In a significant ruling regarding child custody and guardianship, the High Court of Chhattisgarh has held that a father living with a second wife without obtaining a divorce from his first wife commits “misconduct” and “cruelty,” thereby disentitling him to the custody of his minor child. The Division Bench comprising Justice Sanjay K. Agrawal and Justice Arvind Kumar Verma emphasized that the “welfare of the minor” is the paramount consideration, which cannot be overridden merely by the father’s superior financial capacity.
The Court was adjudicating an appeal filed by a father challenging the Family Court’s refusal to grant him custody of his 7-year-old son. The core legal issue was whether a father, who is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, can be denied custody on the ground that he is cohabiting with another woman as his second wife without a legal divorce.
Dismissing the appeal, the High Court affirmed that while the father is a natural guardian, his right is not absolute and must yield to the child’s welfare. The Court ruled that exposing a child to a step-mother in an uncertain environment, while the natural mother is available and providing a good atmosphere, is not in the child’s best interest.
Background of the Case
The case, titled Laxmikant Joshi v. Lokeshwari @ Parmeshwari, arose from a matrimonial dispute. The appellant-husband and respondent-wife were married on May 13, 2013, and have two sons. According to the judgment:
- The Dispute: Matrimonial discord led to the wife leaving the matrimonial home on October 6, 2021, taking the younger son. The elder son, Master Yash, initially stayed with the father.
- Custody Transfer: Following a complaint by the wife, the Sakhi One Stop Center, Durg, intervened. On November 10, 2021, the custody of the elder son was handed over to the mother.
- The Petition: The father moved the Family Court, Bemetara, under Section 6 of the Act of 1956, seeking restoration of custody.
- Family Court’s Finding: The Family Court dismissed the application on April 21, 2022, holding that the father had brought a woman named Suman Joshi alias Lileshwari into his home as a second wife without divorcing the respondent. This was termed as “cruelty and misconduct.”
Arguments of the Parties
Appellant’s Contentions: Represented by Advocate Mr. Bharat Rajput, the father argued that the mother “is not financially competent to take care of the child as she has no source of income.” He contended that his financial stability made him better suited to ensure the child’s welfare and education.
Respondents’ Defense: Advocate Mr. Aman Tamboli, appearing for the mother, defended the lower court’s order. He pointed out that the appellant “himself, has admitted that he is living with a woman named Suman Joshi alias Lileshwari as his second wife.” He argued that this conduct made the father unfit for custody, regardless of his financial status.
Court’s Analysis and Observations
The High Court conducted a detailed analysis of Section 13 of the Act of 1956, which mandates that the welfare of the minor is the paramount consideration.
1. On Financial Status vs. Welfare: Rebutting the father’s argument regarding the mother’s lack of income, the Bench cited the Supreme Court judgment in Dhanwanti Joshi v. Madhav Unde (1998). The Court observed:
“The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child’s total well being.” The Judges held that giving “sole or more importance to the superior financial capacity” of the father would be improper.
2. On the Impact of the Second Wife: The Court took serious note of the appellant’s admission in cross-examination that he was having an affair with Suman Joshi and had stated before the Sakhi Center that he had married her. Relying on the Supreme Court’s decision in Athar Hussain v. Syed Siraj Ahmed (2010), the Court observed that a second marriage is a crucial factor in custody disputes.
“This Court cannot be oblivious of the future aspect that there is no certainty that the child will get better love and affection as also good atmosphere from her step-mother, in comparison to what he has been receiving from her mother since birth.”
The Decision
The Division Bench concluded that the minor child was living in a “good atmosphere” with his mother and receiving necessary love and affection. Finding that the father’s conduct of keeping a second wife rendered his custody claim detrimental to the child’s interest, the Court dismissed the appeal and upheld the Family Court’s decree.
Case Details
- Case Title: Laxmikant Joshi v. Lokeshwari @ Parmeshwari & Anr.
- Case No: First Appeal (MAT) No. 87 of 2022
- Bench: Justice Sanjay K. Agrawal & Justice Arvind Kumar Verma
- Counsel for Appellant: Mr. Bharat Rajput
- Counsel for Respondents: Mr. Aman Tamboli
