Branding A Child As "Illegitimate" In Itself Amounts To Harassment: Bombay High Court

"This Court is of the opinion that since the petitioners in the present case are the biological parents...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 held.

Justice Manish Pitale favourably considered the guardianship petition filed by the biological parents of the child keeping the interest of the minor child as the paramount consideration.

The child's mother married the respondent in 2005. The child was born during the subsistence of this marriage. The mother and the respondent divorced in 2015. The petitioners were facing practical difficulties as the child's birth certificate recorded the respondent as the father. Hence they approached the high court.

It was the petitioners' case that they are living with the child and the DNA report shows that they are her biological parents. Therefore, they claimed that they are fit to be appointed as guardians of the minor child.

The respondent in an affidavit specifically stated that he has no objection to the petitioners being declared as the natural and legal guardians of the minor child.

According to Muslim law, 'nasab' or descent is established by valid marriage and not by illicit intercourse. Therefore, an illegitimate child or 'walad-uz-zina' has no nasab or parentage and cannot inherit title.

"This Court is of the opinion that for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child", the court stated.

The court relied on Athar Hussain v. Syed Siraj Ahmed and Ors in which the Apex Court held that the Guardians and Wards Act, 1890 can prevail over personal law in keeping the interest of the minor child as the paramount consideration.

The court said that if Muslim law were to be strictly applied in the present case, the minor child would have no inheritance and she would be deprived of her basic rights only because she is the product of a relationship between the petitioners during her mother's marriage to the respondent.

The court noted that the respondent wilfully gave up custody of the child to her mother. If the present petition is no considered, the child would be deprived of her right to be taken care of and maintained by her biological parents who are more than willing to take care of her needs, the court said.

"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", the court stated.

Therefore, the court allowed the petitioners to be appointed as the natural and legal guardians of the minor child without security and remuneration. The court also permitted the petitioners to represent the minor child at school or any other authority as guardians.

Case no. – Guardianship Petition (L) No. 11653 of 2022

Case Title – Sudeep Suhas Kulkarni and Anr. v. Abbas Bahadur Dhanani

Citation: 2022 LiveLaw (Bom) 491