NEW DELHI: Remarriage after the death of a spouse cannot be a stumbling block to claim custody of a child from the first marriage, Supreme Court has said while allowing a father to take back custody of his minor son who was taken away by in-laws after the death of his first wife.
A bench of Justices B R Gavai and K Vinod Chandran said the welfare of the child could be better taken care of by the father who is the natural guardian and set aside the order of Allahabad high court which rejected his plea.
Noting that the father had remarried and the child was comfortably residing and pursuing his education at his maternal grandfather’s house, the HC had said that the welfare of the minor child, which is of paramount consideration, would be served by letting him continue with his grandfather and the father was granted visitation rights to meet the child regularly on the first day of every month.
The father thereafter approached the apex court and his in-laws again highlighted his remarriage as a ground to deny him custody and told SC that his remarriage soon after the death of the first wife was rightly considered by the HC.
The bench, however, did not agree with the findings of the Allahabad high court and set aside its order.
“The father is an educated person and holding a responsible position having been appointed to the administrative services of the state. 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 court said.
It also noted that paternal grandfather has also deposited an amount of Rs 10 lakh in the child’s name and he also has also taken out a life insurance policy of Rs 25 lakh, the beneficiary of which is the minor child and it showed that the family cared about the child.
“We cannot but observe that the learned Single Judge (of HC) has not endeavored to elicit the child’s attitude towards his father. Admittedly, the child, after his birth, was with his parents for about 10 years till the death of his mother. He was separated from the father in 2021 and has been living with his grandparents, who cannot have a better claim than the father, who is the natural guardian. 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 bench said.