Allegations Of Affair Common In Matrimonial Dispute: Punjab & Haryana HC Refuses To Grant 3-Yr-Old's Interim Custody From Father To Mother

The Punjab and Haryana High Court refused to grant the interim custody of the 3-and-a-half-year-old son to the mother from the father, observing that the child is happy with the father and uprooting him would not be in his best interest.

Justice Vikram Aggarwal refused to consider allegation levelled against the child's father by the mother about his involvement with another girl.

"Though, such allegations are common in matrimonial disputes and parties often level allegations and counter allegations, upon interaction with the respondent, it was found to be his concern about the said alleged relationship. Under such circumstances, in the considered opinion of this Court, for the present, the welfare of the child would be to remain with the respondent," said the Court.

The Court was hearing the revision plea challenging the order of Family Court, vide which the application, filed by the wife for the grant of interim custody of the minor child was dismissed.

The couple got married in 2019, and certain differences cropped up between them, as a result of which a divorce by mutual consent was filed.

In 2021, a joint statement was filed stating all the disputes were amicably settled and the custody of the minor child had been handed over by the wife to the husband and that she would not claim his custody and visitation rights in future.

In 2024, the wife appeared before the Family Court and gave a statement that she did not wish to take divorce and that she wanted back the custody of the minor child.

A petition under Section 7 read with Section 25 of the Guardians and Wards Act, seeking custody of the minor child was filed by the wife which was dismissed.

After hearing the submissions, the Court noted that the proviso to Section 6 (a) of the the Hindu Minority and Guardianship Act, 1956 lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

It considered the question, whether the situation is a normal situation warranting the custody of the minor child to be with the mother or there are certain circumstances out of the ordinary which would impel this Court to not hand over the interim custody of the minor child to the mother at least at this stage, the petition for custody being pending before the Family Court.

The judge upon examining the circumstances found that, "The petition filed under Section 13-B of the HMA, 1955 contained a specific recital that parties had agreed that the custody of the minor son Aadhish would remain with the respondent-husband and that the petitioner-wife would not claim custody or meeting rights even in future."

It also rejected the stand taken by the wife that the custody of the minor child was handed over to the respondent by keeping her in the dark is unacceptable.

The Court observed that the wife earns Rs. 10,000 from tuition whereas the husband is in the work of digital marketing and is stated to be working from home. "He is stated to be earning a reasonable amount with which the child can be looked after."

Justice Aggarwal highlighted that when the mother was not in the chamber for personal interaction session and only the child was there with the father, the father was asked to leave the chamber and the moment the father got up, the child started crying inconsolably stating that he would not leave his father.

"It cannot be denied that being of a very tender age, the child would cling to the parent with whom he has been living for a while. If the custody is given to the mother, the child may behave in the same manner if the custody is again attempted to be given to the father," added the Court.

In the light of the above, the Court concluded that the situation in hand is "not an ordinary situation" and noted that the custody of the child is with the father for the last more than one year now.

Hence it opined that, to forcibly give the interim custody of the child to the mother at this stage may have an adverse impact on the mental well being of the child who, as already noted, appeared to be quite comfortable in the custody of the father.

Consequently, the plea was dismissed.

Mr. Sanjiv Kumar Aggarwal, Advocate and Mr. Tejas Bansal, Advocate for the petitioner alongwith petitioner and minor child.

Mr. Ankit Chahal, Advocate for the respondent alongwith respondent.

Title: XXX v. XXX

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