Mumbai: HC grants illegitimate child's guardianship to her biological parents, says 'Minor can’t be penalised for no fault of hers'

The court was hearing a petition filed by the minor’s biological parents seeking to be declared her guardians. The child was born to a Hindu mother out of marriage to a Muslim man.

Urvi MahajaniUpdated: Thursday, December 15, 2022, 08:46 AM IST
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Mumbai: A minor child cannot be left high and dry for no fault of hers, the Bombay High Court observed and recently granted a minor’s guardianship to her biological parents after she was deemed to be an illegitimate child as a result of being born out of marriage.

"Such a situation where the minor child, for no fault of hers, is left high and dry, cannot be countenanced and, therefore, this court is of the opinion that keeping the interest of the minor child as the paramount consideration, the present petition can be favourably considered,” said Justice Manish Pitale.

The court was hearing a petition filed by the minor’s biological parents seeking to be declared her guardians. The child was born to a Hindu mother out of marriage to a Muslim man. In 2005, the mother converted to Islam and married the respondent. The child was born during their marriage and was deemed to be a Muslim and this was recorded in her birth certificate.

It was revealed later that the respondent was not the biological father of the child. He gave talaq according to the Muslim personal law and they separated.

Despite the talaq being valid, the mother sought formal divorce which was granted. The child’s custody was given to the mother and the respondent expressed no interest in the custody, care or guardianship of the minor.

However, as the child was born during the marriage, Shia laws applied to her, according to which illegitimate children are considered to have no ‘nasab’ (descent) and neither parent of such minor is considered as a guardian. This means that the status of such an illegitimate child is equivalent to that of an orphan. Despite having both biological parents, such illegitimate children are not granted status, title, rights or inheritance of property of either parent.

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