The welfare of the minor child is the paramount consideration, and the provisions of the Guardians and Wards Act, 1890, should prevail over personal law in cases of conflict.

ORDER :

1. Heard Mr. Shah, learned counsel for the petitioners.

2. This petition is filed under the provisions of the Guardians and Wards Act, 1890, seeking various reliefs. The facts of the present case are peculiar.

3. Petitioner No.2 and the respondent were married on 14.08.2005 and minor child was born on 06.08.2011. The petitioners have specifically asserted that although the minor child was born during the subsistence of the marriage between petitioner No.2 and the respondent, as a matter of fact, petitioner No.1 is the biological father of the minor child.

4. Perhaps for the aforesaid reason and due to other circumstances, the respondent divorced petitioner No.2 by means of a written Talaqnama dated 19.10.2015. Copy of the same along with its translation is placed on record with the petition. It is recorded in the said document that on the said date, the respondent pronounced Talaq to petitioner No.2 in the presence of two witnesses upon payment of amounts towards Meher and Iddat by way of cheques. Although as per the requirements of Muslim Law, petitioner No.2 and the respondent stood divorced, by way of abundant caution, petitioner No.2 filed Petition No.B-77 / 2017 before the Family Court at Bandra, praying for a decree for declaration of her status as ‘divorced’. On 05.12.2018, the Family Court passed its judgment and order in the said petition. It was recorded as a matter of fact that the said minor child was not born from the respondent as he was not the biological father and that the custody of the minor child always remained with her mother i.e. petitioner No.2. The Family Court further observed that since the Talaqnama dated 19.10.2015 was executed by consent and it was a valid Talaq or divorce, the decree as sought by petitioner No.2 was unnecessary. It was held that no cause of action was made out and on that basis, the petition stood rejected under Order 7, Rule 11(a) of the Code of Civil Procedure, 1908.

5. Petitioners have placed on record a copy of the DNA Test report dated 18.12.2021, which specifically records petitioner No.1 as the father of the minor child.

6. It is stated in the petition that the petitioners are residing together with the minor child and that the material placed on record along with the petition, including the DNA Test report, sufficiently shows that the petitioners are indeed the biological parents of the minor child. On this basis, the petitioners claim that they are fit to be appointed as guardians of the minor child.

7. It is also brought to the notice of this Court that the petitioners and the minor child are facing practical difficulties in the peculiar facts and circumstances of the present case, inter alia, because the birth certificate of the minor child records petitioner No.2 as the mother and the respondent as the father, although petitioner No.1 is the biological father of the minor child.

8. Learned counsel for the petitioners has also referred to a ‘no objection affidavit’ dated 21.09.2022 submitted by the respondent in the present petition. This was pursuant to notice being served on the respondent. In the said affidavit, the respondent has specifically stated that he has no objection to the petitioners being declared as the natural and legal guardians of the minor child. He has further stated that he gave sole custody of the minor child willfully to petitioner No.2.

9. Learned counsel for the petitioners has fairly brought to the notice of this Court the position of law in respect of the rights available to a child, who is born outside marriage, as in the present case and is unfortunately referred to as an illegitimate child. This Court is of the opinion that for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child.

10. Learned counsel for the petitioners referred to the Commentaries on Muslim Law. In the Commentary on Muslim Law authored by Manzar Saeed in the Second Edition 2015, it is stated that nasab