The Punjab and Haryana High Court recently comprising of a bench of Justice Anupinder Singh Grewal observed that even if a woman is in an extramarital relationship, one cannot conclude that she is not a good mother to deny her the custody of her child. ( *Petitioner* v. State of Punjab and others)
Facts of the Case
The mother had moved the Punjab and Haryana High Court for the issuance of a writ of habeas corpus to secure custody over her minor daughter. Her daughter was forcibly taken away from her by the husband following a matrimonial dispute.
A divorce petition was earlier filed by the petitioner before an Australian Court in 2019. However, it was withdrawn the same year after the petitioner’s husband is stated to have promised to improve his behaviour.
In January 2020, the couple arrived in India. The petitioner claimed that her husband took away the child when she was in her parental home. The petitioner’s counsel submitted that the petitioner returned to Australia fearing for her safety after her husband threatened her. The child remained in India with the husband, leading the petitioner to move the High Court for relief. Meanwhile, orders were issued by Australian courts directing the husband to return the child to the petitioner in Australia and for the arrest of the husband.
Contention of the Parties
In her petition, the woman’s counsel argued that she is capable of raising her daughter as she is financially stable, has her own house and doing well for herself in Australia. Whereas, her husband is facing financial hardships.
Besides, she said that the court should direct the husband to handover the custody of the minor child the petitioner as the principle of comity of court entails that as a foreign court had passed an order.
Once she landed in Australia, she filed a petition for the custody of the minor child in the Federal Circuit Court. The Australian court had ordered the husband to return the minor child to Australia.
On the other hand, the husband’s side argued that his wife was involved in an extra-marital affair with one of his close relatives and said that the minor child is living with the him and her grandparents in a homely family environment for almost a year and the change of the custody at this stage would not be in the interest of the child especially when the petitioner is living alone and thus, would not be in a position to take care of the child.
Courts Observation & Judgment
The judgment stated, “It would be worthwhile to note that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child.”
The Court has also taken a progressive view of single parenthood, especially by a mother.
The bench observed that although the Court had mooted reconciliation between the parties, it was not suggesting that a child raised by a single parent would be at a disadvantage.
The Court said, “Modern times are replete with the instances of children raised by the single parent having grown as responsible adults contributing to nation-building in various fields”.
The Court noted that the mother was a resident of Australia with a steady stream of income and welfare support from the Australian government. The child’s father (petitioner’s husband) was an Australian citizen who was residing in India.
The bench observed that the principle of comity should be followed to show due respect to Courts abroad. However, a foreign judgment would not be the only factor for consideration.
The bench emphasised that the paramount consideration would continue to be the interest and welfare of the child. The Judge eventually allowed the petition, while also noting that the Hindu Minority and Guardianship Act, 1956 views the mother as the natural guardian of a child until s/he attains the age of 5 years.
The bench held, “when there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia, I am of the considered view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.”
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