Report No. 133

Later Bombay cases

(3) In a later Bombay case,1 the father of a boy aged about 2 years applied for the custody of the child under section 25 of the Guardians and Wards Act, 1890. The father had married a second wife and his application was allowed by the trial court but in appeal, the High Court dismissed it. The High Court held that the paramount consideration should be the interest of the child rather than the rights of the parents and if the mother is a suitable person to take charge of the child, then it is quite impossible to find an adequate substitute for her for the custody of a child of tender years. Besides this, a step-mother is not likely to give the child the required attention, love and sympathy.

(4) In another Bombay case (of 1959)2 it was the mother who applied under section 25 of the Act of 1890 for the custody of her minor daughter, aged about 21/2 years. The trial court applied the welfare principle rather narrowly and dismissed the application. It was left to the High Court, on appeal, to grant the mother's application. The High Court directed the father to hand over the girl to the mother.

It took note of the fact that the father (after the divorce) had remarried, and that, although the father was living with a large family of the prior generation, there was a probability of the child being neglected by the step-mother and by the family. There was nothing to suggest that the mother was unfit to have the custody of the child. Besides this, the mother had stated on oath that she had no intention of remarrying. In these circumstances, it was preferable to give the custody to the mother.

1. Saraswati Bai v. Shripad Vasanji Ved, AIR 1941 Born 103.

2. Munnibai v. Dhanush, AIR 1959 Born 243.