Woman Entering in a New Relationship Without Divorce Would Not Be Deprived of Minor Child’s Custody

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The Allahabad High Court has held that a woman would not be deprived of her minor child by the fact that she had entered into a new relationship without obtaining a divorce.

One Mr Ram Kumar Gupta has filed a petition in the name of his son Anmol Shivhare. The court disposed of the  petition said,

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.”

As per the petitioner, Mr. Gupta, the marriage of Sanyogita to another person is performed during the husband’s lifetime, and therefore the second marriage done is null and because of this, she lost her right to the custody of Anmol.  The petitioner further went on saying that the minor’s life in the stranger’s home is at risk, and the minor’s custody with Sanyogita in the stranger’s home is unlawful. The Minor has a bleak future.

The petition said that it is the protection of the minor that he should be put in the care of his father, who is his natural guardian, in preference to the mother, who has walked out without divorce on her lawfully wedded husband and resides in a living-in relationship with a stranger.

On the other side, the mother pointed out that Mr. Gupta is not a kind father, he treated her with cruelty and that is the reason behind her move to leave the house.

After the interaction of the court with the woman and her son, it was found,

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.

The court also remarked,

So far as a 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.”

The court ordered that Sanyogita would be directed to take the minor to Kanpur’s father’s home once every two months, on any Sunday of the month.


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