Father’s Second Marriage After First Wife's Death Doesn't Per Se Disqualify Him From Being Child’s Natural Guardian: Delhi High Court

The Delhi High Court has observed that mere second marriage of the father, when he lost his first wife, cannot be held per-se a disqualification from his continuing to be a natural guardian of his child.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna also observed that even the disparity in the financial status cannot be a relevant factor for denying the custody of a child to the natural parent.

The bench was dealing with an appeal moved by maternal grandparents of a minor boy challenging 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 the child was born in 2008. It was the grandparents’s case that their daughter was killed by the husband due to dowry demand and harassment within seven years of marriage in 2010. The husband and his family members were acquitted in 2012 in a criminal case filed by the grandparents, who claimed that the child was handed over to them after the father was absconding.

It was the grandparents’ case that the minor’s custody has always been with them and that it was only after the husband’s acquittal that he ever sought the transfer of the custody. They also submitted that the father remarried and had a child from the second marriage which incapacitated him from taking custody of the minor.

Dismissing the grandparents’ plea for appointment of the minor’s guardian, the bench said that apart from a criminal trial, there was no other factor on record for disqualification of the husband.

“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,” the court observed.

It said that no circumstance was brought on record to disqualify the husband from being a Natural Guardian and that the family court had rightly denied the maternal grandparents to be appointed as the minor’s guardian.

The court observed that there can be no substitute to 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.

“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 court said.

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.

“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,” the court ordered.

Title: MOHD. IRSHAD & ANR. v. NADEEM

Citation: 2023 LiveLaw (Del) 786