Second Marriage After First Wife’s Death Doesn’t Disqualify a Father from Status of Natural Guardian

The Delhi High Court recently observed that a mere second marriage of the father after losing his first wife, can’t be held per se disqualify him of his status of being a natural guardian of his child.

A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna further observed that even the disparity in the financial status cannot be a favourable factor for the denial of the custody of a child to the natural parent.

The bench made these observations while hearing an appeal moved by the maternal grandparents of a minor body challenging a family court order dismissing their petition to appoint them as his guardian and also seeking his permanent custody.

The father and mother of the child got married in 2007 and he was born in 2008. It was his maternal grandparents’ case that their daughter was killed by her husband in 2010 due to the failure of fulfillment of his dowry demand. However, the husband and his family members were acquitted in 2012 in a criminal case filed by the maternal grandparents who contended that the child was handed over to them after absconding of his father.

The grandparents also told the court that the minor’s custody has always been with them and the husband only made efforts to seek transfer of custody only after his acquittal. They also submitted that the father got married again and had a child from the second marriage which disqualifies him from taking custody of the minor child.

The bench dismissed the grandparents’ plea for appointing them as permanent guardians of the minor by stating that apart from a criminal trial, there are no other factors on record that could disqualify him from his minor child’s custody.

The Court observed, “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, 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.“

It also noted that no event 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 also observed that nothing can be replaced with the affection of a natural parent. It further added that though the maternal grandparents may have deep love and affection towards the child, it cannot substitute the love and affection of a father.

The Court said, “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 bench found it appropriate to initial grant of limited visitation to the father which may be re-visited after one year on his application, if the conditions justify it.

Eventually, the Court ordered, “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.“

News Source: https://www.livelaw.in/amp/high-court/delhi-high-court/delhi-high-court-child-custody-after-father-second-marriage-no-disqualification-natural-guardian-236887