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Synopsis

The Delhi High Court recently dismissed an appeal by grandparents of a minor seeking custody and guardianship, inter-alia, on the ground that father of the child had remarried and this fact had “incapacitated” him to continue as guardian of the child begotten from his first marriage. Recognizing there is no substitute to love and affection of a natural parent, the Court allowed visitation rights to the father adding that not even disparity in financial status can oust the rights of a natural guardian.

A Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna, while dismissing the appeal, held, “… 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... No doubt, the maternal grandparents may have immense love and affection towards the child, but 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 custody of a child to the natural parent. 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.”

The main contentions raised by the appellants were;

a) Repeated change in custody was not in the “best interest” of the child;

b) Respondent (Father/natural guardian) and his family members had no love or affection for the child;

c) The child was in the custody of the appellants since he was about 1.5 years of age, and at the time of appeal, he was 10 years – Uprooting the child now would cause tremendous trauma to the child who has already lost his mother.

d) The Family Court failed to appreciate the intelligent preference of the child who expressed his desire to remain with the appellants.

e) Respondent has remarried and has a child from the second marriage which incapacitates him from taking the custody of the child.

f) Respondent is barely 8th pass and has no source of income.

“… it is not considered in the interest and welfare of the child to uproot him completely at this stage, yet, as already discussed above, there can be no substitute to the parental love and affection and thus, it is considered appropriate that initially limited visitation rights be given to the respondent which may be revisited after one year on the application of the respondent/father of the child if the circumstances so justifies”, Court added.

Brief Background

An appeal was preferred against the judgment dated 21.03.2018 passed by the family court, wherein petition by the appellants seeking guardianship and permanent custody of the child was dismissed.

The daughter of the appellants and the respondent got married on 25.1.1.2007.

On 22.01.2010, appellant’s daughter was found dead suspecting a case of dowry harassment. Accordingly, FIR was registered under Section 304B/34 of the Penal Code, 1860 against the respondent and his parents.

After the accused persons were arrested and put in jail, a guardianship petition was filed and on 30.05.2010, the child was placed in the custody of the appellants.

The respondents were acquitted in the said criminal case on 07.11.2012, however an appeal was preferred against the same, which is still pending before the High Court.

In an application for interim custody moved by the respondent, the family court initially directed custody to be handed over to respondent, vide order dated 04.03.2013, which was set aside later in CM Petition No. 558/13, vide order dated 22.05.2013.

Case Title: Mohd. Irshad v. Nadeem | Mat App. (FC) 218 of 2018