The Delhi High Court has held that mere second marriage of father on losing his first wife cannot disqualify him from continuing to be a natural guardian.

The Court was deciding an appeal under Section 19 of the Family Courts Act, 1984 filed against the order vide which the petition filed by the appellants i.e., maternal grandparents of the minor child to be appointed as ‘Guardian’ and to seek permanent custody was dismissed.

A Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna noted, “… one needs to consider if the respondent has suffered any disqualification for losing the status of a Natural Guardian. Aside from a criminal trial, there is no other disqualification which has been brought on record. 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.”

The Bench said that though the respondent was released on bail and was acquitted in the criminal case in 2012, his endeavour to develop the affection with the child has not yielded much result.

Advocate Jai Bansal represented the appellants while the respondent appeared in person.

Factual Background -

A petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 was filed on behalf of the maternal grandparents/appellants to be appointed as Guardian and for permanent custody of their grandson. The appellants’ daughter was married to the respondent and the couple was blessed with one son. According to the appellants, their daughter was killed by the respondent on account of dowry demand and harassment within 7 years of marriage. An FIR under Sections 304-B/34 IPC was registered against the respondent and his parents. The respondent eloped with the child, however, subsequently, the respondent and his parents were arrested and sent to judicial custody.

Immediately after the respondent and his parents were sent to jail, the Guardianship Petition was filed by appellants seeking the custody of the child. The child was handed over to the appellants and since then, the child was in their continuous custody. The respondent and his other family members were acquitted in the criminal case and hence, a criminal appeal was preferred against the same which was admitted by the High Court. The Judge, Family Courts directed the custody of the child to remain with the appellants. The respondent filed two SLPs before the Supreme Court challenging the orders of the High Court and Family Court, but they also got dismissed by the Apex Court.

The High Court after hearing the contentions of the counsel observed, “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.”

The Court said that undeniably there can be no substitute to the affection of a natural parent. It further said that 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. 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 1½ years”, held the Court.

The Court, therefore, directed that the respondent/father shall have a right to meet the child on every first and third Saturday in the Children Room of the Family Courts, Karkardooma Courts, Delhi between 3 to 5 PM and in case the child is unable to come for visitation right on any Saturday, the meeting shall be held on the next working Saturday.

“The said arrangement shall continue for a period of 3 months from today, thereafter, timings shall be from 03:00 P.M. to 07:00 P.M. till further orders. However, the parties shall be at liberty to adjust the timings dependent upon the suitability of both the parties”, added the Court.

Accordingly, the High Court dismissed the appeal for appointment of appellants as Guardian but modified the judgment in regard to the custody.

Cause Title- Mohd. Irshad & Anr. v. Nadeem (Neutral Citation: 2023:DHC:6311-DB)

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