Bombay High Court grants guardianship of illegitimate minor to biological parents

The Bombay High Court recently granted guardianship of a minor to her biological parents after she was deemed to be an illegitimate child as a result of being born out of marriage [Sudeep Suhas Kulkarni and Anr. vs Abbas Bahadur Dhanani]..Justice Manish Pitale said that a situation where a minor child, for no fault of hers is left high and dry cannot be accepted and therefore, keeping the interest of the minor child as the paramount consideration, the Court can favourably consider the plea."Such a situation where the minor child, for no fault of hers, is left high and dry, cannot be countenanced and therefore, this Court is of the opinion that keeping the interest of the minor child as the paramount consideration, the present petition can be favourably considered," the Court said..The petition was filed by biological parents of the minor child. The mother of the minor was a Hindu by birth. in 2005, she converted to Islam and married the respondent. During their marriage, the minor was born and was deemed to be their child.Accordingly, the child was deemed to be a Muslim and the same was recorded in her birth certificate.Later it came to light that the respondent was not the biological father of the child and the respondent and the minor's mother separated. In 2005, they got divorced. The custody of the child was granted to the mother and the respondent expressed no interest in the custody, care or guardianship of the minor.However, since the child was born during the marriage of the petitioner and the respondent, Shia laws applied to her.In accordance with Shia Law, illegitimate children are considered to have no ‘nasab’ (descent) and neither parent of such minor is considered as a guardian. The same implies that the status of such an illegitimate child is equivalent to that of an orphan.Resultantly, despite having both biological parents, such illegitimate children are not granted status, title, rights or inheritance of property of either parent.The advocates for the petitioners submitted that this in itself was violative of the rights of the minor and caused prejudice to her despite no fault of hers due to the harshness of the prevailing personal laws.Further, they relied on judgements of the Supreme Court and various high courts wherein the courts had taken the view that in all cases, the welfare of the minor is of paramount consideration and the same would take precedence over personal laws.Therefore, they prayed that the Court exercise its powers under Section 7 and Section 15 under the Guardians and Wards Act and declare the petitioners as the guardians of the minor. The respondent consented to the same and provided his no objection affidavit which was filed with the registry..The Court noted that in Athar Hussain vs. Syed Siraj Ahmed and Ors. the Supreme Court held that if there is a conflict between the provisions of personal law and the provisions of the Guardians and Wards Act, 1890, by keeping the interest of the minor child as the paramount consideration, the Court can proceed on the basis that the provisions of the Guardians and Wards Act, 1890 would prevail over the personal law.Further, it noted that applying the principles of the Mahommedan Law strictly to the facts of the case would deprive the minor child of inheritance and basic rights, only because she is the product of a relationship between petitioner No.1 and petitioner No.2, during the subsistence of the marriage between petitioner No.2 and the respondent.Therefore, it stated that it would be a travesty of justice if the prayers made in the petition are not considered."This Court is of the opinion that since the petitioners in the present case are the biological parents and there is sufficient material placed on record to show that petitioner No.1 is the biological father of the minor child, it would be a travesty of justice if the prayers made in the present petition are not considered, merely because the personal law applicable to the minor child indicates that being an ‘illegitimate child’," the Court said..Hence, the Court granted the guardianship of the minor to her biological parents.The petitioners were represented by counsel Gauraj Shah and advocates Priyanka Sinha and Simran Grover of A&P Partners..[Read Order]