Remarriage no bar for man to have custody of minor child: Supreme Court

New Delhi: The Supreme Court has said that remarriage by a man upon the death of his wife cannot go against him if he sought custody of his minor child from maternal grandparents.

A bench of Justices B R Gavai and K Vinod Chandran said the maternal grandparents cannot have a better claim than the father, who is the natural guardian.

"Though the father has re-married, it cannot stand against the claim for custody; especially since otherwise, there would have been a question raised as to how the child would be taken care of; the father being engaged in his work," the bench said, in its judgment on February 7, 2025.

The court allowed a plea by a man to seek custody his child, studying in 7 th standard, from the maternal grandparents, who were taking care of the child after death of his mother in 2021. It directed the maternal grandparents to hand over the child to the father from May 1, 2025 upon completion of the ongoing academic year.

The man approached the court against the High Court's denial of custody of the child in a writ of habeas corpus petition filed by him.

Advocate Rajeev Kumar Dubey, appearing for the maternal grandparents, contended that the High Court has rightly considered the fact that the father has re-married soon after the death of the first wife, to refuse the custody of the child to the father.

He said the appellant-father should be relegated to the remedy he has voluntarily invoked before the Family Court under the Guardian and Wards Act.

The counsel said the plea for production of the child by a writ of habeas corpus was not at all maintainable.

In his submission, the appellant's counsel, Gopal Jha, on the other hand, relied upon Gautam Kumar Das Vs NCT of Delhi and another (2024), which stressed the need of the minor child to be with the natural guardian, especially when the mother is no more.

He said the child did not have any familiarity with the father after the death of the mother in the year 2021. He also furnished an affidavit of his second wife who undertook to take care of the child as her own and endorsed fully her husband’s need and desire to have the child with them for the betterment of his future.

The appellant was aggrieved with the order of the High Court's single-bench judge, who interacted with the child to conclude that he is comfortably residing and pursuing his education at his maternal grandfather’s house. It also noted that the father had re-married. It opined that the welfare of the minor child, a paramount consideration, would be served by letting him continue to stay with his maternal grandfather. The father was granted only visitation rights to meet the child regularly.

Having examined the matter, the bench said, "We cannot but observe that the single judge has not endeavored to elicit the child’s attitude towards his father."

Admittedly, the court noted, the child, after his birth, was with his parents for about 10 years till the death of his mother.

"There is no allegation of any matrimonial dispute when the mother of the child was alive nor a complaint of abuse perpetrated against the wife or son. The father, the natural guardian, we reiterate, is well employed and educated and there is nothing standing against his legal rights; as a natural guardian, and legitimate desire to have the custody of his child."

The court felt that the welfare of the child, in the facts and circumstances of this case, would be best served if custody is given to the father.

It also noted the father was an administrative officer in the state government.

The court also noted there is conveyance of a land in favour of the minor child by the paternal grandfather, who has also deposited Rs 10 lakhs in the child’s name. The grandfather has also taken out a life insurance policy of Rs 25 lakhs, the beneficiary of which is the child.

The maternal grandparents, however, were looking after the child with the help of the siblings of the mother. "The maternal grandfather had also initiated a proceeding for maintenance, claiming Rs 20,000 per month for the child; which makes it clear that the maternal grandparents are unable to look after the child by themselves," the bench said.

With regard to the maintainability of habeas corpus petition, the bench cited Nirmala Vs Kulwant Singh & Ors (2024), which stated that there can be no hard and fast rule for invoking it to seek custody of minor children, as it would depend on the facts and circumstances of each case.