The Allahabad High Court recently observed that the fact that the mother enters into a new relationship allegedly without obtaining a divorce from her husband, maybe something that the law and the society frown upon, but, this in itself, wouldn’t deprive her of the custody of her minor child.
The Bench of Justice J. J. Munir observed that “depriving the minor of his mother’s company, might hurt his overall development. This, in-turn would derogate from the minor’s welfare.”
The matter before the Court A habeas corpus writ petition was filed by Ram Kumar Gupta (Father) in the name of his son Anmol Shivhare, complaining he is in the unlawful custody of Sanyogita (the minor’s mother and Ram Kumar Gupta’s Wife).
Gupta (Father) prayed that the minor is ordered to be produced before the Court and that his custody be entrusted to him, relieving the minor from the mother’s (Sanyogita) custody.
Ram Kumar Gupta (Father) and Sanyogita (Mother) were married according to Hindu rites on 8th December 2009 at Kanpur Nagar, and Anmol Shivhare (the minor in question) was born on 07th August 2015. As alleged by Gupta (the Father of the minor in question) on 03rd October 2019, Sanyogita (the Mother of the minor in question) went away somewhere taking along the minor son in question, Anmol.
Gupta lodged a first information report on 04.10.2019 at Police Station Sector 37, Gurugram. It was registered as Case Crime No. 295 of 2019, under Section 346 I.P.C.
Sanyogita’s statement was recorded under Section 161 Cr. P.C and thereafter under Section 164 Cr.P.C. wherein she said that she married one Balram Chaudhary and also produced a marriage certificate dated 22nd May 2018.
Gupta, however, alleged that Sanyogita’s marriage to Balram is a nullity because it is a second marriage in the lifetime of her husband and due to this, she has lost her right to Anmol’s custody.
The minor’s custody with Sanyogita, in the home of a stranger, has been dubbed as unlawful by Gupta; while on the other hand, before the Court, Sanyogita alleged that Gupta has been an unkind father.
She also declared that she was behaved toward cruelty by Gupta and that is why she gave up on him.
Noting that the principle about the welfare of the child being of paramount appreciation cannot be given a go by and considering the overall situations,
the Court concluded,
“Considering the overall attitude or behavior of the minor towards his parents, this Court feels that at this age, denying the minor of his mother’s company might hurt his overall development.”
Importantly, the Court said,
“The fact that the mother has stepped away from her husband’s home without conserving a divorce and entered into a new relationship with Balram Chaudhary, which she exemplifies and believes to be a second marriage, maybe something that the law and the society frown upon, but, in itself, is something not so depraved or unethical as to deprive the mother of her special place in the minor’s life.”
Taking into account the way Sanyogita (the mother) detailed her occurrences in Balram’s home, the Court found that the minor was “well adapted into his mother’s new family.”
In the opinion of this Court, Balram, Sanyogita, and the two children, who are half-brothers, “are a family with relatively good bonds that can be trusted to secure the minor’s welfare.”
On the distinct hand, the Court noted that Gupta is immersed in earning his livelihood, and back home “there may not be anyone, even half as able to take care of the minor at this young age as his natural mother.”
“So far as the dominant and considerable part of the minor’s custody and care are concerned, this Court is of opinion that these would be better protected in the mother’s hands, in comparison to the father”, remarked the Court.
Lastly, the Court also ensured visitation rights to the father relevance in mind the subtler aspects of human behavior.
Sanyogita has been directed to take the minor to his father’s home at Kanpur once in two months, on any Sunday of the month.
Update]In the year 2018, the Supreme Court had held that barely because a man remarried and is dwelling with his second wife’s child, he could not be coerced of the custody of his child.
The bench comprising Justice Kurian Joseph and Justice Sanjay Kishan Kaul was considering a child custody case between a doctor couple, both serving in CRPF.
In the consequence before the SC, the pair, who got two kids, divided after they attained divorce by mutual consent in December 2016. As per the declaration, it was agreed that possession of both children would be with the husband. It was also agreed that the husband would provide for education, medicines, and marriage of the son while the wife would do the likewise for the daughter.
In an interesting verdict, the Telangana High Court recently observed that “overnight custody” must be encouraged wherever possible.
“A parent cannot be a guest in the life of their child. If visitation rights only are consented for limited hours, it may not be sufficient for the child to have a prosperous time with the father or mother, whoever may be the case,” remarked the Telangana High Court.
In an important ruling, while deciding the question of possession of a minor child in a matter, the Karnataka High Court recently referred to the principle of Shared Parenting which is interpreted to include shared parenting authority as well as shared parenting duty in the day-to-day upbringing and the welfare of the children.
The Division Bench Comprising Justice B. V. Nagarathna and Justice N. S. Sanjay Gowda identified,
“It is necessary to remind ourselves that a child requires both, the mother and the father, in together bringing up the child which would have a holistic consequence on the overall development of the child.”