Bombay High Court: In a petition filed under the provisions of the Guardians and Wards Act, 1890 seeking them i.e. petitioner 1 and 2 to be appointed as the guardian of the minor child as they are the biological parents of the child but while she was born petitioner 2 was married to the respondent as the couple is Muslim, the personal law of Muslims bars such legitimacy being provided to the child, Manish Pitale J., allowed the prayer in the present petition keeping the interest of the minor child as the paramount consideration.
The petitioners have specifically asserted that although the minor child was born during the subsistence of the marriage between petitioner 2 and the respondent, as a matter of fact, petitioner 1 is the biological father of the minor child. The respondent thus divorced petitioner 2 and thereafter petitioners 1 and 2 are residing together and petitioner 1 seeks guardianship rights over the minor child.
The grievance in the instant case is that the petitioners and the minor child are facing practical difficulties because the birth certificate of the minor child records petitioner 2 as the mother and the respondent as the father, although petitioner 1 is the biological father of the minor child.
The Court noted that in the Commentary on Muslim Law authored by Manzar Saeed in the Second Edition 2015, it is 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). Thus, an illegitimate child referred to as ‘walad-uz-zina’ has no nasab or parentage and the child cannot inherit the title or otherwise.
The Court remarked that according to the Principles of Mahommedan Law by Mulla, 21st Edition, the paternity of the child can only be established by marriage between its parents. The Court Applying the principles of the Mahommedan Law strictly to the facts of the present case noted that 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.
The Court recorded “If the prayers of the petitioners in the present petition are not considered favourably, it would create a situation where the respondent already having given up any claims towards the minor child, she would be deprived of the right to be taken care of and maintained by the petitioners, who are more than willing to take care of her needs, being the biological parents of the minor child.”
Thus, keeping the interest of the child as paramount consideration, the Court appointed and declared the petitioners as the natural and legal guardians of the minor Ziana and permitted to represent the said minor Ziana at school or any other authority as guardians of the minor.
[Sudeep Suhas Kulkarni v. Abbas Bahadur Dhanani, 2022 SCC OnLine Bom 6717, decided on 08-12-2022]
Advocates who appeared in this case :
Mr. Gauraj Shah a/w. Ms. Priyanka Sinha and Ms. Simran Grover i/b. ANP Partners for Petitioners.
*Arunima Bose, Editorial Assistant has reported this brief.
