The Allahabad High Court recently found that the fact that the mother is allegedly starting a new relationship without divorcing her husband may be something that the law and society disapprove of, but that in itself she wouldn’t Custody of their minor child.

Justice Bank JJ Munir stated that “the minor’s withdrawal from his mother’s society could have a negative impact on his overall development. This in turn would be against the minor’s welfare.”

The matter before the court

Ram Kumar Gupta (father) filed a habeas corpus petition on behalf of his son, Anmol Shivhare, complaining that he is in the unlawful custody of Sanyogita (the minor’s mother and Ram Kumar Gupta’s wife).

Gupta (father) prayed that the minor would be brought to justice and entrusted to him in order to release the minor from the mother’s (sanyogita) custody.

Ram Kumar Gupta (father) and Sanyogita (mother) were married on December 8, 2009 according to Hindu rites in Kanpur Nagar and Anmol Shivhare (the minor in question) was born on August 7, 2015.

As claimed by Gupta (the father of the minor in question) on October 3, 2019, Sanyogita (the mother of the minor in question) went somewhere and took the minor son in question, Anmol, with her.

On October 4th, 2019, Gupta submitted an initial information report to the Sector 37 police station in Gurugram. It was registered as Section Crime No. 295 of 2019 under Section 346 IPC

Sanyogita’s testimony was recorded under Section 161 Cr.PC and thereafter under Section 164 Cr.PC, in which she said that she married a Balram Chaudhary and also presented a marriage certificate dated May 22, 2018.

However, Gupta claimed that Sanyogita’s marriage to Balram was null as it was a second marriage during her husband’s lifetime and she lost her right to Anmol’s custody.

The child’s custody of the minor at Sanyogita in a stranger’s home was declared illegal by Gupta. On the other hand, Sanyogita claimed in court that Gupta was an unkind father.

She also claimed that she was treated with cruelty by Gupta and that is why she attacked him.

Comments from the Court

The Court found that the principle that the child’s best interests are paramount cannot be taken into account and took into account general circumstances.

“Given the general behavior of the minor towards his parents, this court is of the opinion that at this age if the minor is deprived of his mother’s society, it could have negative effects on his general development.”

The Court also found that although the minor is over five years old, he is still a tender age and that he may not be a toddler to be weaned by his mother, but the mother alone needs the tender care can worry.

What is important is that the Court said:

“The fact that the mother left her husband’s house without divorce and entered into a new relationship with Balram Chaudhary representing her and supposedly considering a second marriage could be something the law and the Disapprove of society, but in itself it is something that is not so depraved or immoral as to deprive the mother of her special place in the minor’s life.

Taking into account the manner in which Sanyogita (the mother) presented her circumstances at Balram’s house, the court found that the minor was “well adapted to his mother’s new family.”

According to that court, Balram, Sanyogita, and the two children, who are half-brothers, are “a family with reasonably close ties that can be relied on to ensure the minor’s welfare.”

On the other hand, the court found that Gupta was busy earning a living and that at home “there may not be anyone who at this young age is only half as capable of caring for the minor as his birth mother”.

“As far as the dominant and essential part of the minor’s custody and care is concerned, this Tribunal believes that these would be better in the hands of the mother than the father,” the court observed.

Finally, the court also granted the father the right of visit, taking into account the more subtle aspects of human behavior.

Sanyogita was instructed to take the minor to his father’s house in Kanpur on every Sunday of the month every two months.

In 2018 the Supreme Court ruled that a man who has remarried and lives with the child of the second woman cannot be deprived of custody of his child.

The bank, made up of Justice Kurian Joseph and Justice Sanjay Kishan Kaul, was considering a custody case between a couple of doctors who both worked for the CRPF.

In an interesting ruling, the Telangana Supreme Court recently found that “overnight custody” should be promoted whenever possible.

“A parent cannot be a guest in their child’s life. If visiting rights are only granted for limited hours, it may not be enough for the child to have a comfortable time with the father or mother, whoever the case,” noted the Telangana High Court.

In an important ruling, the Karnataka Supreme Court recently referred to the principle of common parenting, which is defined as having the common authority of parents as well as the common responsibility of parents in deciding on custody of a minor child in a matter Everyday life includes daily education and the well-being of the children.

The Bench division consisting of Justice BV Nagarathna and Justice NS Sanjay Gowda observed:

“We need to remember that a child needs both the mother and the father to raise the child together, which would holistically affect the child’s overall growth.”

Case Title – Anmol Shivhare (Minor) v State Of UP and 4 others [Habeas Corpus Writ Petition No. – 61 of 2020]

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