According to the Punjab and Haryana High Court, even if a woman is in an extramarital relationship, one cannot conclude that she is a bad mother and deny her custody of her child.
In a patriarchal society, such aspersions on a woman's moral character are rather prevalent, according to Justice Anupinder Singh Grewal.
According to the ruling issued last month,“It's important to note that in a patriarchal society, it's fairly common to cast doubt on a woman's moral character. These accusations are frequently made without any basis or foundation. Even if a woman is or has been in an extramarital relationship, this cannot be used to conclude that she would not be a good mother and thus deny her custody of her child.
The Court has also taken a progressive view of single parenthood, especially by a mother.
The Judge noted that, while the Court had suggested that the parties reconcile, it was not implying that a child raised by a single parent would be at a disadvantage.
“In modern times, there are numerous examples of children raised by a single parent who have grown into responsible adults who contribute to nation-building in a variety of fields,” the Court stated.
The mother had requested a writ of habeas corpus from the Punjab and Haryana High Court in order to gain custody of her little daughter.
The mother was an Australian resident with a constant supply of money and assistance support from the Australian government, according to the Court. The father of the kid (the petitioner's husband) was an Australian citizen living in India.
The petitioner had already filed a divorce suit with an Australian court in 2019. However, it was withdrawn the next year after the petitioner's spouse allegedly pledged to change his ways.
The pair came to India in January 2020. Following that, the petitioner alleged that her spouse abducted her child when she was visiting her parents.
The petitioner’s counsel submitted that the petitioner returned to Australia fearing for her safety after her husband issued threats against her.
The kid stayed in India with the petitioner's spouse, prompting the petitioner to seek redress from the High Court. Meanwhile, the High Court was informed that Australian courts had issued orders for the husband to restore the kid to the petitioner in Australia and for his arrest. The High Court stated in its decision that the concept of comity should be respected in order to show proper respect to foreign courts. A foreign verdict, however, would not be the only element to consider. The Court underscored that the child's best interests and wellbeing will continue to be the most important factor.
The Judge eventually allowed the petition, while also noting that the Hindu Minority and Guardianship Act, 1956 views the mother as the natural guardian of a child until s/he attains the age of 5 years.
Before parting with the matter, the Court also made a note to acknowledge the valuable assistance rendered by the petitioner’s counsel, Advocate Divjyot Singh Sandhu, who unfortunately passed away due to COVID-19 before the verdict was pronounced.