Woman Entering Into New Relationship Without Securing Divorce Wouldn't Deprive Her Of Custody Of Minor Child: Allahabad HC

The Bench of Justice J. J. Munir observed that "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."

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 be 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 07^th August 2015.

As alleged by Gupta (the Father of the minor in question) on 03^rd 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 22^nd 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 alleged that she was treated with cruelty by Gupta and that is why she walked out on him.

Court's Observations

Noting 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 concluded,

"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 further 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.

Importantly, the Court said,

"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 Sanyogita (the mother) detailed her circumstances 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 reasonably good bonds, that can be trusted to secure the minor's welfare."

On the other hand, the Court noted that Gupta 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."

"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", remarked the Court.

Lastly, the Court also 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.

In the year 2018, the Supreme Court had held that merely because a man remarried and is residing with second wife's child, he could not be deprived of the custody of his child.

The bench comprising of Justice Kurian Joseph and Justice Sanjay Kishan Kaul were considering a child custody case between a doctor couple, both serving in CRPF.

[Update: In the matter before the SC, the couple, who got two kids, parted after they obtained divorce by mutual consent in December 2016. As per the decree, it was agreed that custody 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 ruling, 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 granted for limited hours, it may not be sufficient for the child to have comfortable 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 custody of a minor child in a matter, the Karnataka High Court recently referred to the principle of Shared Parenting which is defined to include shared parenting authority as well as shared parenting responsibility 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 observed,

"It is necessary to remind ourselves that a child requires both, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child."

Case title - Anmol Shivhare (Minor) v. State Of U.P. And 4 Others [Habeas Corpus Writ Petition No. - 61 of 2020]

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