The Supreme Court on October 26, 2018, in the case of Dr. Amit Kumar v. Dr. Sonila & Ors., has held that remarriage is not a ground for depriving a person of custody of the children.

A Bench comprising of Justice Kurian Joseph and Justice Sanjay Kishan Kaul while deciding the child custody has observed that “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.”

In this case, a doctor couple got divorced by mutual consent under Section 13B of Hindu Marriage Act, 1955. The couple got two kids and as per the divorce deed, the couple got into an agreement that the custody of both the children would be with the father. It was also agreed that the husband would provide for education, medicines and marriage of the son while wife would do the likewise for the daughter.

The husband, meanwhile, went through a second marriage and started residing with his second wife.

The issue, however, triggered when the husband asked his former wife to contribute financially for the maintenance of the daughter which she was obliged to do according to the deed. In her response, she stated that the consent decree was not acceptable to her, and also alleged that the transfer of children to the boarding school was a unilateral act of the appellant (husband) and that the expenses quoted were exorbitant.

Thereafter, she filed custody applications which reached the Bombay High court. The Bombay High court, taking note of the second marriage of husband and also the fact that the children were sent to a boarding school, directed that the children would remain in the custody of the mother for a period of one year. Aggrieved by the said order the husband moved to the apex court.

The Bench observed that “the second marriage of the appellant 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.”

“The second wife of the appellant is an educated lady. 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 bench added.

The bench then set aside the Bombay High court order observing that the rights and obligations as envisaged in the decree of divorce by mutual consent will bind both the parties.