Woman has primary claim on children: HC

The Bombay high court (HC) observed that a woman in a live-in relationship has an indefeasible claim of natural guardianship of the children born from said relationship,

The Bombay high court (HC) observed that a woman in a live-in relationship has an indefeasible claim of natural guardianship of the children born from said relationship, and on Tuesday rejected the plea of a Pune resident seeking custody of his minor son born out of a romantic relationship with a woman from New Zealand.

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The 26-year-old, who has a son with his ex-wife, said he met the New Zealand citizen in 2008. Three years later the couple began a romantic relationship that lasted till June 2012, by which point the woman was pregnant. She gave birth to a boy about six months after the break-up.

The man had moved the family court at Pune for temporary custody of the minor after he learnt that his partner had decided to shift back to New Zealand with the child. Claiming that the woman was mentally unstable and unable to be a guardian, the man had also sought an order restricting her from taking the child out if India.

He moved the HC after the family court rejected his plea. HC too dismissed his claims.

Justice SC Gupte said the man claimed that the child was born not out of wedlock but out of a romantic relationship. “In other words, it is his own case that the child is an illegitimate child, and if that is so, it is difficult to see how he, as a putative biological father, can claim the custody of the child over the woman, who admittedly is his biological mother,” the judge added.

Justice Gupte said under section 6 of the Hindu Minority and Guardianship Act the mother is the natural guardian of an illegitimate boy or an illegitimate unmarried girl, and the father’s claim of guardianship comes only after hers.

There are only two exceptions to this rule – either the woman ceases to be a Hindu or completely renounces the material world and becomes a hermit or an ascetic, HC said. Thus, it added, the woman had an indefeasible claim to natural guardianship of her child.