Second marriage 'no ground' to disqualify father from being natural guardian of his child: Delhi HC

New Delhi: The Delhi High Court has recently ruled that after the death of the first wife, a second marriage cannot be a ground to disqualify a father from being the natural guardian of his child from the first marriage.

The division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna said that no circumstance whatsoever has been brought on record other than the criminal trial to disqualify the respondent (father) from being a natural guardian.

"The other aspect agitated is that he has since remarried and has a child from his second marriage, therefore, he cannot be termed as a Natural Guardian. However, the 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 division bench observed in the judgement of September 1.
The High Court has granted limited visitation rights to the father.

Father Nadeem was arrested in 2010 for the alleged dowry death of his wife. However, he was acquitted in 2012.
The trial court had denied declaring the maternal grandparents as the natural guardians of the child.
Thereafter, they approached the high court challenging the order.

The learned Principal Judge, Family Courts has thus rightly denied the appellants/maternal grandparents to be appointed as the Guardian of the minor, the division bench observed in the judgement passed on September 1.
However, the High Court said that the Family Court while giving a definite finding of denying the claim of the appellants to be appointed as guardian, has unfortunately not considered the aspect of custody while dismissing the petition of the appellants.

The bench said that it is not considered in the interest and welfare of the child to uproot him completely at this stage, yet, there can be no substitute for parental love and affection and thus, it is considered appropriate that initially limited visitation rights be given to the respondent which may be re-visited after one year on the application of the father of the child if the circumstances so justifies.
It is not denied that the child was 1.5 years old since the appellants had his custody. Even though the father's effort to develop the affection with the child, has not yielded much result, the bench said.
The High Court noted that the child since infancy has been in the custody of the appellants.

The judges said, "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 high court said that No doubt, the maternal grandparents may have immense love and affection towards the child, but 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," the high court said.
"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," the bench observed.
It may not be in the interest and welfare of the child to uproot him from the family where he has been happily entrenched since the age of 1.5 years, the high court noted.