Above: Illustration by Amitava Sen

The Punjab and Haryana High Court declines to hand over a minor girl to her father who did not get a divorce from his wife but was staying with a live-in partner

By Vipin Pubby in Chandigarh

Children are, undoubtedly, the worst sufferers when their parents get divorced or decide to live separately. However, with the trend of one of the separated parents opting for a live-in relationship gaining momentum, the courts are faced with the issue of providing custody to the affected child.

In deciding such cases, courts are increasingly keeping the child’s interest in mind. This was witnessed recently in the Punjab and Haryana High Court when a division bench decided against giving the custody of a minor girl to her father, who was in a live-in relationship without the dissolution of the previous marriage. The bench held that “there are chances that the child would learn that live-in relationships are the way of life”.

The bench, comprising Justice Rakesh Kumar Jain and Justice Harnaresh Singh Gill, dismissed an appeal filed by a Hisar resident, challenging the decision of a family court on child custody. The family court had favoured custody to her mother.

The bench said it cannot approve this kind of a social set-up “because it would give a wrong signal to the society at large and would create an adverse impact on the tender mind of the minor child, especially a girl child”.

The couple had got married in 2005 and had two daughters. The wife was later allegedly harassed and humiliated for bringing less dowry and thrown out of her matrimonial home by the appellant. Without obtaining a decree of divorce, he started living with another woman with whom he had another daughter.

The husband got custody of one of the two daughters through an order from the sub divisional magistrate, Hisar. The wife then approached the Hisar family court to seek custody of the girl on the ground that she was being humiliated by her husband’s live-in partner. The family court found that it would not be in the welfare of the child to remain in the custody of the husband because he is stated to be a habitual drunkard, living an immoral life. The husband, however, argued that since he had admitted his daughter to a good school in Hisar and the welfare of the child is of paramount consideration, he should be allowed to retain the custody because his wife did not have any source of income.

Declining to give custody of the daughter to the husband, the family court held that the custody of a child could not be given to a person who had fathered a child through a live-in relationship without even divorcing his wife. The husband then approached the High Court which dismissed his appeal.

The Supreme Court had in a judgment in 1978 considered live-in relationships valid for the first time.

Ajay Malhotra, a lawyer who specialises in cases pertaining to custody of children, welcomed the High Court’s judgment, pointing out that the husband had not obtained divorce from his wife before entering into a live-in relationship and it could have had a lasting impact on the child’s personality and growth. Another senior lawyer said that while the circumstances in this particular case could be peculiar, the society and the courts should reconcile with the fact of growing trend of live-in relationships.