Second marriage after death of first wife not ground to disqualify father as natural guardian of child: Delhi High Court

The Delhi High Court recently held that second marriage of a man who has lost his first wife, cannot be a ground to disqualify him from being the natural guardian of the child from his first marriage [Mohd. Irshad & Anr. versus Nadeem].The Court made the observation while granting a father limited visitation rights of his child.The father had been arrested in 2010 for the dowry death of his wife - the child’s mother. He was acquitted in the case in 2012 and the appeal against acquittal is pending before the High Court.Meanwhile, the maternal grandparents moved the family court seeking permanent custody of the child and for a declaration that they are the child's guardians.The same was dismissed leading to the present appeal before the High Court..The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Sharma said other than the criminal trial, there was no other disqualification brought on record against the child's father.“The other aspect that has been agitated is that he has since got remarried and has a child from his second marriage, therefore, he cannot be termed as a natural guardian. However, mere second marriage of the father in the circumstances when he has lost his first wife, cannot be held per-se a disqualification from his continuing to be a natural guardian,” it added..The Court further noted that the maternal grandparents have the child’s custody since he was only 1.5 years old and even though the father tried to develop a relationship with the child, it did not yield much result.“The child since infancy has been in custody of the appellants. When we had interaction with the child in the chamber who is now about 15 years of age, he revealed that he felt alienated from the father and was comfortable in the custody of the appellants and was being well looked after by them,” it added..However, the Court said that while there was no doubt the maternal grandparents may have immense love and affection towards the child, it cannot substitute the love and affection of a natural parent.Even the disparity in the financial status cannot be a relevant factor for denying the child’s custody to the natural parent, it added.“However, in the matters of Guardianship and Custody, we are confronted with the dilemma where the logic may say that the child must be in the custody of his father, but the circumstances and the intelligent preference of the child points otherwise. It may not be in the interest and welfare of the child to uproot him from the family where he is happily entrenched since the age of 1 1⁄2 years,” the Court said further..The bench said the family court while denying the claim of the maternal grandparents, “unfortunately” did not consider the aspect of custody. Accordingly, the Court granted the father limited visitation rights for one year and said the same may be reviewed later on father’s application.Advocate Jai Bansal represented the appellantsNadeem appeared as respondent-in-person[Read Judgment]