The Bombay High Court has granted guardianship of a minor to her biological parents after she was deemed to be an illegitimate child as was born out of a valid marriage.

The bench of Justice Manish Pitale observed that the consideration of the welfare of the minor should be the paramount factor and said that "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 petitioners were the biological parents of the minor child whose guardianship was sought by way of the present petition.

In this case, the minor child was deemed to be an illegitimate child as was born out of valid marriage between petitioner no.2 (Minor's mother) and the respondent (Husband of petitioner no. 2, who was a Muslim). But the fact of the child being born out of the marriage came to light later, as a result of which the mother and the respondent got divorced. However, the child was born during the subsistence of the marriage of the petitioner and the respondent, the child was deemed to be Muslim and Shia Law applied to her.

Advocate Gauraj Shah appeared for the petitioners and relied upon Commentaries on Muslim Law and submitted that an illegitimate child referred to as 'walad-uz-zina' has no nasab (decent) or parentage and that the child cannot inherit title or otherwise. They also relied on various Supreme Court judgments wherein it was that the welfare of the child is of paramount consideration and the same would take precedence over the personal laws.

Therefore, the petitioners prayed the Court to exercise its power under sections 7 and 15 of the Guardians and Wards Act and declare petitioners as the guardians of the child. As even the respondent consented to the same and provided no-objection affidavit.

The Court relied upon the decision of the Apex Court in the case of Athar Hussain Vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654 and observed 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 was also observed that "Applying the principles of the Mahommedan Law strictly to the facts of the present case, it would appear that the minor child would have no inheritance and she would virtually stand deprived of 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, the Court held that "since the petitioners in the case were the biological parents and there was sufficient material placed on record to show that petitioner No.1 was the biological father of the minor child, it would be a 'travesty of justice' if the prayers made in the present petition were not considered, merely because the personal law applicable to the minor child indicated that being an 'illegitimate child', she had no rights towards inheritance or descent."

Accordingly, the petition was allowed.

Cause Title- Sudeep Suhas Kulkarni & Anr. v. Abbas Bahadur Dhanani

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Bombay High CourtJustice Manish Pitale

Sanjoli N Srivastava