The Bombay High Court while allowing a guardianship petition filed by biological parents opined that branding a child as 'illegitimate' amounts to harassment.
The single-judge bench of Justice Manish Pitale while adjudicating upon a petition under the provisions of the Guardians and Wards Act, 1890, seeking various reliefs observed that petitioners being the biological parents of the child, it would be a travesty of justice if the prayers made are not considered, merely because the personal law applicable to the minor child indicates that being an ‘illegitimate child’, she can have no rights towards inheritance or descent.
The petitioners have specifically asserted that although the minor child was born during the subsistence of the marriage between petitioner No.2 and the respondent, as a matter of fact, petitioner No.1 is the biological father of the minor child.
When petitioner No.2 approached Family Court praying for a decree for declaration of her status as ‘divorced’, the Court passed its judgment and order in the said petition.
It was recorded as a matter of fact that the said minor child was not born from the respondent as he was not the biological father and that the custody of the minor child always remained with her mother i.e. petitioner No.2. The Family Court further observed that since the Talaqnama dated 19.10.2015 was executed by consent and it was a valid Talaq or divorce, the decree as sought by petitioner No.2 was unnecessary. It was held that no cause of action was made out and on that basis, the petition stood rejected under Order 7, Rule 11(a) of the Code of Civil Procedure, 1908.
In the present petition, it has been stated that the petitioners are residing together with the minor child and that the material placed on record along with the petition, including the DNA Test report, sufficiently shows that the petitioners are indeed the biological parents of the minor child.
The Court was also particularly apprised of the practical difficulties faced by the child in the peculiar facts and circumstances of the present case, inter alia, because the birth certificate of the minor child records petitioner No.2 as the mother and the respondent as the father, although petitioner No.1 is the biological father of the minor child.
The Court took note of the position of law in respect of the rights available to a child, who is born outside marriage, as in the present case and remarked that it is unfortunate that they are referred to as 'illegitimate child'.
The Counsel also referred to Commentary on Muslim Law authored by Manzar Saeed in the Second Edition 2015, wherein it has been stated that nasab or descent under Muslim Law is established by valid marriage or by the semblance thereof and it is not established by illicit intercourse (zina).
It has also been stated in the Commentary that when man commits zina with woman, the descent of the child is not established from the man but it is established only from the woman by its birth. It is further stated in the Commentary that an illegitimate child referred to as ‘walad-uz-zina’ has no nasab or parentage and that the child cannot inherit title or otherwise.
Reference was also made to the Principles of Mahommedan Law by Mulla, 21st Edition, wherein it is stated that paternity of the child can only be established by marriage between its parents.
Reliance was placed on Athar Hussain Vs. Syed Siraj Ahmed & Ors., 2010 Latest Caselaw 3 SC wherein it was held 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.
Applying the principles of the Mahommedan Law strictly to the facts of the present case, the Court was of the view 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.
The Court opined that that since the petitioners in the present case are the biological parents and there is sufficient material placed on record to show that petitioner No.1 is the biological father of the minor child, it would be a travesty of justice if the prayers made in the present petition are not considered, merely because the personal law applicable to the minor child indicates that being an ‘illegitimate child’, she can have no rights towards inheritance or descent.
Allowing the petition, the Court oobserved:
"It is undisputed that the minor child has been in the custody of petitioner No.2 i.e. her mother and it is specifically stated in the petition that petitioner Nos.1 and 2 are residing together along with the minor child. The material on record, including the DNA report demonstrates and this Court is satisfied to conclude that the petitioners are indeed the biological parents of the minor child. They have specifically undertaken to take care of all the needs of the minor child ‘Ziana’."
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(With input from news agency language)
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