that the child was not illegally and improperly detained
by Suggi and others, and dismissed Gohar’s petition.  In fact, the parties arrived at a
settlement during the High Court proceedings, saying that Gohar would have custody and
Suggi would have access to the child.  However, the High Court was not willing to make
an order in terms of the settlement because it considered that such a settlement would not
be in the best interests of the child. Gohar appealed to the Supreme Court.Judgments on Muslim Law & Women’s Rights 17
ISSUES FOR DETERMINATION
§ Was the child illegally detained?
§ Who was entitled to custody of the child?
JUDGMENT
The court granted custody of the child to Gohar.  It said that Gohar was entitled to the
custody of the Anjum, no matter who her father was.  Suggi has no legal right whatsoever
to the custody of the child.  Her refusal to hand over the child to Gohar therefore resulted
in an illegal detention of the child.  The High Court was wrong in their view that the child
was not illegally or improperly detained.  The court reiterated that before making the
order, the court was called upon to consider the welfare of the infant concerned, and that
there was no reason to think that the child’s interests would be better served by keeping
her custody with the aunt.  It observed that the High Court had given no reasons as to why
it thought that the best interests of the child would not be served by giving the custody to
Gohar, when both Gohar and Suggi were singing women and the atmosphere at both their
homes was the same. “…as the mother can be expected to take better care of the child”
While awarding custody of the child to Gohar, the court also took into consideration the
fact that Trivedi had acknowledged paternity of the child and so, in law, the child could
claim maintenance from him while the child would have no such right against Suggi.
IMPLICATIONS OF THE JUDGMENT
Custody of child would be granted to an unwed mother provided it serves the best interests
of the child.