Q: Discuss custody of child in remarriage of parent ?

Ans:

 Custody of child in Remarriage of parent

Remarriage of a parent is one of such factors, which though relevant, may or may not influence a Court's decision to a large extent. The factum of remarriage will only play a supplementary role to the other more influential factors. A comparison of three cases involving this issue may provide an insight into the influence of this factor:

(a) In Saraswatibai Shripad Ved v. Shripad Vasanji Ved, when the father of minor had married again, the High Court of Bombay observed that while remarriage by itself may not be a ground for depriving the father of the custody of his minor child; taking human nature into consideration, a step-mother cannot be expected to be deeply interested in the welfare of a minor stepson, nor likely to give him the attention, love and sympathy that the child naturally requires. Therefore, it would be in the interest of the child that it is brought up by its mother.

(b) In Lekha v. P. Anil Kumar, the Supreme Court observed that remarriage of mother cannot be taken as a ground for not granting the custody of the child to the mother; and paramount consideration should be given to the welfare of the child. In this case, the Court had observed that during the interview, the boy had expressed his willingness and desire to live only with his mother and he had opined that his mother will provide him good education. The Court had also taken into consideration that the mother was drawing pension of Rs. 6,000 p.m., and had land and properties in her name. Therefore, when the boy said that he preferred to live with his mother, it would be beneficial for the boy to live with his mother so as to secure his education and future, more particularly, when the boy had already been living with his mother for last several years and separation would affect his mental condition and education.

(c) In Kumar V. Jahgirdar v. Chethana Ramatheertha,  the Family Court had granted exclusive custody of a girl-child to the father (former husband of Chetana, who was the mother of child) with right of weekly visitations to her grounds, inter alia that;

Chethana, who was the mother of child) with right of weekly visitations to her on the grounds, inter alia, that:

(i) while the mother, had entered into a re-marriage with Anil Kumble, a famous cricketer, her former husband was still unmarried, and his nature of business as a stockbroker was such that he would be able to give required attention to the rearing of the child; and

(ii) custody of child with natural father would rule out possibility of attempts on the part of the mother and her second husband to induce or create ill-will in the mind of the child towards her natural father; and 

(iii) weight should be given to the long periods for which the girl child had lived with her natural father and had herself expressed satisfaction and happiness.

However, the High Court, in an appeal against the Family Court's judgment, reversed the judgment of the Family Court since after interviewing the child twice, it had come to the conclusion that in the absence of any compelling or adverse circumstances, the natural mother cannot be deprived of the exclusive custody of a growing female child.

The Supreme Court then confirmed the judgment of the High Court with slight modifications based on the following observations:

 (i) The child was 9 years old and on advent of puberty, and therefore, required more care and attention of the mother.

(ii) The biological father of the child lived alone with his father, and there were no female members living with him. 

(iii) The mother has given up her service and was leading life of a housewife.

(iv) The biological father is a busy stockbroker and it cannot be said that during his business, he can abstain from attending his office and other business engagements to attend to the child at his residence.

(v) The wife was pregnant, and the prospect of arrival of the second child in the family of the wife is a favourable circumstance for the child.

(vi) The apprehension expressed against the second husband that he might poison the mind of the child and create ill-will towards the biological father could not be borne out from the evidence on record; and on the contrary, the second husband, in his deposition, had made statements evincing a cooperative and humane attitude on his part towards the problem of the estranged couple and the child.

(viii) Preference of status quo

If, upon consideration of all factors, the scale does not tilt in favour of either of the parents, usually, the Courts do not disturb the prevailing condition and prefer to ensure a status quo with a view to not create a stir in the child's being. For example, in a case where the child was getting good education and was doing well in his studies, the proposal of an immediate American education that the father was prepared to finance was held not to be a sufficient ground for shifting the child to the father's custody ignoring the fact that for the last more than 12 years, the child had been in the mother's custody.