Child Visitation Rights Of Muslim Man Diminishes On Espousing Second Wife During Subsistence Of First Marriage: Karnataka High Court

Justice Krishna S Dixit said,

"Now it has been well settled that the act of a Muslim in espousing a second wife during the subsistence of first marriage per se amounts to cruelty and that not only the first wife can stay away from the matrimonial home but seek divorce too on that ground."

Further it said that,

"If the wife can stay away from the matrimonial home on the ground of second marriage, it goes without saying that she can normally retain the exclusive custody of her minor child."

It added,

"This Court is of a considered view that even the visitation rights of such a father will diminish to a great extent, subject to all just exceptions."

The Court explained that an argument to the contrary would permit an unscrupulous husband who contracts another marriage, to pressurize his first wife to continue in the matrimonial home, eventually retaining the child in his exclusive custody.

The petitioner Mohammed Mushtaq G K had approached the court challenging the order dated 17.12.2018, whereby the Family Court Judge, Bangalore, rejected his application for custody of the child and accorded limited visitation rights of his first child.

The petitioner sought exclusive custody of the child, contending that he is in a better position to take care of his child from a financial perspective and provide him the best upbringing education and a complete family environment. Moreover, the respondent has neglected her duties towards the minor child and the petitioner. The first wife had opposed the plea.

Court findings:

The court on going through the facts of the case said, "In a society like ours, the disputes relating to child custody by their very nature are complex, regardless of religion or faith to which the parties belong; at times they become complicated when the husband contracts another marriage taking shelter under the umbrella of personal law, i.e. Mohammedan Law or the like; the complication escalates to the higher level when a child is born from the second marriage, and the husband starts residing with the second family to the exclusion of the first wife who is bringing up the child all alone."

It observed, "The contention that he (petitioner) is financially well placed and educationally superior does not make much difference to the custody issue, when all necessities of the child are duly met by the respondent mother."

The court refusing to interfere with the family court order said, "Learned Judge of the court below in his accumulated wisdom & discretion has granted visitation rights to the petitioner; in such circumstances a writ court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 (petition quoting Article 226 being irrelevant) cannot undertake a deeper examination of the matter...If the custody of child is given to the petitioner husband as claimed, the respondent-wife would be all alone whereas the petitioner will have two children at his hands along with 2nd wife, as well, this offends the very sense of justice, to say the least."

Refusing to accept the affidavit filed by the second wife of the petitioner stating that she would take care of the child the court said, "Experience working on reason tells that ordinarily step-mothers would not be able to take care of and show affection to the children which their biological mothers instinctively would show."

The court dismissed the petition and imposed a cost of Rs.50,000 on the petitioner which is to be paid to the wife within one month. Failing which, all his visitation rights granted by the impugned order stand suspended.

Case Title: Mohammed Mushtaq G K v.  Ayesha Banu

Case No: Writ Petition No.16885 of 2021

Date Of Order: 21st Day of December, 2021

Appearance: Advocate Mallangouda H for Petitioner; Advocate Nayeem Pasha S for Respondent.

Click Here To Read/Download Order