The Punjab and Haryana Supreme Court has ruled that allegations of infidelity against the mother cannot be a reason to refuse custody of children under the age of five.
The Supreme Court Judiciary, Sudhir Mittal, noted that both the Guardian Act and the Minority Act leave no doubt that the minor’s welfare was the primary consideration that the court had, and normally does, consider when appointing a Guardian Also in the interest of children under five years of age, custody should lie with the mother.
In the case at hand, a Panchkula woman challenged a court order that transferred custody of her daughter under five and her eleven-year-old son to her husband. The court found that both sides’ allegations could not be considered as they had not been proven by evidence. However, the Supreme Court found that the court had been influenced by the allegations against the mother, which were “a perversity that needed to be corrected”.
The Supreme Court overturned the February 2020 court order and not only granted the mother custody of the girl, but also gave her custody of the boy. It found that the boy could not be separated from his sister, as this would traumatize both of them.
The couple were married in 2008 and the male child was born in 2009, the girl in 2017. The couple separated in February 2019. The mother claimed she was thrown out of the house, harassed for dowry, and tortured and not allowed to take the children with her.
The estranged husband had argued that the woman did not have the means to support herself and that she was a person of questionable character. If the children were given custody, their normal development would suffer, the father had argued.
Children miss their mother: amicus curiae
In the case, an amicus curiae was appointed by the court to report that the children had missed their mother and that the male child was indoctrinated against them. Even so, he was very keen to meet her and enjoyed her company, it was reported.
An amicus curiae is someone who is not involved in a case and who assists a court by offering information, expertise, or insight that has an impact on the facts of the matter.
The court found that the mother had worked and was still working for over 10 years after the marriage. On this basis, she concluded that she had the means to feed her children. However, the court granted the husband visiting rights.
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