A woman can't be denied the custody of her minor child on the ground that she has entered a new relationship without securing a divorce, the Allahabad High Court has held. The court gave the decision disposing of a habeas corpus petition last month. Justice JJ Munir observed, "The fact that the mother has walked away from her husband's home without securing a divorce and entered into a new relationship with another person, which she 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."
The court further observed, "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." In the petition, Ram Kumar Gupta had stated that due to his wife Sanyogita's second marriage without obtaining a divorce, she has lost her right over their son Anmol's custody.
According to the petitioner, the minor's life in the stranger's home is at risk. It is the minor's welfare that he may be placed in his father's custody, who is his natural guardian, in preference to the mother, who has walked out on her lawfully wedded husband without a divorce, and staying in a live-in relationship with a stranger, the plea said.
During the court proceedings, Sanyogita indicated that Gupta is an unkind father. Further, she was treated with cruelty by him and that is why she walked out on him. On this, the court said this is its concern to determine whether the minor would be safe and his welfare ensured in his mother's new home. After interacting with Sanyogita and her minor child Anmol, the court said, "The way the minor's mother has detailed her circumstances in new home, this court feels that the minor, for the present, is well adapted into his mother's new family."
"So far, as 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.
However, the court ensured the visitation rights of the father, saying that the rights of the minor to his father's company have to be ensured at all costs. The court directed that Sanyogita would be obliged to take the minor to his father's home at Kanpur once in two months, on any Sunday of the month.
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