Wife Remarriage is hardly a ground to claim custody of the child, Delhi HC

The Delhi High Court on May 1, 2020 {FAISAL KHAN v. HUMERA} held that the respondent/ wife had got married to Mr. Mussavir Mustafa, she had left with the child for Dubai, where her husband is working in a multinational company. The Court held that this goes to show that the respondent has sufficient funds and economic resources to attend to all the needs of the child either for purposes of his schooling or for bringing him up comfortably. It was held that the respondent's remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. The Court held that at the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.

The Court observed that since the child has remained in the custody of the respondent all this while, even if the appellant is the legal guardian of the minor, the respondent's claim to retain the custody of the child as the biological mother would stand on a better footing. 

The HC held that in evaluating a case of custody of a minor child, the sole and predominant factor that ought to weigh with the court is in the best interest of the child which included the aspect of stability, security, love and understanding, for a wholesome development of the child’s personality and talent. It was held that the said welfare has to be  measured not only in terms of the financial support and physical comfort that the child may get. It was held that equally pre-eminent is the emotional, moral and ethical welfare of the child.

The Court held that when there is a dispute between the parents in respect of the custody of the minor, the court has to try and strike a balance between the welfare of the child and the rights of the parents over the child. It was held that while deciding a custody petition, the courts must not be swayed only by the legal rights of the parties. It was held that the sole and dominant consideration ought to be the welfare and the happiness of the minor and the need to find out what would be the best manner of serving his interest, whether by way of offering emotional security or psychological stability or by showering him with love, and understanding.

It was further held that, at the same time, the court can also not be oblivious to fact circumstances that reveal that the husband has been mistreating his wife which would be treated a negative character trait and the court would have to ponder if it would be desirable for him to claim the custody of child only because he is the natural guardian.

In the present case, the appeal was directed against an ex-parte judgment, passed by the Family Court, Saket Court, dismissing a petition filed by the appellant/father under Section 25 of the Guardians & Wards Act, 1890 for seeking custody of the minor son of the parties, master Azhaan, who is in the care and custody and the respondent/mother.

The High Court, while dismissing the appeal, observed that the guardianship petition filed by the appellant appears to be more a tool to even out a score with the respondent, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being.

Accordingly, the impugned judgment was sustained and present appeal was dismissed as meritless by the Delhi High Court.