The Bombay High Court in the recent case of Sudeep Suhas Kulkarni and Anr. vs Abbas Bahadur Dhanani held that a minor’s guardianship is granted to her biological parents after being deemed to be an illegitimate child born after their marriage.
The Single Judge bench of Justice Manish Pitale observed that in a situation where a minor child becomes destitute without any mistake of hers cannot be accepted and therefore, the Court can take into account the plea keeping into consideration the welfare of the minor girl.
The biological parents of the minor girl child filed the petition. The mother of the minor was Hindu and converted to Islam after marriage in 2005. The minor girl child was born during the subsistence of their marriage and hence, was deemed or believed to be their child only. In the view of that the minor was considered to be a Muslim and this was registered in her birth certificate. Later, when the respondent came to know about the same, he got divorced with the minor’s child in 2005.
The respondent showed no interest in the guardianship or custody of the child and the custody was given to minor’s mother. The court found that Shia law applies to the minor as she was born during the marriage. As per the Shia Law, an illegitimate child is deemed to have no ancestry and hence, none of the parents is deemed to be guardian and his or her position is similar to that of orphan. Thus, the status of such an illegitimate child is equivalent to that of an orphan. As a result of this, such a child are not given any inheritance or property rights.
The Petitioner’s Counsel made the submission that the present situation violates the rights of the minor due to such harsh personal laws. The minor’s interest is of paramount importance and would be considered above the personal laws.
Therefore, the Court exercise its powers as per the Section 7 and Section 15 of Guardians and Wards Act,1890 and declared the petitioner and the respondent as the guardians of the minor and alongwith it the respondent filed his affidavit of No objection regarding the same.
The Court held that in case of a conflict between the provisions of personal law and the provisions of the GAWA, 1890, the court can give precedence to GAWA keeping in mind the interest of minor child.
Thus, it was noted that by applying personal laws, the minor child would be deprived of her basic inheritance rights and the same could lead to a travesty of justice. Hence, the guardianship of the minor was given to her biological parents.
Refer to the following case for more details - Sudeep Suhas Kulkarni and Anr. vs Abbas Bahadur Dhanani