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The Allahabad High Court has recently held that ‘a woman can’t be denied the custody of her minor child, on the ground that she has entered a new relationship without securing a divorce’.

The bench headed by Justice JJ Munir made the above observations while disposing of a habeas corpus petition and stated: “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, maybe 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.”

Background of the Case

The issue before the court was a petition filed by one Ram Kumar Gupta who stated that due to his wife Sanyogita’s second marriage without obtaining a divorce, she has lost her right over their son Anmol’s custody. He further stated that the minor’s life in the stranger’s home is at risk.

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 staying in a live-in relationship with a stranger, the plea stated.

On the other hand, the mother of the minor child Sanyogita indicated that Gupta is an unkind father and that she was herself treated with cruelty by him because of which she choose to walk away from him.

After hearing both the parties, the court observed that “Depriving the minor child of his mother’s company might have an adverse impact on his overall development. This in turn would derogate from the minor’s welfare.”

Further after interacting with Sanyogita and her minor child Anmol, the court asserted that “The way the minor’s mother has detailed her circumstances in the new home, this court feels that the minor, for the present, is well adapted into his mother’s new family.”

“So far, an 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,” added the court.

Meanwhile, the court also ensured visitation rights to the father while citing that the rights of the minor to his father’s company have to be ensured at all costs.


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