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A Woman Having A Relationship Before Her Divorce Is Complete Doesn’t Make Her An Unfit Mother, Says Allahabad Court.

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Divorces can be scary – one has to wipe the slate clean and reframe their life. It’s hard becoming single again, of course, I can only empathise having no first-hand experience. But I can imagine it must be so tough that our breakups seem rather frivolous in comparison. While splitting assets and possessions is one thing, how do you deal with the custody of your child? When one of my uncles got divorced, I have seen how difficult it was for him and my aunt. But having said that, it was equally tough for my cousin who was too young to even figure why her parents are fighting. Of course, none of the parents – mother or father – want to let go of the child. I must say, they are doing a fab job co-parenting my cousin and have raised her with a lot of love and warmth. She lives with her mother but spends enough time with her dad as well. I guess that’s what parents should want – the best for their child.

But what happens when in our moral policing society, a woman is the first one to move on? When it comes to fighting for the custody of the child, it’s a very dirty game that unfolds before the law. The estranged husband and his lawyers often try their best to character assassinate the woman. She is called a woman with low morals if she is already seeing someone or has had an affair. If she is a working professional, they raise questions about her maternal instincts. They may even prove a woman is of unsound mind.

 

However, in a milestone move, the Allahabad High Court observed that even if the mother is in a new relationship without being divorced, it still doesn’t take her right away to hold the custody of her child. The Bench of Justice J. J. Munir observed that “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.”

This observation was made in connection with a habeas corpus writ petition filed by Ram Kumar Gupta stating that his son was in unlawful custody of his mother Sanyogita. He requested the court to order his son to be produced before the court and the custody to be handed over to him. The ex-couple got married in 2009, had the son in 2015 and as alleged by Gupta, Sanyogita left with their son in October 2019. After he lodged an FIR, Sanyogita revealed to the police that she had married another man in 2018 and has moved with him.

Gupta, pointing out that the marriage is nullified since they aren’t divorced yet said that he deserves the custody of their son and not his wife. On the other hand, Sanyogita said Gupta has not been a good father or a good husband. This is why she claims to have broken up with him.

However, the child seems to have well-adjusted to his new home and family. And given the situation, the court found that it would be difficult for a child that young to live alone with a working father. “The fact that the mother has walked away from her husband’s home without securing a divorce and entered into a new relationship with Balram Chaudhary, which she represents and ostensibly believes to be a second marriage, 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,” the court noted. It further added, “There may not be anyone, even half as able to take care of the minor at this young age as his natural mother.”

 

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“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,” the court ruled. However, it pointed out that a father too has rights over the child and ensured visitation rights to Gupta. Sanyogita is ordered to take the son to his father’s home in Kanpur every two months.

It is heartening to know that our society is evolving, in some parts at least. Finally, a woman is seen as a woman, an individual, a human being with desires, and no obligation to adhere to society’s stale norms.

In fact, both mother and father are expected to be involved in their child’s life. No longer a father is expected to just provide and a mother to just nurture. In a ruling, the Telangana High Court observed, “A parent cannot be a guest in the life of their child. If visitation rights only are granted for limited hours, it may not be sufficient for the child to have comfortable time with the father or mother, whoever may be the case.” remarked the Telangana High Court. Karnataka High Court encouraged co-parenting saying, “It is necessary to remind ourselves that a child requires both, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child.”

ALSO READ:Delhi Court Order Observes That Using Sexist Language Against Women Can Attract Sexual Harassment Charges Under IPC

And no, this isn’t taking men’s rights away, for those concerned about that. In 2018, in a similar case before the Supreme Court, the man had remarried and was living the second wife and her child. In this case, the children – a son and a daughter – were allowed to live with their father. However, they would be spending time with both the parents. And since both father and mother were doctors and financially sound, the son’s expenses were to be taken care of by the father and daughter’s by the mother. This is about equality. And it’s time we did away with attacking a woman’s character to pull her down, just because she followed her desires.

ALSO READ: Couples In Live-In Relationships Must Not Be Harassed, Rules Allahabad HC. Some Relief Finally

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