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Extramarital affair not ground to assume woman would be a bad mother or to deny child custody

Extramarital affair not ground to assume woman would be a bad mother or to deny child custody

Mandeep Kaur Vs State of Punjab and others

Punjab and Haryana HC


CRWP No. 8319 of 2020

About/from the judgment:

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, observed the High Court.

The Court added that it is fairly common to cast such aspersions on the moral character of a woman in a patriarchal society.

The judgment passed last month stated,

"It would be worthwhile to note that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child."

The Court has also taken a progressive view of single parenthood, especially by a mother.

In this regard, the Judge observed that although the Court had mooted reconciliation between the parties, it was not suggesting that a child raised by a single parent would be at a disadvantage.

"Modern times are replete with the instances of children raised by the single parent having grown as responsible adults contributing to nation building in various fields", the Court said.

The Court made the observations while granting custody over a four year old child to her mother who was accused by her estranged husband of having an extramarital affair with his brother in law. Notably, the Court found that the husband had not substantiated these allegations, leading the Judge view them as bald assertions not relevant to adjudicate on the custody dispute.

The mother had moved the Punjab and Haryana High Court for the issuance of a writ of habeas corpus to secure custody over her minor daughter.

The Court noted that the mother was a resident of Australia with a steady stream of income and welfare support from the Australian government. The child's father (petitioner's husband) was an Australian citizen who was residing in India.

A divorce petition was earlier filed by the petitioner before an Australian Court in 2019. However, it was withdrawn the same year after the petitioner's husband is stated to have promised improve his behaviour.

In January 2020, the couple arrived in India. Following this, the petitioner claimed that her husband took away the child while the petitioner was visiting her parental home. The petitioner's counsel submitted that the petitioner returned to Australia fearing for her safety after her husband issued threats against her.

The child remained in India with the husband, leading the petitioner to move the High Court for relief. Meanwhile, orders were issued by Australian courts directing the husband to return the child to the petitioner in Australia and for the arrest of the husband, the High Court was told.

In the course of its judgment, the High Court observed that the principle of comity should be followed to show due respect to Courts abroad. However, a foreign judgement would not be the only factor for consideration. The Court emphasised that the paramount consideration would continue to be the interest and welfare of the child.

The Judge eventually allowed the petition, while also noting that the Hindu Minority and Guardianship Act, 1956 views the mother as the natural guardian of a child until s/he attains the age of 5 years.

"…. in the aforenoted facts and circumstances, especially when there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia, I am of the considered view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother", the Court held.

Read the Judgment


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