Remarriage will not deny child custody to mothers

?Re-marriage of mothers can't be taken as ground for not handing over child to mother," says Bench, reports Satya Prakash.

india Updated: Nov 22, 2006 00:31 IST

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 AR Lakshmanan said allowing a mother’s petition for her 12-year-old son’s custody.

Reversing a Kerala High Court verdict in the matter, the apex court restored the order of the family court, which had allowed the mother to have the custody of the child.

According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother.

However, the court said that the father might be the natural guardian under the Hindu law, but 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, who was married to P Anil Kumar in January 1994, had a baby boy - now 12.

After the dossolution of the marriage, the Gulf-based husband had sought the custody of the child which, was dismissed by the trial court. However, on an appeal filed by the husband, the Kerala High Court gave him the custody of the child on the ground of remarriage of the mother, who had had said during the trial court proceedings 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 hindrance 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

However, recognizing the need to expose the child to his natural father, the apex court permitted Kumar to have custody of his son from the mother during Onam and other important festivals and during school vacation.

The court made it cleat to the mother to hand over the child to the father every summer vacation for about a month without adversely affecting the cild’s education.

It also asked Lekha not to prevent Kumar from coming to see the child during weekends and directed her to make necessary arrangements to the father-son meeting and asked her not to prevent the child from receiving any gift from the father.

Email Satya Prakash: satya.prakash@hindustantimes.com

First Published: Nov 22, 2006 00:31 IST