Law Web: Whether father can claim custody of illegitimate child?

At the very outset, it must be noted that the Petitioner himself

has come before the court with a case that the minor child was born not

out of a wedlock but out of a romantic relationship between the Petitioner

and the Respondent. In other words, it is the Petitioner's own case that the

child is an illegitimate child. If that is so, it is difficult to see how the

Petitioner, who claims to be its putative biological father, can claim the

custody of the child over the Respondent, who is admittedly its biological

mother. Under Section 6 of the Hindu Minority and Guardianship Act, by

which both parties are admittedly governed, in the case of an illegitimate

boy or an illegitimate unmarried girl, it is the mother who is the natural

guardian, and the father's claim of such guardianship comes only after

hers. There are only two exceptions to this rule. The first is that no natural

guardianship can be claimed under Section 6 if the person claiming

guardianship has ceased to be a Hindu. The second exception is where

such person has completely and finally renounced the world becoming a

hermit (vanaprastha) or an ascetic (yati or sanyasi). It is not the

Petitioner's case that the Respondent either has ceased to be a Hindu or

has renounced the world either by becoming a hermit or an ascetic. The

Respondent, thus, has an indefeasible claim to natural guardianship of her

child Omiraj. There is no case in law for the Petitioner to claim

guardianship or custody of the child over her.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 1 OF 2020

WRIT PETITION NO. 2928 OF 2019

Dharmesh Vasantrai Shah Vs. Renuka Prakash Tiwari

CORAM : S.C. GUPTE, J.

DATE : 9 JUNE 2020

Heard learned Counsel for the parties.

2 This writ petition challenges an order passed by the Family

Court at Pune on an interim application made by the Petitioner herein

(original Petitioner before the Family Court in a custody petition). The

interim application had sought interim custody of Master Omiraj Shah,

who is the minor son of the parties. It had also sought an interim

injunction restraining the Respondent from taking the minor out of India,

besides other related or consequential reliefs. By the impugned order, the

Family Court rejected the interim application.

3 The short facts of the case, borne out by the narration in the

petition, may be stated as follows :-

According to the Petitioner, Master Omiraj Dharmesh Shah, who is

six years old as of the date of the petition (currently seven years) was born

to the parties out of a romantic relationship. The Petitioner claims to have

met the Respondent sometime in or about 2008 and been in a romantic

relationship with her from 2011 onwards and until June 2012. Master

Omiraj was born to the Respondent on 11 December 2012. It is not in

dispute that ever since his birth, the child has stayed with the Respondent,

though in a flat which is jointly owned by the parties. The Petitioner claims

to be living separately with his parents and son from his first marriage at

another place in Pune. He, however, claims to have visited Master Omiraj

three to four times a week and sometimes overnight whilst the child

continued to reside with the Respondent. It is his case that from about

June 2018, the Respondent has cut-off the Petitioner’s access to Master

Omiraj. It is the Petitioner’s case that the Respondent is of a quarrelsome

and violent nature; going by the fact that she has changed the schools

attended by Master Omiraj on a couple of occasions, on one particular

occasion after levying sexual harassment allegations against a member of

the school staff and filing a complaint with the police in that behalf, and

also by reason of the fact that there have been complaints as between the

Respondent and some of her neighbours, which have resulted into FIRs,

she is mentally and emotionally unfit to have the custody of Master

Omiraj. It is submitted that the Respondent has made conscious efforts to

minimise the social interaction of Master Omiraj with others. It is the

Petitioner’s case that the Respondent has applied to FRRO for an exist visa

for Master Omiraj in order to go to New Zealand. On these facts, the

Petitioner has claimed permanent custody of the minor son as final relief

in the pending petition. His interim application, as noted above, has been

for interim custody and a temporary injunction against the Respondent for

taking the child out of India.

4 The application has been opposed by the Respondent on

several grounds. It is submitted, firstly, that the Petitioner has not till date

accepted the marriage between the parties, which is claimed to have taken

place at Mulshi in Pune on 28 November 2009 as per Hindu rites and

rituals. It is submitted that the Petitioner abandoned the Respondent

during the pregnancy itself. It is submitted that before abandoning her, the

Petitioner even put immense pressure on her to undergo an abortion, with

physical assaults and violent intercourse so that she would suffer a

miscarriage. It is submitted that the fetus, however, survived the

misfortune and Master Omiraj was born on 11 December 2012. It is

submitted that since his birth and till date, i.e. for the last seven years, it is

the Respondent alone who has brought up the child. It is denied that the

Petitioner has any affection or association with the child. The Respondent

submits that her minor son has been suffering from autism spectrum

disorder and has always been in her exclusive care and maintenance. It is

submitted that the Respondent and her minor son are both citizens of New

Zealand. It is submitted that the Respondent has made arrangements for

admitting the child to a reputed school in New Zealand and is now

awaiting permission from FRRO for an exit visa. It is submitted that

considering the fact that there is currently a raging Covid-19 pandemic in

India, the area of Pune having been particularly identified as a red zone for

the pandemic, and, on the other hand, New Zealand being a country

virtually free of the pandemic as of date, it is imperative and in the interest

of the child to allow the Respondent to take him to New Zealand so that he

could be admitted to a good school there and properly nurtured.

5 In its impugned order, the Family Court inter alia observed

that since the birth of the child, it was the Respondent mother who alone

had taken care of the child. It was particularly noted that the Petitioner’s

own complaint to the Police Commissioner, Pune City (made on 21 May

2016) disclosed that since 2012, the Petitioner was not staying with the

Respondent and had not kept any relations with her. The court noted that

this itself indicated that ever since the birth of the child, it was the

Respondent mother who had single handedly made efforts for the child’s

upbringing. So far as the Petitioner’s allegations concerning mental

disorder and incapacity of the Respondent to take care of her son are

concerned, the court noted that at the interim stage, without any concrete

evidence, the submission of the Petitioner could not be accepted. The court

noted that it was in the interest of the child and commensurate with its

welfare that its custody continued with the Respondent exclusively. The

court noted that the Respondent mother was the child’s primary caretaker;

she had taken care of his schooling; since birth the child, who was

suffering from autism, was staying with the Respondent mother; and now

suddenly his custody could not be shifted to the Petitioner. The court

noted that the Respondent and her son Omiraj were both citizens of New

Zealand and had every right to visit New Zealand; the Respondent had

even started the process of securing admission for her son Omiraj to a

school there; the son was a special child and needed special care and

attention; and that at this stage, it was the Respondent mother alone, who

was able to take his care. The court held the prima facie case to be clearly

in favour of the Respondent. Even from the point of view of balance of

convenience, the court held that the Petitioner had no case to seek any

interim injunction. The court, in the premises, did not find any substance

in the interim application and dismissed the same.

6 At the very outset, it must be noted that the Petitioner himself