October 29, 2018
Custody of Child- In this recent case, the Supreme Court has primarily held that remarriage of father does not deprive the father of the custody of his children from earlier marriage particularly when the terms of divorce did not object to any such circumstance in future.
Case name: Dr. Amit Kumar v. Dr. Sonila & ors.
In the case, the appellant and respondent had obtained divorce by mutual consent. As per the terms of decree of divorce, both the parties were at a liberty to remarry and it was also agreed that both their children would reside with the father i.e. appellant and that father would provide education, medicines, and marriage of their son and the mother would provide education, medicines and marriage of their daughter.
However, later on the Respondent i.e. mother claimed custody of the children and it was also alleged by the Respondent in the case that the appellant had remarried and that child of appellant’s second wife also resided with them.
In view of the facts and circumstances of the case, the Apex Court allowed the appellant’s plea and made the following observation in view of the facts and circumstances of the case:
- That the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. That there was a six months’ hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have a re-think.
- That the parties had clearly agreed that they were free to re-marry. As per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties.
- That it is not as if there can be no eventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his commitments, or look after the children.
- That the second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent.
- That a conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent, especially when he has been looking after the children and has not gone back on any of his commitments.
The entire case can be accessed here.