Ruling that an extramarital affair of a woman cannot be used to define her as a bad mother, the Punjab and Haryana High Court handed over the custody of her four-and-a-half-year-old daughter to the woman on Wednesday.
The observation of the court came in a habeas corpus petition filed by the woman after her daughter was forcibly taken away from her by the husband following a matrimonial dispute, The Times of India reported.
Pronouncing the judgement, Justice Anupinder Singh Grewal said, “…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 petitioner, hailing from Fategarh Sahib in Punjab, and her husband (from Ludhiana) are both Australian citizens. They got married in November 2013. Their child was born in June 2017.
The woman was forcibly separated from her daughter in February 2020 when she came to India to visit her parental village Naulakha.
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.
“The petitioner, who is the mother, is seeking custody of a four-year-old girl child. 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,” ordered the judge.
The court also observed that allegations of extra-marital affair against the petitioner being wholly unsubstantiated are not considered relevant to adjudicate the issue of custody of the minor child.