The Bombay High Court Said That Women Have An Absolute Claim Over The Children They Have Out Of A Live-In Relationship.

The marriage v/s live-in-relationship debate has been going on forever. Some say that marriage is the way to because it’s you know, it’s the socially acceptable thing to do while the others say the only difference is a piece of paper. Now, the closest I have come to either is sneaking out of my house to go to my ex’s while his parents were not there so I don’t think I am qualified to partake in this debate. 

However, there is one pro-point for live-in relationships. The Bombay High Court has just observed that women have an indefeasible guardianship over the children that she has during a live-in relationship. Basically, this means that the woman will always get custody of the children that she has out of a live-in relationship and this claim can’t be annulled or overturned. Basically, what this translates to is that men never get the children, if they’re from a live-in relationship.

The court made this observation after it rejected a plea made a 26-year-old man seeking custody of this minor son who was born to a woman he was in a relationship with, in New Zealand. 

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The 26-year-old who is a resident of Pune ,is a divorcee who has a son with his ex-wife. In 2008, he met a New Zealand citizen and developed a relationship with her three years later. They broke up in 2012 and the woman gave birth to their son 6 months after. 

The man approached the Pune family court asking for temporary custody of his son after he learned that his ex was moving back to New Zealand and taking the child with her. He claimed that the woman was not capable of being a guardian on the grounds of mental instability. He sought an order that would stop her from taking the child out of the country.  

The Pune family court rejected his claim which made him approach the high court. He didn’t have much luck there either. 

Justice SC Gupte said, “In other words, it is his own case that the child is an illegitimate child, and if that is so, it is difficult to see how he, as a putative biological father, can claim custody of the child over the woman, who admittedly is its biological mother.” 

Justice Gupte said that under section 6 of the Hindu Minority and Guardianship Act, the mother is the natural guardian of an illegitimate son or an illegitimate unmarried daughter. He said that the father’s claim to that child only comes after the mother. 

The court said that there are only two exceptions to this law. One, if the mother ceases to be Hindu and secondly if she completely renounces the material world and becomes a hermit or an ascetic. And since in this case none of these applied, the woman had an indefeasible claim over the child. 

Also Read: Orissa High Court Says Sex On The False Pretext Of Marriage Doesn’t Amount To Rape. This Puts Women At A Disadvantage.

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The court quashed the man’s claim that said that the mother should not have custody of their 7-year-old son because she was mentally and emotionally unstable with a quarrelsome nature. He also told the court that she tried to limit her son’s social interaction. 

While rejecting his plea, the court said, “Any mental or emotional instability, by itself, is no ground to deny custody to a natural guardian, except insofar as it bears on the physical or mental security and welfare of the child.” 

However, it should be noted that none of the material that the man provided proved that the woman was of unsound mind or was mentally and emotionally unstable. 

This case is the perfect example of the kind of ugly custody battles that women can be saved from because of this law. The thing is, a lot of people who argue in the favour of marriage over a live-in relationship say that there is no security for the woman. This ruling gives the woman some sense of security, so I guess we could say it’s a small win.

https://thehauterfly.com/lifestyle/bombay-high-court-says-consent-acquired-by-false-promise-of-marriage-amounts-to-rape-but-this-is-a-double-edged-sword/