Extra-marital affair doesn’t make woman a bad mother, rules Punjab & Haryana HC

A bench of Justice Anupinder Singh Grewal made the observations while hearing a habeas corpus petition filed by a woman from Punjab’s Fatehgarh Sahib district, seeking custody of her four-and half-year-old daughter from her estranged husband who is an Australian citizen. The court directed that the custody of the girl be handed over to her mother who is presently residing in Australia.

Taking up the allegation by the woman’s husband that she was in an extra-marital relationship with a relative, Justice Grewal said, “Aside of the bald assertion in the petition, no supporting material has been brought before this court. 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,” Justice Grewal said in the order that passed on May 10 but whose copy was made available Thursday.

The court said that in this, the “allegations against the petitioner being wholly unsubstantiated are not considered relevant to adjudicate the issue of custody of the minor child”.

The woman, in her petition, had contended that she got married in 2013. Her husband was an Australian citizen and she later joined him in Australia. The couple had a daughter in June 2017. The woman and her husband later developed matrimonial differences which led to their separation. They arrived in India in January 2020. The woman alleged that her estranged husband kept the passport of the child and in a deep rooted conspiracy, took the girl away with him the next month when the petitioner had gone to her parental home. It was alleged in the petition that the husband instead of acceding to woman’s request to handover the child, started threatening her and the petitioner, fearing her safety, fled to Australia in February 2020. She moved a court in Australia seeking custody of the child. The court court passed an interim order in April 2020 directing her estranged husband to return the minor child to Australia.

The petitioner, during the hearing in the high court, contended that she had a sound economic status for the proper upbringing of the child.

The father of child, however, contended that the woman is involved in an extra marital relationship with a relative, which led to a marital discord. He also contended that the minor was residing with him and his parents in a cordial family environment for almost a year and the change of custody at this stage would not be in the interest of the child especially when the petitioner was living alone and thus, would not be in a position to take care of the child.

Passing the order, Justice Grewal noted, “…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”.

“The child would require love, care and affection of the mother for her development in the formative years. The support and guidance of the mother would also be imperative during adolescence. The mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956,” the judge wrote in his order.