The Telegraph
Since 1st March, 1999
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Custody win for moms
- Remarriage no reason for taking away child

New Delhi, Nov. 21: A mother cannot be deprived of the custody of her child just because she has remarried, the Supreme Court held today.

A bench headed by Justice A.R. Lakshmanan said it would make no difference even if the mother, while seeking custody, had deposed that she did not intend to marry again.

Setting aside a Kerala High Court order revoking a woman’s custody of her 12-year-old son, the apex court said “the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother”.

The woman had moved the apex court against the high court order allowing her former husband to take their son with him to Saudi Arabia.

Earlier, the family court, after considering all relevant material and interviewing the child, had opined that “for the welfare of the child, the custody should be given to the mother”.

In an appeal before the high court, the husband pointed out that his former wife had remarried immediately after the judgment of the family court, before which she submitted that she did not intend to marry again.

He contended that the continued custody of the boy with her would be “detrimental to the interest, progress and welfare of the child”.

The high court granted custody of the 12-year-old to the father, who had pointed out that he was earning more than his former wife, and that the grandmother would look after the child.

The apex court bench interviewed the child who said he had no ill-will towards his father but was not keen on living with him permanently.

Noting that the boy wanted to live with his mother, who loved him, the court said paramount consideration should be given to the welfare of the child, and allowed the woman to retain custody.

The boy had been living with his mother for the last several years and any separation at this stage would affect his mental condition, it said.

Under Hindu Law, the father is the natural guardian of a minor after the age of six years but the welfare of the child has to be considered while deciding on custody.

Madras High Court had ruled in 1950 that a father’s remarriage could not be a ground for depriving him of his parental right of custody of a child.

In the case at hand, the couple had lived together for just two-and-a-half months after marriage. The wife, thereafter, obtained a divorce on the grounds of harassment and cruelty. She remarried after obtaining custody and has another child from her second marriage.

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