Guardianship of Illegitimate Children

1. Gohar Begum v Suggi @ Nazma Begum & Ors. [AIR 1960 SC 93]

In the Supreme Court of India

The Appellant was an unmarried Sunni Muslim woman. She had an infant illegitimate
child who was living with the respondents. The appellant made an application to the
High Court of Bombay under s. 491 of the CrPC for the recovery of the custody of the
child from the respondents. The High Court refused the application. Supreme Court
allowed the appeal.

Para 7 - Under Muslim Law, the appellant being the mother, has the rightful claim over
the custody of the illegitimate child no matter who the father is.

Para 7, 8 - when a child is unlawfully detained from her natural parent’s custody it is
equal to unlawful imprisonment. So, in such cases a writ of habeas corpus (a. 491) can
be issued for custody.

Para 9 - the child’s welfare is the prime concern.

2. Gita Hariharan & Ors. v Reserve Bank of India [(1999) 2 SCC 228]

In the Supreme Court of India (3 judges bench)

The validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 was
challenged on the ground that dignity of women is a right inherent under the
Constitution which as a matter of fact stands negated by Section 6 of the Act of 1956.

The meaning of the word ‘after’, in section 6(a) of the act, was reinterpreted by the
court.

Para 36- Welfare of the child is the predominant criterion for deciding the
guardianship.

Para 46- The word 'after' does not necessarily mean after the death of the father, on the
contrary, it depicts an intent so as to ascribe the meaning thereto as 'in the absence of-
be it temporary or otherwise or total apathy of the father towards the child or even
inability of the father by reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word 'after' as used in Section 6 then and in that
 event the same would be in accordance with the intent of the legislation viz. welfare of
the child.

3. Lila v Ram Jattan [(2009) 156 PLR 286]

In the high court of Punjab and Haryana (Divisional bench)

Application filed for the custody of child under section 25 of Guardian and wards act,
1890. The petitioner claimed that the child was born in association with him. But the
woman denied her status as the wife of the petitioner and also the paternity of the
petitioner.

Para 2 – A putative father is not a lawful guardian and in case of an illegitimate child,
mother alone is the guardian.

4. ABC v The State (NCT of Delhi) [(2015) 10 SCC 1]

In the Supreme court of India

A single mother wished to nominate her son for all her assets and properties. She was
informed that she must either declare the name of the father or get a
guardianship/adoption certificate from the Court. She thereupon filed an application u/s
7 of Guardians and Wards Act, 1890 for declaring her the sole guardian of her son.
Court ruled that guardianship can be granted to the single mother without serving a
notice to the father.

Para 10 - Section 6(b) of the Hindu Minority and Guardianship Act, 1956 gives
primacy to the mother over the father. Mohammedan law also accords custody of
illegitimate children to the mother and her relatives.

Para 19 - A study of laws in other countries is made to understand what various

jurisdictions felt is in the best interest of the child not to understand the tenets of
Christian law.

Para 25 - There is no mandatory and inflexible procedural requirement of notice to be

served to the putative father in connection with a guardianship or custody petition
preferred by the natural mother of the child of whom she is the sole caregiver.

Guardianship or custody orders never attain permanence or finality and can be

questioned at any time, by any person genuinely concerned for the minor child, if the
child's welfare is in peril. The uninvolved parent is therefore not precluded from
approaching the Guardian Court to quash, vary or modify its orders if the best interests
of the child so indicate.