Giving Custody To Father Who Remarried & Is Living With Second Wife Is Not Conducive To Child's Welfare: Punjab & Haryana High Court

The Punjab & Haryana High Court has directed to restore custody of a minor son to his Australian mother, observing that giving custody of the child to father who has remarried and living with second wife is not conducive to the welfare of the child.

Notably, the Australian Court had granted custody of the mother and father was only given the visitation rights.

Justice Rajesh Bhardwaj said, "the continued custody of the minor child with the respondent-father, who is remarried and residing with his second wife, is unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child."

The Court added that, "once the respondent-father has been remarried, then it is obvious that the welfare of the child is with petitioner no.2-mother, who has not been remarried only because of the reason that she wants to devote her life for her children's well being, their happiness and to make them successful in every aspect of life. In these circumstances, the question arises with whom the welfare of the minor child rests and the answer is obvious, with petitioner no.2-mother."

It further said that, the Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions. The constitutional writ jurisdiction of the Indian Courts is neither designed nor intended to be misused in this manner.

The Court was hearing a habeas corpus plea seeking custody of a minor child, filed by the father of the mother, an Australian citizen. It was stated that due to matrimonial discord between the father and mother of the child the marriage was dissolved. The Australian Court as per consent of the couple had granted the custody of the minor son and daughter to the mother and visiting rights were given to the father. 

It was alleged that the father, with permission of the Family Court at Australia, granted order to bring the child to India for the period from 08.01.2025 to 02.02.2025. However, the daughter was sent back but the son was kept in India and the father refused to him.

After expiry of the period granted by the Australia Court, the mother filed the petition before the Family Court at Australia, upon which the Family Court at Australia has passed the recovery order dated 03.03.2025 wherein the Government of India and the police authorities were requested to help in execution of the order passed by that Court and to facilitate return of the child to Australia.

The father of the child contended that  India is not a signatory of the Hague Convention and, thus, the order passed by an Australian Court is not enforceable in the Court in India.

Perusing the order passed by the Australia Court, the Court noted that, "with the consent of both the parents, the Family Court at Australia allowed the respondent-father to travel India for the period running from 08.01.2025 to 02.02.2025. However, the respondent-father on coming to India, had tried to overreach the order passed by the Family Court at Australia by sending back only the daughter and not the son."

While noting that the father was allowed to take the child in India for a specific period, i.e. 08.01.2025 to 02.02.2025 and once the said period is over and without any further extension by the Family Court at Australia, the bench said "the custody of the child thereafter with the father is without any authority of law and, thus, the Court finds the custody, after expiry of the period which was granted by the learned Family Court at Australia, as prima facie illegal with the respondent-father."

Relying on Apex Court's decision in Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others (2019) the Court found that the present petition in the form of habeas corpus for restoring custody of the minor child to the mother is maintainable as the custody of minor child with the respondent-father is found to be prima facie illegal and without any law.

 Justice Bhardwaj highlighted that, the conduct of the respondent-father would itself negate the contention raised by his counsel, for the reason that if behaviour of the mother is not conducive to the son, then the same would have to be detrimental to the daughter as well. "But surprisingly, she had been sent back to the mother, whereas the son has been restrained and not allowed to go back to the mother."

Child's Welfare Can't Be Dependent On Momentary Emotions

The judge noted that the welfare of the child cannot be solely dependent on the emotions of the child as he is not in a position to analyze the intricacies of his future life.

It noted that the child was sent with the respondent-father by the Family Court at Australia to visit India for a family function and the mother had consented for the same but unmindful of the wrong intention of the respondent-father in keeping the minor child restrained in India in defiance of the order of Family Court at Australia.

On interaction with the child, the Court observed that the child was answering in a way "as if he was tutored."

"The duty of the Court is of utmost sensitivity in the facts and circumstances of the case. The child as on date may be enjoying his stay in India, however, for his temporary/short-lived enjoyment, his future cannot be compromised and hence, this Court, on considering overall facts and circumstances of the case finds that the welfare of the child lies in his native country Australia," it added.

The Court opined that while international comity must be respected, the decisive factor must always be the best interest of the child and while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands, then technical objections cannot come in the way.

"A child, especially a child of tender years requires the love, affection, company, protection of both parents. A child is not an inanimate object which can be tossed from one parent to the other. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding custody matters of a child," it said.

In the light of the above, the Court directed the father to restore the custody of the child to mother along with all travelling documents, adding that the mother shall be at liberty to take the minor child to Australia. 

Mr. S.S.Salar, Advocate, Mr. Jasjeet Singh Dhaliwal, Advocate, and Mr. Goldy Jakhar, Advocate, for the petitioner.

Mr. Tarun Aggarwal, Addl. A.G., Punjab.

Mr. Ashish Rawal, Senior Panel Counsel, for respondent no.2.

Mr. R.S.Atwal, Advocate, for respondent nos.7 & 8.

Title: Joginder Singh Sekhon and another v. State of Punjab and others

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