The Supreme Court on Tuesday ruled that a woman cannot be denied custody of her child on the ground of remarriage.
"We are of the opinion that the re-marriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child," a Bench headed by Justice A R Lakshmanan said while allowing a woman's petition for the custody of her 12-year-old son.
Reversing a Kerala High Court verdict, the apex court restored the order of the family court, which had allowed the mother custody of the child.
According to Hindu Law, the natural guardian of a minor child is first the father and then the mother.
However, the court said while the father may be the natural guardian under the Hindu law, if the court was satisfied that the mother was a normal and independent young woman and the child wanted to stay with her then she shall not be deprived of the custody.
Appellant Lekha married P Anil Kumar in January 1994. After their marriage was dissolved, the Gulf-based husband had sought the custody of their son, which was dismissed by the trial court. However, on an appeal filed by the husband, the Kerala High Court gave him custody of the child on ground of that the Lekha had married again, after telling the trial court that she would not remarry.
But after talking to the child on November 16 last, the apex court said "the High Court committed a grave error in not ascertaining the wishes of the minor, which had consistently been held by the courts to be of relevance in deciding grant of custody of minor children."
The court took note of the fact that the child wanted to live with the mother.
The apex court felt that notwithstanding her second marriage, there was no hinderance to her getting the custody of the child as she had enough financial resources to provide the minor with quality education and life. "It will be beneficial for the boy and his education for a better future," the court said