Punjab and Haryana High Court noted that a woman’s extra-marital relationship is not a ground to deny the custody of her child and it cannot lead to the conclusion that she will be a bad mother.
While allowing the habeas corpus petition of the petitioner (mother), the court noted that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman, and more often than not these allegations are made without any basis.
“Aside of the bald assertion in the petition, no supporting material has been brought before this court. 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,” Justice Anupinder Singh Grewal said.
The court further added, “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 mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956.”
The court was hearing a habeas corpus petition filed by a woman who was seeking the child custody of her four and half year old daughter.
The petitioner told the court she got married in 2013 to a Ludhiana native who was an Australian citizen. She later joined her husband in Australia and had a daughter in June 2017.
They visited India in January 2020 and her husband allegedly took away the child on February 2, 2020 while she was at her parental home. The husband sought child custody citing the reason that she is in an extra-marital relationship with a relative.
Legislations Governing Child Custody under Different Laws in India:
Under Hindu Law — Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954, Guardians and Wards Act, 1890, and Hindu Minority and Guardianship Act 1956.
Under Muslim Law — Right of Hizanat
Under Christian Law — Divorce Act, 1869
Under Parsi Law — Guardians and Wards Act, 1890
Types of Child Custody
Legal Custody — where a parent takes every decision for the child likewise education, medical treatment, etc. Usually granted to both the parents.
Physical Custody — where the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent.
Joint Custody — where a child lives with both parents on rotational basis and duration.
Third-Party Custody — where the court finds both the parents incapable of raising the child, a guardian or third person (grandparents) gets the custody.
Factors Considered to Grant Child Custody
*The paramount consideration is the welfare and interest of the child and not the rights of the parents
- Ethical upbringing of the child
- Safe-keeping of the child
- Good education to be imparted
- Economic well-being of the guardian
Priority of Claims for Child Custody
- The custody of a child below five years is generally given to the mother except when the mother is mentally unstable.
- A child’s views are considered who is above the age of nine.
- Custody of Older boys generally given to father and mother got the custody of older girls.