A man, who deserted his wife and son just 16 months after birth, has been denied the custody of the child by the Delhi High Court which said the minor's welfare lies in staying with his mother.
The court noted that the woman has remarried three years after her divorce and resides in Dubai with her nine-year-old son and second husband, who is well-paced in life and working in a multinational company there.
A bench comprising of Justice Hima Kohli and Justice Asha Menon said.
“There is no reason to direct that his (child) custody be handed over to the appellant (man) on the flimsy excuse that the step-father would be mistreating him or that the respondent (woman) was likely to lose interest in him after she gives birth to a child from the second marriage. These are all surmises and conjectures and are not backed by any evidence."
The High Court dismissed the man's appeal challenging a family court's decision denying him the child's custody.
It said:
“Children are the first and the most susceptible victims of a shattered interpersonal relationship between the spouses. Much as children would love to always remain in the loving care and custody of both the parents, they are torn between the father and mother due to their matrimonial disputes and the battle for their custody, leaving them helpless and devastated."
The bench said it had serious reservations in disturbing the minor's custody as the child was just 16 months old when the man gave 'talaq' to his wife in July 2012 and the boy remained with his mother at his maternal grandparents' place in Hyderabad.
The bench said:
“Admittedly, the woman had given birth to the child at her parental home at Hyderabad and ever since then, the child has remained in her care and custody and in all this duration, nothing has been placed on record to demonstrate that the man had established contact with the woman and reached out to the child, except for some self-serving bald statements made by him to the effect that he made several efforts to meet the child and that he was better positioned to take care of the needs of the child."
The court said it does not find any reason to remove the minor from his mother's custody and direct that he be handed over to the father.
"The guardianship petition filed by the man appears to be more a tool to even out a score with the woman, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being,” it said.
The man and the woman had married in June 2009 in Delhi and were blessed with a baby boy in February 2011.
The woman had alleged she was harassed for dowry by her husband and in-laws and had to spend most of her time at her parental house. She had lodged a case for alleged harassment against her husband and in-laws.
In May 2013, the man approached a family court here seeking custody of his son and to be declared as his natural guardian. The plea was dismissed by the court after which he moved the high court which also refused to grant him the relief.
The high court was informed that during the pendency of the guardianship petition, the man had got remarried but even the second marriage did not last for too long as he had got divorced.
The court said if it was to accept the man's plea that the family court has erred in refusing him the child's permanent custody even being aware of the fact that the woman had remarried and taken the child to Dubai and there was a possibility of the step-father mistreating the minor, the same argument would apply to the man who also got remarried.
It said there was no guarantee that his second wife would have taken good care of the child from the man's first marriage, as against the biological mother.
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