In the case of A. Aniswar, through his mother v U. O. I, the Madras High Court, have asked the Bureau of Immigration to consider the application to register a minor child as “Overseas Citizen of India” and issue certificate without insisting upon custody order of guardianship in the hands of his mother from court of law, who had obtained divorce from his father. A. Aniswar, through his mother approached the High Court when the immigration department insisted on production of custody papers from court, granting custody in favour of his mother. In fact, his mother had got an ex-parte decree which his father did not challenge and hence had become final. But the order was silent on custody of child issue. Referring to Apex Court judgement in Jijabai Vithalrao Gajre vs. Pathan khan and ABC vs. State [NCT OF Delhi], the Court said that the said judgement has recognised the role played by the mother as the natural guardian of the minor.
Justice M. Sathyanarayanan further observed “In the case on hand, the facts placed before this Court would disclose that even in the experts order passed on 22.02.2007 made in F.C.O.P.No.2923 of 2006, the fact that the petitioner had born to the deponent of the affidavit and her husband on 10.02.2000 and her return along with the petitioner to Trichy during August 2002 and her husband’s continue stay at Malaysia, have been narrated. As already pointed out the respondent / husband of the deponent of the affidavit in the above said Original Petition, did not take steps to set aside the experts order and therefore, it became final. In the light of the above facts, it is not in serious dispute that the custody of the petitioner remains with the deponent of the affidavit. In the light of the above factual circumstances coupled with the above cited legal position, there cannot be any impediment on the part of the second respondent to consider the application submitted by the petitioner for getting OCI Card.”
This decision of HC fairly paves the path of development of legal jurisprudence in favour ofmaternal guardianship which is rather prejudiced in earlier times.
By – Nikita Goel