New Delhi: A divorced woman is entitled to the custody of a minor child even after remarriage, notwithstanding the fact that the father is the natural guardian under the Hindu law, the Supreme Court has held.

A Bench of Justices A.R. Lakshmanan and Altamas Kabir said: "The remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. It also has to be seen whether in view of his other commitments, the father is in a position to give personal attention to the child's overall development."

The Bench said: "According to the Hindu law, the natural guardian of a minor child [above the age of six] is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of the children if they do not happen to be unsuitable as guardians."

Rejecting the concept of the father being the natural guardian, the Bench said: "it has been the law for a very long time both in England and in this country and that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount."

Writing the judgment, Mr. Justice Lakshmanan said, "the father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after divorce is no ground for depriving her the parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child."

"No imbalance of mind"

The Bench said, "if the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage, involving a mother per se, will operate adversely to a claim of a mother for the custody of her minor child."

In the instant case, Lekha got separated from P. Anil Kumar within two and a half months of marriage. Thereafter, she gave birth to a boy. She obtained divorce on the ground of harassment and the trial court granted custody of the child.

The husband preferred an appeal in the Kerala High Court, and during its pendency, Ms. Lekha got married again.

The High Court granted custody of the child to the father. The present appeal by Ms. Lekha was against this order.

The Bench, after ascertaining the wishes of the 12-year-old boy, directed that Ms. Lekha be entitled to his custody and that her former husband has only visiting rights.

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