The Punjab and Haryana High Court recently observed that even if a woman is in an extramarital relationship, one cannot conclude that she is not a good mother to deny her the custody of her child.
Justice Anupinder Singh Grewal said that it is fairly common to cast such aspersions on the moral character of a woman in a patriarchal society.
The judgment dated May 10, 2021 stated,
It would be worthwhile to note that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation.Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child.
The mother was a resident of Australia with a steady stream of income and welfare support from the Australian government. The child’s father (petitioner’s husband) was an Australian citizen who was residing in India.
A divorce petition was earlier filed by the petitioner before an Australian Court in 2019. However, it was withdrawn the same year after the petitioner’s husband allegedly promised improve his behaviour.
In January 2020, the couple arrived in India. Following this, the petitioner claimed that her husband took away the child while the petitioner was visiting her parental home. The petitioner’s counsel submitted that the petitioner returned to Australia fearing for her safety after her husband issued threats against her.
The child remained in India with the husband, leading the petitioner to move the High Court for relief. Meanwhile, as per the wife, orders were issued by Australian courts directing the husband to return the child to the petitioner in Australia and for the arrest of the husband.
Allegations By Husband
As per the husband, his wife was involved in a relationship with his brother-in-law (sister’s husband). This relationship led to a marital discord between the parties. The husband was not aware of this relationship earlier and had called his wife to Australia initially on a tourist visa for 3 months and, thereafter, on permanent residency documents. Husband did not want the matrimonial life of his sister to be destroyed and therefore, persuaded his wife to withdraw her divorce petition as he wanted to sort out the matter.
Respondent husband further contended that the minor child was residing with father (self) and grandparents in a cordial family environment for almost a year and the change of the custody at this stage would not be in the interest of the child, especially when the petitioner wife is living alone and thus, would not be in a position to take care of the child. Husband also alleged that his wife had submitted her qualification as graduate which was incorrect.
Punjab & Haryana High Court
Advocating custody to only one parent, the Judge further observed that although the Court had mooted reconciliation between the parties, it was not suggesting that a child raised by a single parent would be at a disadvantage. The court said,
Modern times are replete with the instances of children raised by the single parent having grown as responsible adults contributing to nation building in various fields.
Adding further the court said,
The petitioner, who is the mother, is seeking the custody of four year old girl child. The child would require love, care and affection of the mother for her development in the formative years. The support and guidance of the mother would also be imperative during adolescence. The mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956.
…. in the aforenoted facts and circumstances, especially when there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia, I am of the considered view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.
The Court made the observations while granting custody over a four year old child to her mother who was accused by her estranged husband of having an extramarital affair with his brother in law. Notably, the Court found that the husband had not substantiated these allegations, leading the Judge view them as ‘bald assertions’ not relevant to adjudicate on the custody dispute.
Respect Overseas Law
In the course of its judgment, the High Court observed that the principle of comity should be followed to show due respect to Courts abroad. However, a foreign judgement would not be the only factor for consideration. The Court emphasised that the paramount consideration would continue to be the interest and welfare of the child.
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