First wife has exclusive right over children: Karnataka high court

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If a Muslim wife can stay away from her matrimonial home on the ground of her husband’s second marriage as it is tantamount to cruelty, it goes without saying she can normally retain the exclusive custody of her minor child too, the Karnataka high court has observed in a recent judgement.

“An argument to the contrary would permit an unscrupulous husband, who contracts another marriage, to pressurize his first wife to continue in the matrimonial home, eventually retaining the child in his exclusive custody. This court is of a considered view that even the visitation rights of such a father will diminish to a great extent,” Justice Krishna S Dixit has observed in his order.

The judge has, however, added that such a diminution in no way absolves him of the obligation to provide for the sustenance of the child.

Petitioner told to pay Rs 50k to wife in 30 days
Rejecting by the petitioner the petition -husband filed seeking custody of his eightyears-old son, the judge cited Islamic jurist Asaf AA Fyzee’s quote, “The custody of an infant child belongs to the mother.” The judge imposed Rs 50,000 cost on the petitioner payable to his wife within a month and added failure to pay it would lead to suspension of all visitation rights granted to him by the family court.

Though an attempt was made to settle the issue amicably through in-camera proceedings, it was not successful. The court noted the first wife “graciously agreed” to give up all allegations and withdraw complaints against the petitioner for buying peace and asked this court to quash them straightaway. But the petitioner was “unjustifiably adamant”. The minor boy wished to continue in the custody of his mother. Justice Dixit asked the trial court to dispose of eight pending cases relating to the couple within nine months.

The Sunni Muslim couple got married in April 2009 and stayed in Arizona for some time. They had a boy in August 2013. The husband, who is employed with an MNC, married a second time and they have a girl child.

In 2016, he moved the family court in Bengaluru seeking dissolution of his first marriage. In 2018, by way of an application under Guardian and Wards Act, he sought his son’s custody. On December 17, 2018, the court granted him visitation rights on the third Saturday of every month. He challenged the order, contending he is in a better position to take care of his kid from a financial perspective. He submitted an affidavit from his second wife, stating the child could come and stay with them.

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