The Punjab and Haryana high court has said that allegations of infidelity against the mother can’t be a ground for denying her custody of children below the age of five years.
The high court bench of justice Sudhir Mittal observed that the Guardian Act as well as the Minority Act leave no manner of doubt that the welfare of the minor was the paramount consideration to be kept in mind by the court while appointing a guardian, and ordinarily to serve the best of interests of the children below five years of age, the custody should be with the mother.
In the case at hand, a Panchkula woman had challenged a trial court order in which the custody of her daughter aged below five years and 11-year-old son was given to her husband. The trial court had observed that the allegations from either side could not be taken into consideration as they had not been proven through evidence. But the high court observed that the trial court had been influenced by the allegations made against the mother which was “a perversity requiring correction”.
Quashing the trial court order of February 2020, the high court not only granted custody of the girl child to the mother, but also gave the custody of the boy to her, observing that the boy could not be separated from his sister as it would traumatise both of them.
{{/usCountry}}Quashing the trial court order of February 2020, the high court not only granted custody of the girl child to the mother, but also gave the custody of the boy to her, observing that the boy could not be separated from his sister as it would traumatise both of them.
{{/usCountry}}The couple were married in 2008, and the male child was born in 2009, the girl child in 2017. The couple got separated in February 2019. The mother had alleged that she had been thrown out of the house, harassed and tortured for dowry and had not been permitted to take the children along with her.
The estranged husband had submitted that the wife did not possess the resources to maintain herself, and that she was a person of questionable character. If given the custody of the children, their normal development would suffer, the father had argued.
Children miss their mother: Amicus curiae
An amicus curiae was appointed by the court in the case, who had reported that the children missed their mother, and the male child was being indoctrinated against her. Despite that, he was keen on meeting her and enjoyed her company, it was reported.
An amicus curiae is someone who is not a party to a case who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case.
The court found that the mother had been working for over 10 years after marriage and was still working. Based on this, it concluded that she possessed the means to maintain her children. However, court has allowed visitation rights to the husband.