CRUX:
Unknown v. State of Punjab &Ors CRWP No.8319 of 2020 -In the present case, the Punjab and Haryana High Court observed that even if a woman is in an extramarital relationship, one cannot conclude that she is not a good mother to deny her the custody of her child.
JUDGMENT SUMMARY:
Unknown v. State of Punjab &Ors
DATE OF JUDGMENT:
10/05/2021
JUDGE:
Hon'ble Justice Anupinder Singh Grewal
PARTIES:
Unknown (Petitioner)
State of Punjab &Ors(Respondent)
SUMMARY
In the present case, the Punjab and Haryana High Court observed that even if a woman is in an extramarital relationship, one cannot conclude that she is not a good mother to deny her the custody of her child.
Brief
In the present case the Punjab and Haryana High Court observed that even if a woman is in an extramarital relationship, one cannot conclude that she is not a good mother to deny her the custody of her child.
Background Facts
The mother had requested a writ of habeas corpus from the Punjab and Haryana High Court in order to regain custody of her minor daughter.
The mother was an Australian resident with a consistent source of income and welfare assistance from the Australian government, according to the Court. The father of the kid (the petitioner's husband) was an Australian citizen who lived in India.
In order to regain custody of her minor daughter, the mother sought a writ of habeas corpus from the Punjab and Haryana High Court.
The child stayed in India with the spouse, prompting the petitioner to seek redress from the High Court. Meanwhile, Australian courts issued orders asking the husband to return the child to the petitioner in Australia and ordering his arrest.
Court’s Observation and Decision
Justice Anupinder Singh Grewal made the remarks, adding that it is very usual in patriarchal societies to cast doubt on women's moral integrity.
In any patriarchal society, he stated, it is customary to throw doubt on a woman's moral character. And, the majority of the time, such doubts are unfounded. Even if we think that a woman is or has been in an adulterous relationship, we cannot deduce that she would not make a decent mother or deny her custody of the kid.
In addition, the court had a progressive stance on solo parenting, particularly by mothers.
The judge stated that while the court has encouraged the couple to reconcile, it does not imply that a kid raised by a single parent would be at a disadvantage.
The court goes on to say that modern times are littered with examples of children raised by a single parent growing up to be responsible people who contribute to nation development in a variety of ways.
The mother of a four-year-old kid was granted custody by the court after her husband accused her of having an extramarital affair.
Cases on Child Custody
Roxann Sharmav. Arun Sharma Civil Appeal No. 1966 Of 2015
A two-judge bench of the Supreme Court laid down various propositions of law while awarding interim custody of a child suffering in parents in matrimonial disputes, visitation rights, and guardianship to the mother in a remarkable judgement dealing with interim custody of a child suffering in parents in matrimonial disputes, visitation rights, and guardianship. The panel, through Justice Vikramjit Sen, makes several pointed observations and examines various definitions of a "guardian. "The problem is examined in light of the provisions of the Hindu Minority & Guardianship Act, 1956, and the Guardian & Wards Act, 1890. The Supreme Court has declared that a little kid under the age of five years old should be allowed to remain with the mother in a custody dispute between estranged parents, adding that the youngster should not be treated as a "chattel" in such circumstances. According to the Hindu Minority and Guardianship (HMG) Act, a father can be the guardian of his minor child's property but not his person if the child is under the age of five.
The Court stated that when a Court is presented with opposing custody claims, there are no parental rights that must be enforced; the kid is not a chattel or a ball that is tossed back and forth between the parents. The welfare of the child is the sole thing that is taken into account.
Parliament correctly believes that custody of a child under the age of five years should generally be with the mother, and that this expectation can only be broken for compelling reasons. On the grounds that the mother had not proven her eligibility to be allowed interim custody of the Infant, the supreme court vacated a Bombay high court judgement that gave custody of a two-year-old child to the father.
The HMG Act stipulates that custody of an infant or a young child should be given to the mother unless the father discloses compelling facts that indicate and foreshadow the welfare and interest of the child being undermined or harmed if the mother retains possession. As a result, Section 6(a) of the Act protects the father's right to be the guardian of the minor kid's property but not of his person when the child is under the age of five.It distinguishes interim custody from guardianship and says that custody should be awarded to the mother as long as the kid is under the age of five years. According to the court, the Act placed the burden of proof on the father to show that placing the infant child in the custody of the mother was not in the best interests of the child, and the HC order effectively nullifies the spirit of the law. The Act stipulates that a kid under the age of five years should be in the custody of his or her mother in most cases. It is impossible to over-emphasize the word 'typically.' It establishes a presumption in favour of the mother, however rebuttable.
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42
Children are not simple chattels or toys for their parents, according to the court. The absolute right of parents over their children's destinies and lives must yield to considerations of their welfare as human beings in today's changed social conditions so that they can grow up in a normal balanced manner to be useful members of society, and the guardian court, in the event of a dispute between the mother and the father, is expected to strike a just and proper balance.
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
The court stated that the Guardians and Wards Act of 1890 has as its object and purpose not only physical custody of minors, but also due protection of the ward's health, maintenance, and education rights. Of course, the right of the father as natural guardian must be considered when examining the welfare of minors, but if the father's custody cannot enhance the children's welfare, he may be denied such guardianship.
Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
The court must issue a custody order for minor children under the terms of the Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956, with the minor's best interests and welfare at the forefront. It is not the better right of either parent that would necessitate adjudication for determining custody eligibility. The child's desire, as well as the availability of a conducive and acceptable environment for good raising, as well as the ability and means of the parent in question to care for the child, are some of the important considerations that the court must consider while deciding on custody of a minor.
Conclusion
In the present case the court observed that even if a woman is in an extramarital relationship, it is impossible to determine that she is a bad mother and deny her child custody. The purpose of child custody is to provide two happy homes with one parent each, rather than one happy home with two parents, and daily access to the child through video-calls is a lovely concept that needs to be realised in these days of matrimonial strife and separation to ensure that the citizens of tomorrow are given the best today for their balanced growth and development.
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