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In a judgment passed today, the Supreme Court observed that a second marriage cannot be held against a divorcee to deprive him of the custody of his children born of the failed wedlock, more so when the divorce was obtained by mutual consent.
As stated in the judgment,
“The second marriage of the appellant [divorcee] cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1.
Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments.“
The observation was made by Justices Kurian Joseph and Sanjay Kishan Kaul while allowing an appeal filed by a divorcee man against a Bombay High Court verdict which had handed custody over his children to his former wife/respondent. This, he pointed out, was done contrary to the terms of a divorce decree passed in December 2016.
The terms of this divorce decree had granted the appellant full custody over his two children, whereas both the appellant and respondent undertook to provide equal financial support for the children.
As a natural corollary to the divorce, both parties were also allowed to enter into another marriage if they wished to. The appellant eventually entered into a second marriage. Following the terms of the mutual divorce, the appellant and his second wife took care of the children, while the respondent was allowed visitation rights.