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Thursday, January 28, 2021

Divorced mother’s custody of child can never be illegal: court

A divorce cannot take away a mother’s right to be with her child and the custody cannot be called unlawful...

Written by Utkarsh Anand | New Delhi | January 26, 2009 11:53:09 pm

A divorce cannot take away a mother’s right to be with her child and the custody cannot be called unlawful,a city court has held while quashing a man’s petition alleging that his estranged wife had illegally detained his son.

Additional Chief Metropolitan Magistrate (ACMM) Lokesh K Sharma said that keeping the child is a mother’s “natural right”,and a court requires extraordinary reasons to disturb the guardianship. “The custody of a minor child by his mother,by any stretch of imagination,would not constitute any offence,” the ACMM said in his order on Thursday.

The court also held that a mother could not be called an offender even if she forcibly detains the child. In the present case,the man had demanded that a search warrant be issued against his estranged wife.

Sharma said that divorce was a legal separation between husband and wife but they continue to remain the child’s father and mother. “A divorce between the parties,either by a decree of court or by a custom,severe relationship between them only as husband and wife. But the right of either of them as his legal and natural guardian does not ceases to exist,” the court held.

A resident of Gokulpuri,the petitioner had alleged that he did not know the whereabouts of the child since January 8,and that his former wife was not letting their son to attend school.

The court also dismissed the petitioner’s plea that under Islamic laws,a woman would cease to exercise her rights as a mother after divorce. Observing that no such literature or judicial order could be brought on record by the man,ACMM Sharma said various precedents had established that a mother’s custody was officially authorised under the prevalent laws as well as customs.

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