Source: Delhi High Court

Why in News?

Recently, the High Court of Delhi in the matter of Mohd. Irshad & Anr. v. Nadeem, held that mere second marriage of the father, after his first wife’s death, doesn’t disqualify him from being the natural guardian of his child.

Background

• The appellant’s daughter and respondent got married in 2007 and the child was born in 2008.
• As per the appellants (maternal grandparents), their daughter was killed by the respondent on account of dowry demand and harassment within 7 years of marriage that is on 22nd January 2010.
• The First Information Report (FIR) under Section 304B of the Indian Penal Code, 1860 (IPC) was registered against the respondent and his parents.
• The respondent and his parents were sent to jail.
• The Child was handed over to the appellants on 30^th September 2010 and since then, the child has been in their continuous custody.
• The respondent and his parents were acquitted in the criminal case on 7th November 2012.
• The respondent filed an application seeking interim custody of the child from the appellants on the premise that he and his family members have been acquitted in a criminal case which was later dismissed.
• The appellants filed a petition in the Family court to appoint them as the guardian of the child as the father got remarried, the petition was later dismissed.
• Thereafter an appeal was filed before the Delhi High Court by the appellants.
• Dismissing the plea for appointment of the minor’s guardian, the High Court said that apart from a criminal trial, there was no other factor on record for disqualification of the husband.

Court’s Observations

• A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna observed that the mere second marriage of the father, when he lost his first wife, cannot be held as a disqualification from his continuing to be a natural guardian of his child. Even the disparity in financial status cannot be a relevant factor for denying the custody of a child to the natural parent.
• The bench further observed that there can be no substitute for the affection of a natural parent. It added that while the maternal grandparents may have immense love and affection towards the child, it cannot substitute the love and affection of a natural parent.
• The bench considered it appropriate to initially grant limited visitation rights to the father which may be re-visited after one year on his application, if the circumstances so justifies.

Legal Provisions

Hindu Minority and Guardianship Act, 1956 (HMA)

• This Act was enacted in the year 1956 for the purpose of amending and codifying the law relating to minority and guardianship among Hindus.

Section 6, HMA

• Section 6 of this Act deals with the provisions of the Natural guardian of a Hindu Minor. It states that -
  • The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
  • (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
  • (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
  • (c) in the case of a married girl—the husband:
  • Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—
  • (a) if he has ceased to be a Hindu, or
  • (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (sanyasi).
  • Explanation —In this section, the expressions father and mother do not include a stepfather and a stepmother.
• In Jajabhai v. Pathankhan (1971), the Supreme Court held that the mother could be considered as the natural guardian of a minor girl as she was under the care and protection of her mother.

Section 304, IPC

This Section deals with dowry death. It states that -

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation. —For the purposes of this sub-section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life.