Father Staying With Second Wife Without Divorcing First Not Eligible For Custody; Child’s Welfare Overrides Father’s Financial Capacity: Chhattisgarh HC
Isabella Mariam
The High Court of Chhattisgarh Division Bench of Justice Sanjay K. Agrawal and Justice Arvind Kumar Verma dismissed a father’s appeal and upheld the Family Court’s refusal to shift custody of a 7-year-old child from the biological mother to the father. The dispute arose after the father sought custody while the mother opposed the request, alleging that he was living with a second woman as wife without obtaining a divorce decree from the first marriage. Holding that the child was already receiving adequate care, love and affection with the mother, the Bench noted that the Court could not ignore the future risk, observing there was “no certainty that the child will get better love and affection … from her step-mother.”
The parties were married according to Hindu rites and were parents of two minor sons. Following matrimonial discord, the wife left the matrimonial home along with the younger child, while the elder son initially remained with the father. Subsequently, upon proceedings before the Sakhi One Stop Center, the elder child was handed over to the mother.
The father thereafter filed an application under Section 6 of the Hindu Minority and Guardianship Act, 1956 seeking custody of the elder son. He asserted that he was financially capable of maintaining the child and contended that the mother had no independent source of income.
The mother opposed the application, stating in her written statement that the father was residing with another woman as his second wife without having obtained a divorce, and that such conduct disentitled him from custody. In support of her plea, reliance was placed on the father’s admissions during cross-examination and statements made before the Sakhi One Stop Center.
The Family Court rejected the custody application, giving paramount consideration to the welfare of the minor. Aggrieved by this decision, the father preferred the present appeal under the Family Courts Act, 1984 seeking reversal of the Family Court’s order.
The Court observed that “Section 6(a) of the Act of 1956 enumerates the father as the natural guardian of a Hindu minor, and after him, the mother.” The Court recorded that “though the natural guardians are enumerated in Section 6, the right is not absolute and the Court has to give paramount consideration to the welfare of the minor.”
The Bench stated that “Section 13(1) of the Act of 1956 clearly mandates that while appointing or declaring any person as a guardian of a Hindu minor by the Court, paramount consideration shall be given to the welfare of the minor.” It further recorded that “the welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child.” The Court noted that “the answer depends on the balancing of all these factors and determining what is best for the child’s total well being.”
Referring to binding precedent, the Court observed that “the purpose and object of the Guardians and Wards Act, 1890 is not mere physical custody of minor but due protection of ward’s health, maintenance and education.” It further recorded that “the power and duty of the Court under this Act is welfare of minor.”
The Court stated that “the word ‘welfare’ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense.” It recorded that “the moral and ethical welfare of the child must also weigh with the court as well as its physical well-being.”
On facts, the Court recorded that “the appellant/plaintiff has himself admitted in his cross-examination that he is having a love affair with Suman Joshi alias Lileshwari.” It further recorded that “he also admitted that he has made statement before the Sakhi One Stop Center, Durg that he has gotten married with Lileshwari at Bhoramdev Temple.” The Court noted that “the statement made by the respondent/defendant No. 1 in her affidavit that the appellant/plaintiff has kept Suman Joshi alias Lileshwari as his second wife has remained uncontroverted in the cross-examination.”
The Court observed that “since the appellant/plaintiff is residing with another woman and is keeping her as his second wife, therefore, it would be inappropriate to grant custody of respondent/defendant No. 2 to the appellant/plaintiff.”
The Bench recorded that “the minor is residing with his mother and is getting love and affection from her and is in a good atmosphere.” It further stated that “there is no certainty that the child will get better love and affection as also good atmosphere from her step-mother, in comparison to what he has been receiving from her mother since birth.”
Addressing the contention regarding financial capacity, the Court stated that “giving sole or more importance to the superior financial capacity of the appellant/plaintiff/father would not be proper.” It reiterated that “welfare of the child depends upon balancing of all the factors – physical, mental and emotional and determining what is best for the child’s total well being.”
Finally, the Court recorded that “learned Family Court has rightly rejected the application filed by the appellant/plaintiff under Section 6 of the Act of 1956.” It concluded that “we do not find any merit in this appeal.”
The Court directed that “the appeal is dismissed. The parties shall bear their own costs.”
Advocates Representing the Parties
For the Appellant: Mr. Bharat Rajput, Advocate
For the Respondents: Mr. Aman Tamboli, Advocate
Case Title: Laxmikant Joshi v. Lokeshwari @ Parmeshwari & Another
Neutral Citation: 2026: CGHC:2182-DB
Case Number: First Appeal (MAT) No. 87 of 2022
Bench: Justice Sanjay K. Agrawal, Justice Arvind Kumar Verma
