Bombay HC refuses 6-year-old’s custody to his ‘poor’ biological parents
In an important ruling, the Nagpur bench of the Bombay high court (HC) on Friday upheld a family court order, refusing to grant custody of a six-year-old boy to his poor biological parents, observing that the interests of the child will be best served by continuing him with his rich adoptive parents, a childless couple from Nagpur.
The division bench comprising justice AS Chandurkar and justice NB Suryawanshi said there was sufficient evidence on record to prove that the adoptive parents were in a better position to take care of the welfare of the child.
“They (adoptive parents) are taking care of his health, education, intellectual development and are giving him, favourable surroundings and they are imbibing moral and physical values in the child,” said the bench. “In our considered opinion, they are in a better position to look after the moral and physical welfare and the future of the child.”
The observation came in the view of the fact that the adoptive parents belonged to a business family and the adoptive mother was a practising doctor, whereas the biological father, an autorickshaw driver lacked a steady source of income and his financial condition did not appear to be sound.
Besides, HC noted, the auto-driver was married and having two children, and the child in question was born out of his extra-marital relationship with another woman, who later joined his family and also delivered another girl child.
The boy was born on August 30, 2014, at a private hospital in Nagpur and the next day the child and his mother were discharged from the hospital. The father of the unwed mother, however, could not take his daughter and her illegitimate child to his home because of social constraints, his daughter being an unwed mother.
Five days after the delivery, the newborn was diagnosed with jaundice. The helpless father of the unwed mother then decided to hand over the child to the childless married son of his employer, a cloth store owner.
In February 2015, the unwed mother again came in contact with the auto driver when she stepped out for medical treatment. She then joined his company and started demanding custody of the 6-year-old. After the adoptive parents refused to part with custody of the child, in May 2015, they moved the family court at Nagpur seeking custody of the child on the ground of being his biological parents and contending that adoption was alien to Islamic Law.
The adoptive parents also filed a counter-petition for their appointment as guardians of the child.
Two years later the family court rejected the claim of the biological parents and appointed the adoptive parents as guardians of the child. The biological parents had then moved HC in an appeal against the family court order.
HC on Friday dismissed the appeal primarily because the auto driver lacked steady and regular income and had the responsibility to maintain two wives and three children. Besides, he was residing in a tin-shed house.
While dismissing the appeal, HC also took into consideration that the child was handed over to the adoptive parents from the 5th day of his birth and since then the child was nurtured and brought up by them. “The child is now six years of age and naturally he is mentally and emotionally attached to them (adoptive parents). The child has developed a bond with them,” said HC.
“They both appear to be in a position to look after the child and to provide adequate facilities to him in a proper and congenial manner,” said the bench. “In case the child’s custody is handed over to biological parents, it would cause emotional turmoil to the child. He will be uprooted from the present family and the surroundings in which he is brought up and will be required to go in alien surroundings and circumstances, in which it would be difficult for him to adjust,” the court added.