The Allahabad High Court in its December 9, 2020 observed that if a mother enters into a new relationship allegedly without obtaining divorce from her husband, the same may be something that the law and the society frown upon, but this in itself, would not deprive her of the custody of her minor child.
The Bench of Justice J. J. Munir that was hearing the matter noted,
Depriving the minor of his mother’s company, might have an adverse impact on his overall development. This, in-turn would derogate from the minor’s welfare.
Ram Kumar Gupta (father) and Sanyogita (mother) got married according to Hindu rites on December 8, 2009 at Kanpur Nagar and Anmol Shivhare (son) was born on August 7, 2015.
As per Gupta, his wife went away somewhere with their minor son on October 3, 2019. Subsequently, he lodged an FIR the next day at Sector 37 Police Station in Gurugram. The case was registered under Section 346 IPC.
Sanyogita’s statement was recorded under Section 161 Cr.P.C and thereafter under Section 164 Cr.P.C. wherein she confessed that she was now married to one Balram Chaudhary and also produced a marriage certificate dated May 22, 2018.
Gupta, however, alleged that Sanyogita’s marriage to Balram is null and void because it is a second marriage in the lifetime of her husband. Citing grounds of bigamy, the father also pleaded that the mother should lose her right to their minor son’s custody.
While the minor’s custody is with Sanyogita in the home of a stranger, on the other hand, Sanyogita alleged that Gupta had been an unkind father.
She also alleged that she was treated with cruelty by Gupta and that is why she walked out on him.
Petition By Father
A habeas corpus writ petition was filed by the father in the name of his minor son Anmol, alleging that he is in the unlawful custody of the mother, who was still Ram Kumar Gupta’s legally wedded wife.
Gupta prayed that the minor be ordered to be produced before the Court and that his custody be entrusted to him, relieving the minor from the mother’s custody.
Allahabad High Court
The court noted that the principle about the welfare of the child being of paramount consideration cannot be given a go by and considering the overall circumstances. The court said,
Considering the overall behaviour of the minor towards his parents, this Court feels that at this age, depriving the minor of his mother’s company, might have an adverse impact on his overall development.
The Court also said that the minor, though above the age of five years, is still a child of tender years and that he may not be an infant, who needs to be weaned away from his mother, but he still needs the tender care that the mother alone can provide.
The court remarked,
The fact that the mother has walked away from her husband’s home without securing a divorce and entered into a new relationship with Balram Chaudhary, which she represents and ostensibly believes to be a second marriage, may be something that the law and the society frown upon, but, in itself, is something not so depraved or immoral as to deprive the mother of her special place in the minor’s life.
Taking into account the way the mother detailed her circumstances in her second husband’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 reasonably good bonds, that can be trusted to secure the minor’s welfare.”
High Court’s Remarks On Father
On the other hand, the Court noted that the biological is engaged 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.”
The court said,
So far as the dominant and substantial part of the minor’s custody and care are concerned, this Court is of opinion that these would be better secured in the mother’s hands, in comparison to the father.
Court Allows Visitation Rights To Father
The Court ensured visitation rights to the father bearing in mind the subtler aspects of human behaviour.
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.