Mother entering into new relationship without obtaining divorce not a ground to deprive mother of her special place in minor`s life

Mother entering into a new relationship allegedly without obtaining divorce from her husband, may be something that the law and the society frown upon, but, in itself, is something not so depraved or immoral as to deprive the mother of her special place in minor`s life. Custody should be given to the mother so long as the child is below five years in age as paramount consideration must be given to ‘welfare of child’.

A habeas corpus writ petition was filed by father with prayer that minor be ordered to be produced before the Court and that his custody be entrusted to him, relieving the minor from the mother's custody.

Minor, is still a child of tender years. He may not be an infant, who needs to be weaned away from his mother, but he still needs the tender care that the mother alone can provide. The fact that the mother has walked away from her husband’s home without securing a divorce and entered into a new relationship, which she represents and ostensibly believes to be a second marriage, may be something that the law and the society frown upon, but, in itself, is something not so depraved or immoral as to deprive the mother of her special place in the minor’s life.

Minor cannot be deprived of the company of his father. Court has also said that rights of the minor to his father’s company have to be ensured at all costs.