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‘Can’t deny child’s custody to mother living with another person sans divorce’: Allahabad HC

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The Allahabad High Court has held that the fact that a woman entered into a new relationship without securing divorce would not deprive her of off custody of her minor child.

Disposing of a petition filed by one Ram Kumar Gupta in the name of his son Anmol Shivhare, 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 that “depriving the minor of his mother’s company might have an adverse impact on his overall development.”

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Petitioner Gupta said that Sanyogita’s marriage to another person is 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. Further, the minor’s custody with Sanyogita, in the home of a stranger, has been dubbed as unlawful. According to him, the minor’s life in the stranger’s home is at risk. The minor has a bleak future, he said.

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 is staying in a live-in relationship with a stranger, said the petition.

During the court proceedings, mother Sanyogita indicated that Gupta is an unkind father. Further, she said she was treated with cruelty by him and that is why she walked out on him.

On this, the court said that this is the court’s 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 son, 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 wife 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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