The Delhi High Court observed that mere second marriage of the father after he loses his first wife, cannot be considered as a sufficient ground to disqualify him as a natural guardian of his child.
A two-judge division bench comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that even the disparity in the financial status cannot be taken as a relevant factor for denying custody of a child to his natural parent.
The bench was hearing an appeal filed by the maternal grandparents of a minor boy to challenge a Family Court order dismissing their petition to appoint them as his guardian and also for seeking his permanent custody.
The couple got married in 2007 and gave birth to a baby boy in 2008. According to the child’s maternal grandparents, their daughter was killed by her husband for failing to meet his dowry demand.
The husband and his family members were acquitted in a criminal case in 2012. The case was filed by the grandparents who claimed that the child was handed over to them because the father was absconding.
The maternal grandparents’ claimed that the minor’s custody has always been with them and the husband sought for the transfer of the custody only after the husband’s acquittal. They also submitted that the father remarried and also had a child from the second marriage which made him incapable of taking custody of the minor.
Subsequently, the bench dismissed the child’s grandparents’ plea for appointing them as the minor’s guardian. It also said that there was no other factor submitted for disqualifying the person from the status of natural guardian.
The Court observed, “The other aspect that has been agitated is that he has since got remarried and has a child from his second marriage, therefore, he cannot be termed as a Natural Guardian. However, mere second marriage of the father in the circumstances when he has lost his first wife, cannot be held per-se a disqualification from his continuing to be a Natural Guardian.“
It also said that not even a single incident was put on record to disqualify the husband from being a Natural Guardian and that the family court’s decision of denial of the appointment of the maternal grandparents’ as the guardian of the minor.
The Court further observed that no affection can take place the affection of a father or natural parent. Moreover, it said that the maternal grandparents may have immense love and affection towards the child of their daughter, but it can’t match the love and affection of a natural parent.
It also said, “Even the disparity in the financial status cannot be a relevant factor for denying the custody of a child to the natural parent. However, in the matters of Guardianship and Custody, we are confronted with the dilemma where the logic may say that the child must be in the custody of his father, but the circumstances and the intelligent preference of the child points otherwise. It may not be in the interest and welfare of the child to uproot him from the family where he is happily entrenched since the age of 11⁄2 years.“
The bench confirmed that it was appropriate to initially allow visitation rights to the father but it may be re-visited after a year on his plea, depending upon the circumstances.
Subsequently, the Court ordered, “We, therefore, direct that the respondent/father shall have a right to meet the child on every first and third Saturday in the Children Room of the Family Courts, Karkardooma Courts, Delhi between 3 to 5 PM. In case the child is unable to come for visitation right on any Saturday, the meeting shall be held on the next working Saturday. The said arrangement shall continue for a period of 3 months from today, thereafter, timings shall be from 03:00 P.M. to 07:00 P.M. till further orders. However, the parties shall be at liberty to adjust the timings dependent upon the suitability of both the parties.“
News Source: https://www.livelaw.in/amp/high-court/delhi-high-court/delhi-high-court-child-custody-after-father-second-marriage-no-disqualification-natural-guardian-236887
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