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Extramarital Affair No Ground To Conclude Woman Wouldn't Be A Good Mother & Deny Her Child Custody: Punjab & Haryana High Court

Sparsh Upadhyay
2 Jun 2021 2:56 AM GMT
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Noting that in a patriarchal society, it is common to cast aspersions on the moral character of a woman, the Punjab & Haryana High Court, while granting custody over a four-year-old child to her mother, recently observed thus:

"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."

The Bench of Justice Anupinder Singh Grewal was hearing a plea filed by the mother, who had moved the High Court for the issuance of a writ of habeas corpus seeking custody of her minor daughter.

Importantly, the Court noted that her husband couldn't substantiate the allegations pertaining to the character of the Woman that she was in an extra-marital relationship with her relative.

"Aside of the bald assertion in the petition, no supporting material has been brought before this Court," noted the Court.

Importantly, the Court observed that modern times are replete with the instances of children raised by single parents having grown as responsible adults contributing to nation-building in various fields.

The matter before the Court

The Court noticed that the parties (Husband/Father-Wife/Mother) had gone to Australia in furtherance of their career prospects and they were working in Australia. The child was born in Australia and in her initial years, she was brought up there.

The Court observed that the Mother had permanent residency in Australia and she is earning 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of the child as well by the Australian authorities.

The Mother and Father (Husband-Wife) developed matrimonial differences which led to their separation and the woman filed a petition for divorce in the year 2019, in the Federal Circuit Court (Australia), however, before the divorce could be finalized, her Husband promised that he would improve his behavior in future and thus, they, started living together.

Further, while they were living together, they arrived in India in January 2020, and thereafter, the Husband allegedly kept the passport of the child and took away the child and started threatening her wife.

Thus, fearing her safety, she fled back to Australia wherein she filed a petition for the custody of the minor child in the Federal Circuit Court, Australia, and the court passed an interim order in April, 2020 directing her husband to return the minor child to Australia.

Meanwhile, she also moved to the Punjab & Haryana High Court seeking custody of the Child.

Court's order

Noting that when there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia, the Court was of the view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.

Consequently, the petition was allowed and it was ordered that the custody of the girl child would be handed over to the petitioner-mother. The Court noted that the petitioner-mother was stated to be residing in Australia, thus the Court directed:

"Till the petitioner arrives in India to take the custody of the child, (the husband) shall ensure that the child interacts with the petitioner through video conferencing every Tuesday, Friday and Sunday at 01:00 p.m. (IST) or as mutually agreed by them." remarked the Court.

"On the arrival of the petitioner in India and after observing Covid-19 protocol, the custody of the child shall be handed over to her by respondent No.4," added the Court.

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