Indian society has always discriminated against those who are not born out of wedlock. This non-acceptance has made the issue of child custody of illegitimate children a delicate matter. The custody rights of unmarried individuals are different from those who are married.
Illegitimate child in India.
As given by the Supreme court in “Smt. Parayankandiyal v. K.Devi & Ors”, illegitimate children are children who are not born out of lawful wedlock. The legitimacy or illegitimacy of a child depends on the status of valid or void marriage.
Custody of Illegitimate children under different personal laws:
Hindu law
Hindu law dictates that a marriage is valid, only if all conditions listed under Section 5 and Section 7 of the Hindu marriage act are fulfilled. Only children born out of such marriages are considered to be legitimate.
According to Section6(a) of the Hindu Minority and Guardianship Act, the Father is considered as the natural guardian of the legitimate son and unmarried legitimate daughter, after which the mother. Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
However, Section 6(b) of the Act deals with illegitimate children. As per this the mother is the natural guardian of an ill-conceived boy or ill-conceived unmarried girl, the fathers’ case of guardianship comes after hers.
Exception of Live in relationship
In “Tulsa & others vs. Durghatiya & others” the Apex court held that children born out of live-in relationships are not to be considered as illegitimate. The parents of the child must have cohabitated for a certain amount of time so that the society recognizes them as husband & wife. Hence, laws which are applicable to legitimate children will also be applicable to children born out of live-in relationships.
Muslim law
Under Muslim law, the custody of an illegitimate child lies with the mother until the age of seven, after which it is the child’s choice. Fathers are not entitled to guardianship or custody of minor illegitimate children under.
As for the custody of an illegitimate child belonging to different religion, the court in “ABC v. The State (NCT of Delhi)” held that an unwedded mother can legally claim her child’s custody for the interim duration unless the child’s biological father brings forth any objections. It further stated that “It is the unwed mother who has the primary custodial rights with regard to her children and that the father is not conferred an equal status merely by virtue of his having fathered the child.”
Which Parent Gets Custody?
Irrespective of the natural guardian, one may always file for custody. As stated in “Sheoli Hathi vs. Somnath Das”; “the welfare & well-being of the child shall be the paramount consideration while deciding the custody of the child.” The courts always make an effort to grant both parents equal rights with regards to Custody. However, in some cases the custody rights are granted to only one parent. While determining which parent should be granted custody, the courts might consider the:
- Mental, physical and emotional ability to make legal decisions on behalf of another person;
- The history between the child and parent;
- Any history of abuse or neglect;
- Wishes of minor child;
- Financial status of both parents
Conclusion
Though courts do not discriminate against fathers, it can be difficult for the father to win a child custody battle. However, with child custody laws evolving in India, Indian Courts have adopted the uniform practice of keeping the child’s best interest in mind while granting custody.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.
This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.
Cases argued by Aditya Pratap can be viewed here.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.
