Supreme Court of India Says Fathers Can Remarry and Retain Custody

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The Supreme Court of India says parents can remarry without risking custody, according to a decision last month.


Laws in India, as with most of the world, lean toward mothers getting custody. Religion also plays a role. For Hindu parents and secular cases, mothers retain physical custody of children under age 5 and usually of older girls. Older boys usually stay with their fathers. There are exceptions. For instance, if mothers are guilty of abuse or neglect, or if children over age 9 state a different preference.

Joint custody is a new and popular means of handling custody, with both parents sharing time with the children and having the right to make decisions for them.

Parents or the courts determine parenting time with agreements customized to fit the needs of each family. Parents might exchange children on certain days, or alternate weeks or months. Many families have completely flexible agreements managed without the help of the courts.

Under Muslim law, fathers can only seek custodial rights if a mother is guilty of abuse or absent.

The court decision last month involved a doctor couple who mutually agreed to divorce and for the father to retain physical custody of their two children. The father was to support the son financially, and the mother was to support the daughter. Unfortunately, the mother refused to do so. When the father pushed the issue, his ex-wife attempted to gain custody of their children to avoid paying support. Her complaint rested on the fact the father had a new wife who was living in the home.

Child support in India is awarded in various ways depending on the needs of the child. While some parents have monthly support payments, as is customary in the United States, others have lump-sum agreements or disbursements based on important milestones in a child’s life.

Justices Kurian Joseph and Sanjay Kishan Kaul found in favor of the father, acknowledging the couple had agreed to remarriage at the time of their divorce. They also pointed out the mother’s failure to support her child wasn’t financially necessary. She could afford to fulfill her obligations. She just didn’t want to.

The court judgment reads:

“We, however, see no reason why the appellant (husband) has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant.”

Further, Justice Kaul clarified remarriage was not an obstacle for the father in retaining custody, writing:

“Merely because he 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.”

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