Father Living With Second Wife Without Divorce Not Entitled To Custody; Child's Welfare Prevails Over Financial Capacity: Chhattisgarh HC

The Chhattisgarh High Court has upheld a Family Court's decision whereby custody of a 7-year old child (respondent 2) from his biological mother (respondent 1) was refused to be transferred to the appellant—father on the grounds that he kept a second wife without obtaining a decree of divorce from his first wife.As the minor was already getting requisite love and affection from his biological mother, a Division Bench of Justice Sanjay K. Agrawal and Justice Arvind Kumar Verma held,“This Court cannot be oblivious of the future aspect that there is no certainty that the child will get better love and affection as also good atmosphere from her step-mother, in comparison to what he has been receiving from her mother since birth.”While the appellant had argued that he was financially more capable of sustaining the needs of the minor child, the Court referred to Section 13(1) of the Hindu Minority and Guardianship Act, 1956—which mandates that while appointing a guardian, paramount consideration should be given to welfare of the minor. Consequently, the Court emphasised that father's superior financial capacity cannot be given sole importance as welfare of the child depends upon balancing all physical, mental and emotional factors and determining what is best for his holistic wellbeing.“The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child's total well being.”, the Division Bench added.BackgroundThe appellant and respondent 1 were married in 2013, and blessed with two sons. When matrimonial discord arose between the two, Respondent 1 left her matrimonial home alongwith their younger son in 2021, and later the elder son (respondent 2) was also handed over to the respondent 1.When the appellant filed an application under Section 6 of the 1956 Act, seeking custody of respondent 2, the Family Court rejected the application stating that the appellant was residing with his second wife, without obtaining a decree of divorce from his first wife, ie, respondent 1, which amounts to cruelty and misconduct.The aggrieved husband challenged the Family Court's decision in the High Court where he argued that his application was wrongly rejected and that Respondent 1, having no source of income, is not financially equipped to sustain the needs of their elder son. In contrast, respondent 1 reiterated that the appellant was living with a second wife, a fact which was admitted by the appellant during cross examination.The Court referred to Section 6(a), 1956 Act which governs the natural guardianship of a Hindu minor, and provides that the father is natural guardian of a boy. However, the proviso states that custody of a minor, who has not completed the age of 5 years, stays with the mother. Further reference was made to the case of Smt. Mohini v. Virender Kumar [AIR 1977 SC 1359], where the Supreme Court held that though the natural guardians are enumerated in Section 6, the right is not absolute and the Court has to give paramount consideration to welfare of the minor.Taking the welfare of the child into primary consideration, the Court refused to grant custody of the minor to the appellant, and upheld the Family Court's decision.Case Details:Case Number: First Appeal (MAT) No. 87 of 2022Case Title: Laxmikant Joshi v. Lokeshwari @ ParmeshwariClick Here To Read/Download Order

Father Living With Second Wife Without Divorce Not Entitled To Custody; Child's Welfare Prevails Over Financial Capacity: Chhattisgarh HC

Saahas Arora

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