Vidushi Vats
While granting a father the limited visitation right of his child, the Delhi High Court says a man’s second marriage after losing his first wife doesn’t stop him from being the natural guardian of his child from the first marriage.
The facts of this case date back to 2010 when the father had been arrested for the dowry death of his wife – the child’s mother.
In 2012, he was declared not guilty in the case. However, there’s an ongoing appeal against this decision in the High Court. At the same time, the child’s maternal grandparents approached the family court, asking for permanent custody and official recognition as the child’s guardians. This request was denied, which has now prompted them to appeal to the High Court.
The division bench of the case based their decision on the rationale that other than the criminal trial, there was no other disqualification brought on record against the child’s father.
They explained, “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 also pointed out that the child has been in the care of the maternal grandparents since he was just 1.5 years old. Despite the father’s efforts to build a bond with the child, it didn’t show significant progress. In this context, the court mentioned, “The child since infancy has been in the custody of the appellants. When we had interaction with the child in the chamber who is now about 15 years of age, he revealed that he felt alienated from the father and was comfortable in the custody of the appellants and was being well looked after by them.”
The Court recognized the strong love and care that the maternal grandparents have for the child. However, it underlined that this affection cannot replace the natural parent’s love and care. Additionally, the Court stated that financial disparities should not be considered as a valid reason to deny custody to the biological parent.
Concluding the case, the Court awarded the father restricted visitation privileges for a year, with the possibility of reevaluation upon the father’s request at a later date.
Name of the case: Mohd. Irshad & Anr. vs. Nadeem
Bench: Justice Suresh Kumar Kait and Justice Neena Bansal Sharma