Delhi HC: Mother’s Love is not Less for Child Born out of Surrogacy or Adopted Child

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May 04, 2018

In a recent case involving custody and guardianship of minor child, the Two-Judge Bench of the Delhi High Court was confronted with the Respondent husband’s argument that as the child was born out of surrogacy, Section 6(a) of the Hindu Minority and Guardianship Act, 1956 could not be invoked in the case. Here it would be relevant to mention that under Section 6(a) of Hindu Minority and Guardianship Act, 1956 the law presumes that it is in the best interest of the child – who is under five years of age, that the child should remain in the custody of the mother.

In this case, the Petitioner wife sought direction to the respondent husband to produce her minor daughter in the Court and to set her at liberty into the custody of the petitioner. The petitioner wife submitted that custody of a minor child, who has not completed the age of five years, should ordinarily be with the mother, as provided under Section 6(a) of the Hindu Minority and Guardianship Act, 1956.

Delhi High Court’s Observation

The Delhi High Court in the case refused the arguments advanced by the respondent husband in the case and made some essential observations pertaining to custody and guardianship of a minor child:

• That the minor child is only one year old, and in terms of Section 6(a) of the HMG Act the custody of the minor child ordinarily should be with the mother in the best interest of the child.
• That there is no denying the fact that respondent is also a guardian of the minor child. However, the legislative intent in Section 6 (a) of HMG Act is clear, that the “custody” of a child under the age of 5 years shall ordinarily be with the mother-guardian, in preference to the father-guardian.
• That though the child in question was born out of surrogacy, the Petitioner is nevertheless the biological mother of the child, and respondent is the biological father of the child. Thus, it is only natural that the petitioner and respondent– and their respective family members, hold love and affection in their hearts for the minor child.
• That the submission of respondent that the petitioner though being the biological mother of the minor child, would have any less love or affection for her since the minor child was born out of surrogacy is not acceptable.
• That even in respect of an adopted child, the parents, by and large, express and feel the same sense of love and affection with equal intensity as they would feel in respect of their naturally born child. The submission of the respondent devalues the great qualities of love and bonding that are experienced not only by human beings, but all animal species.
• That the professional and social obligations and activities of the mother need not necessarily have an adverse impact on the upbringing and safety of the minor child. In today’s day and age, women are actively pursuing their professions and avocations. They are also socializing as their peers, friends, family and colleagues. That does not mean that they are necessarily failing in performance of their maternal obligations. In fact, working women are, by and large, having to put in extra time and effort to keep both ends up, and they are doing it successfully.