Del HC | Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-father against the judgment of the Family Court whereby his application under Section 25 of the Guardians and Wards Act, 1890 seeking custody of his minor son was rejected.

The parties were married as per Muslim customs and rites in Delhi. A son was born to them. The respondent-mother gave birth to the child at her paternal home in Hyderabad. In less than 5 months from the date of the birth of their son, the appellant gave talaq to the respondent. Subsequently, the respondent remarried and was now living in Dubai with her second husband and her minor son born from the wedlock with the appellant. The appellant filed the application under Section 25 for custody of the child which was rejected by the Family Court as aforesaid.  Aggrieved, the appellant-father filed the instant appeal.

N.U. Ahmed, Advocate appearing for the appellant, submitted that the respondent has violated the orders of the Family Court, given a false affidavit to the passport authorities and had taken the child away to Dubai which goes to prove that she is not fit to retain his custody and the welfare of the child would be best served if his custody is handed over to the appellant. The second leg of his arguments was that the respondent has got remarried and under the said circumstances, the interest of the child is bound to suffer adversely.

At the outset, relying on Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42, the High Court reiterated that when the court is confronted with a question relating to the custody of a minor child, the guiding factor cannot be the legal rights of the warring parties. The sole and pre-eminent criteria that ought to weigh with the court is what would best serve the interest and welfare of the minor.

The High Court noted that after the respondent got married, she left with the child for Dubai, where her husband is working in a multinational company. This goes to show that the respondent has sufficient funds and economic resources to attend to all the needs of the child either for purposes of his schooling or for bringing him up comfortably. In Court’s opinion:

“The respondent’s remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. At the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.”

It was then noted that the respondent was sent back to her paternal home in Hyderabad when she was pregnant. The child was delivered by her in Hyderabad on 11-2-2011. The appellant did not go to meet the respondent and see the newborn till the mother and child went back to Delhi on 30-3-2011. Within 1 year therefrom, the respondent and the child who was about 1 year old, returned to her paternal home on 16-3-2012. In less than 3 months, the appellant gave her talaq. It was also an admitted position that on the respondent’s complaint an FIR was registered against the appellant under Sections 498A/406/34 IPC read with Sections 3 and 4 of the Dowry Prohibition Act and the appellant could not manage to get anticipatory bail right up to the Supreme Court. A chargesheet was filed against him and the criminal case is pending.

The appellant and the child had parted company when the child was about 16 months old. The minor was about 1 year old when his mother, the respondent, had returned to her paternal home at Hyderabad. In such a situation, as per the Court, the child who would be 9 years old by now, would not be in a position to recognise the appellant as his father having remained with his mother for 8 long years. The appellant would be no more than a stranger to the child even though he is his father. In such circumstances, the Court was of the opinion that the welfare of the child would be better served if his custody remains with the mother.

Moving to the next point, the Court stated that appellant’s contention that the respondent having violated the orders of the Court, itself was sufficient reason for the custody of the child be taken back from her and handed over to the appellant, is untenable. The Court held that if the appellant was aggrieved by the conduct of the respondent, he is well entitled to take his legal remedies against her but that would not translate into an order in his favour, granting him permanent custody of the child.

Before parting with the matter, the Court also stated that the guardianship petition filed by the appellant appeared to be more a tool to even out a score with the respondent, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being.

In such view of the matter, the High Court upheld the order of the Family Court and dismissed the appeal, [Faisal Khan v. Humera,  2020 SCC OnLine Del 572 , decided on 1-5-2020]

One comment

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    I am extremely sorry to say in the child custody cases children have been not allowed to their own fathers and courts are allowing women / mothers to file false affidavits and the courts are allowing them to do it. And no action has been taken at all.

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