Remarriage no ground to deny custody of children: SC

The Supreme Court has said that remarriage cannot be taken as a ground to deny custody of children to a man if it was agreed upon by the spouse at the time of divorce.

“Merely because he has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children, especially when he has been looking after the children and has not gone back on any of his commitments,” a bench of Justices Kurian Joseph and Sanjay Kishan Kaul said.

The top court allowed an appeal of a man against a Bombay High Court's order on a writ petition by his ex-wife to get custody of two children — 11-year-old and 8-year-old — for a period of one year.

Both the man and the woman, qualified as doctors and deployed with the CRPF, got married on May 7, 2004. After the birth of two children, the couple developed differences and got a divorce through mutual consent on December 9, 2016.

It was agreed that the parties can remarry and both the children would live with the man. It was also decided that the wife would, however, pay for education, medicine and marriage of the daughter.

After a while, when the man asked her to pay for daughter's the expense, the woman said the terms of the agreement were not acceptable to her.

Meanwhile, the man remarried. Upon the woman's plea, the high court directed both the children should be handed over to the mother for a period of one year.

On a plea against the HC order, the top court said it clearly emerges that the decision to give custody of the two children to the appellant was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud.

As per the terms, the said marriage would not have any effect on the custody rights, it said, having noted the man has borne all the expenses for both the children and the woman had failed to contribute anything towards the expenses for the daughter.

The man submitted that his second wife was an MBA and resigned from the bank to take care of domestic responsibilities, including taking care of children.

The woman, however, failed to pay anything for the daughter but had transferred substantive amounts to a person with whom she allegedly had a liaison.