‘EXTRAMARITAL AFFAIR NOT TO BE THE GROUND TO ASSUME A WOMAN WOULD BE A BAD MOTHER OR TO DENY CHILD CUSTODY’ By Ishita Dutta @LEXCLIQ

Recently the Punjab and Haryana High Court stated that even if a woman is involved in extramarital relationship, one cannot conclude her to be a bad mother and deny her child custody. Justice Anupinder Singh Grewal quoted that it is fairly common to cast such accusations on the moral character of a woman in a patriarchal society. The judgment broke the patriarchal shackles prevailing in the Indian society, where the Court took a progressive view of single parenthood especially by mother.

The Court cited that the contemporary times are replete with the instances of children raised by a single parent who have grown to be as responsible as adults contributing to nation building in various fields. It also quoted that the child would not be at disadvantage if raised by a single parent.

The Punjab and Haryana High Court made observations, while granting custody of a four year old child to her mother who was accused by her estranged husband to be involved in an extra-marital relationship with her brother in law. The Court of law observed that the husband had not substantiated his accusations he made against his wife, leading the judge to view them as bald assertions not applicable to adjudicate on the custody of the child.

The petitioner was a resident of Australia with a steady stream of income and had welfare support from the Australian Government. The petitioner’s husband was an Australian citizen who was residing in India. A divorce petition was filed in 2019 before the Australian Court but it was later withdrawn as the petitioner’s husband stated to improve his behavior. In the year 2020, the couple arrived in India, where the petitioner claimed that her husband took away the child from her while the petitioner was visiting her parent’s home. The child remained in the custody of her husband, compelling the petitioner to move to the Punjab and Haryana High Court.

The petitioner had filed a plea in the court of law seeking the issuance of writ of habeas corpus to get custody of her minor daughter. In the meantime issues were ordered by the Australian Court directing the husband to return the child to the petitioner in Australia and for the arrest of the petitioner’s husband.

The Hindu Minority and Guardianship Act of 1956 was also pertinent in the decision by the High Court, which comprehends that the mother is the natural guardian of the child until he/she attain the age of five.

In the course of judgment, the High Court observed that the principle of comity should be applied to show due respect to the Courts abroad. However a foreign judgment would not be the solitary reason for consideration, it would emphasis on the interest and welfare of the child also.

The nature of these judgments, not only elevate the position of women in our Indian society but also breakdown the stereotypes that women as single parents can be equally accomplished and responsible in upbringing their child. Such verdicts reflect that judgements cannot be just made on assumptions but on practicality of facts.

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