Extramarital relationship no ground to deny child’s custody to mother, says HC

The petitioner-mother had filed a habeas corpus writ in the court for the release of her four-year old daughter.

A view of Punjab and Haryana High Court building. File

The Punjab and Haryana High Court has held that an extramarital relationship of a mother by itself is no ground to deny her the custody of her child in case of marital dispute.

The petitioner-mother had filed a habeas corpus writ in the court for the release of her four-year old daughter who is alleged to be in the custody of the father (estranged husband of the petitioner) and to handover the custody to her.

Justice Anupinder Singh Grewal on May 10 while allowing the custody to the petitioner-mother stated that the respondent has levelled allegations pertaining to the character of the petitioner that she was in an extra-marital relationship with a relative of the petitioner. “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. 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,” Justice Grewal pointed out.

Mr. Grewal stated that in the instant case, these allegations against the petitioner being wholly unsubstantiated are not considered relevant to adjudicate the issue of custody of the minor child.

He added the child would require love, care and affection of the mother for her development in the formative years. “The support and guidance of the mother would also be imperative during adolescence. 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,”

Mr. Grewal said “especially when there is an order of the Australian Court, the child is under five years of age, she (the petitioner) is an Australian citizen and she 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.”