Mothers can’t be denied child’s custody upon entering new relationship without divorce: Allahabad HC

However, the court allowed visitation rights to the father as a father’s company is also essential for the child’s welfare


Mothers who enter into new relationships without obtaining divorce from their husbands would not deprive her of the custody of her minor child, held the Allahabad High Court.

Justice J.J. Munir said, “This Court feels that at this age, depriving the minor of his mother’s company, might have an adverse impact on his overall development. This, in turn would derogate from the minor’s welfare.”

The court also observed that although the conduct of the woman to walk away from her husband’s home without securing a divorce and enter into a new relationship may be something that “the law and the society frown upon, but, in itself, is something not so depraved or immoral as to deprive the mother of her special place in the minor’s life.”

A habeas corpus writ petition was filed before the High Court by Ram Kumar Gupta (father) in the name of his son, complaining he is in the unlawful custody of Sanyogita (the minor’s mother and Ram Kumar Gupta’s wife). He prayed that the minor be directed to be produced before this Court and emancipated in the manner that his custody be entrusted to him, relieving the minor from the mother’s custody.

He alleged that his wife left her marital home on October 3, 2019 taking along the minor son which prompted the petitioner father to lodge an FIR on October 4 under section 346(wrongful confinement in secret) of the Indian Penal Code.  

Sanyogita, on the other hand, furnished to the Police that she had married the second time to one Balram Chaudhary on May 22, 2018. But the minor’s father Gupta, alleged that Sanyogita’s marriage to Balram is a nullity because it is a second marriage in the lifetime of her first husband and due to this, she has lost her right to their child’s custody.

Gupta contended that the minor’s life in the stranger’s (Sanyogita’s second husband) home is at risk. He further alleged that the minor has a bleak future and it is in the minor’s interest that he be placed in his father’s custody, who is his natural guardian, in preference to the mother, who has walked out on her lawfully wedded husband without a divorce, and staying in a live-in relationship with a stranger.

Courts observations

The court interacted with the minor who is little above 5 years old and observed that he was comfortable in his mother’s custody. The court observed, “The father attempted to touch the child, to which he sharply reacted, shunning the father’s touch.” The Court again called the child over and asked him if he would like to go back to his father but he did not say anything.

“This Court, on a careful consideration of the matter, finds that the minor, though above the age of five years, is still a child of tender years. He may not be an infant, who needs to be weaned away from his mother, but he still needs the tender care that the mother alone can provide”, remarked Justice J.J Munir.

The mother had alleged cruelty on part of her former husband (the petitioner) which the court refused to interfere in as its main focus was the welfare of the child. It said, “The mother indicated that she was treated with cruelty by Gupta and that is why she walked out on him. That is not this Court’s concern. It is this Court’s concern, however, to determine whether the minor would be safe and his welfare ensured in his mother’s new home. The way the minor’s mother has detailed her circumstances in Balram Chaudhary’s home, this Court feels that the minor, for the present, is well adapted into his mother’s new family.”

The court further said, “So far as the dominant and substantial part of the minor’s custody and care are concerned, this Court is of opinion that these would be better secured in the mother’s hands, in comparison to the father. At the same time, the minor cannot be deprived of the company of his father.”

Therefore, the court also allowed visitation rights to the father bearing in mind the subtler aspects of human behaviour. Hence, the court directed, “Sanyogita @ Gunja would be obliged to take the minor to his father’s home at Kanpur once in two months, on any Sunday of the month. The child will stay with his father from 10:00 am to 5:00 pm. During this time, Sanyogita would have to stay close by, if she is not comfortable staying at Gupta’s home.”

The order may be read here: 



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