Chhattigarh High Court: A Division Bench of the High Court recently decided a case filed under Section 47 of the Guardians and Wards Act, 1890 read with Section 19(1) of the Family Courts Act, 1984 against the order of the Family Court allowing the respondent wife’s application for custody of minor girl child of both the parties.
The parties married 7 years ago and 2 girls, Ashtha and Sakshi were born during the wedlock and on account of giving birth to two girls, wife was being harassed by her in-laws and one day, was kicked out of her matrimonial home with only Ashtha and Sakshi was left with the husband. The husband denied giving the custody of Sakshi to wife alleging that if the child stays with her mother, she too would become characterless like her. However, no such allegation could be proved in the Family Court.
The respondent contended that her father had enough money to teach both her daughters and the elder daughter was being brought up quite well. During this course, the Family Court interacted with the younger daughter and found out that the young girl was intelligent and communicative and further observed that a child should not suffer for the fault of parents as she is not an inanimate object who can be handed over from one parent to another and said a child must not suffer when parents are fighting. The lower court ordered that child would be able to meet the mother occasionally to which as the wife states, the husband did not comply and later on, the the custody was handed over to mother i.e. respondent.
It was informed to the Court that he had already filed a divorce petition and wife apprehended that he might remarry after divorce and the, the minor girl would be left at the mercy of step-mother. The Supreme Court observed that in dispute pertaining to custody of minor, Courts should keep in mind the paramount interest of the minor and referred to a recent judgment of Apex Court in Purvi Mukesh Gada v. Mukesh Popatlal Gada, (2017) 8 SCC 819 stating that the High Court must ascertain about the welfare of the child before passing the order regarding custody of a child.
The Bench comprising Prashant Kumar Mishra and Arvind Singh Chandel, JJ. noted that it is important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years and at this stage of life, a girl child would need her natural mother the most. Finally, the Court held that the appeal is liable to be dismissed the trial court is fully justified in directing handing over custody of the girl child to mother. [Balram v. Sushma, 2017 SCC OnLine Chh 1247, decided on 08.11.2017]
Its misinterpretation of words. if we take meaning of out of wedlock, then what does mean before Court ?
Out of means from the marriage meaning we are taking in our regular practice. So it is correct. No other meaning can be taken in that particular sence.
The phrase “born out of wedlock” means born of parents who were not married at the time of birth.(Duhaime’s law dictionary: Collins dictionary: Dictionary. com). In the present case, the correct expression is “born during wedlock”.
“The legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated or to have been living apart under an order more than nine months before its birth, the presumption is reversed.” (The Michigan Paternity Act, circa 2011 (§722.711 of the Michigan Compiled Laws)
” A bastard or illegitimate child is one born out of lawful wedlock. A child may be born out of lawful wedlock, either because he is the child of a woman who is not lawfully married at all, or because he is the child of a woman who is lawfully married, but upon whom he is begotten by another than her lawful husband.” (Phipson on Evidence)