Stepmothers would not ordinarily be able to take care of and show affection to children which biological mothers instinctively would, the Karnataka High Court recently observed while denying interim custody of a child to the father on the ground that he had remarried [Mohammed Mushtaq GK v. Ayesha Banu].
Justice Krishna S Dixit dismissed a petition challenging the order of a Family Court in Bangalore, denying the father custody of the child but according visitation rights.
The single-judge stated that an affidavit from the second wife that she would take care of the child would be of little solace to the biological mother
In this regard, the Court placed reliance on a judgment of the Madras High Court in TN. Muthuveerappa Chetty vs. T.R. Ponnuswami Chetty which held the following:
“It does not appear that, excepting the respondent’s wife, there is any female relation living with him competent to take proper care of the child. It would be hardly safe to presume that his wife, the child’s step-mother, would be willing to do so… There is good reason for believing that the maternal relations have strong affection for the child.”
The High Court was hearing a custody battle between a father and mother who had parted ways due to apparent temperamental differences, and a suit for dissolution of marriage was pending.
The petitioner had married another woman and was residing with her and had a child with her as well. He admitted to have been living happily.
The plea was filed contending that he was in a better position to take care of the child from a financial perspective and provide him with the best upbringing, education and a complete family environment.
It was also the petitioner’s contention that the respondent had neglected her duties towards the minor child and the petitioner.
The Court declined to interfere with the Family Court’s order, explaining that “in a society like ours, the disputes relating to child custody by their very nature are complex, regardless of religion or faith to which the parties belong.”
From long and multiple interactions with the parties and the child, the Court derived that the child was being groomed well by the respondent and the child too wished to continue in her custody.
Further, it was found that the petitioner had not cared to pay any sum for the maintenance of child, although he later paid ₹70,000.
“His contention that he is financially well placed and educationally superior does not make much difference to the custody issue, when all necessities of the child are duly met by the respondent-mother,” the Court said.
Additionally, the Court opined that the idea that if the custody of the child was given to the petitioner, the respondent would be all alone and the petitioner would have two children at his hands along with the second wife “offends the very sense of justice, to say the least”.
Justice Dixit noted that the Court had in its accumulated wisdom and discretion granted visitation rights to the petitioner and in such circumstances, the High Court could not undertake a deeper examination of the matter while exercising its limited supervisory jurisdiction vested under Article 227.
Attention was drawn to what transpired in the in-camera proceedings where the respondent graciously agreed to give up all allegations for buying peace, but the petitioner remained unjustifiably adamant and stuck to his guns.
Therefore, the petition was dismissed with costs of ₹50,000 which the petitioner was directed pay to the respondent within a month, failing which the Court directed that the visitation rights granted by the Family Court would be suspended.
Before concluding, Justice Dixit also urged the courts dealing with the issues between the two parties to dispose of the petitions before them within a period of nine months and report compliance to the Registrar General of the High Court.
Advocate Mallangouda H appeared for the petitioner while the respondent was represented by advocate Nayeem Pasha S.
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