The Hon’ble Apex Court on 26.10.2018, in the matter of Dr. Amit Kumar v. Dr. Sonila & Ors. held that Second marriage is no ground for depriving a party of custody rights of children and the fact that a child of second spouse is residing with such party shall also not deprive such party of the custody rights of his/her children.
Among other things, the Hon’ble Apex Court further observed that:
If a person relinquishes his/her rights to claim custody then Order II Rule 2 of the Code of Civil Procedure, 1908 shall be attracted which specifies that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. (This inference has been drawn on the basis of Para 17 of the judgement)
Terms of custody may require modification but, that would arise if the interests of the children so desire, and more specifically if a party fails to honor his/her commitments, or look after the children. (This inference has been drawn on the basis of Para 18 of the judgement)
The second marriage of a party cannot be put against him/her, nor can the factum of the child of second spouse residing with such party deprive such party of the custody rights of his/her children, which have been specifically conferred with the consent of the other party. (This inference has been drawn on the basis of Para 18 of the judgement)
Merely because a party has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive her/him of the custody of the children as agreed upon between the parties, especially when he/she has been looking after the children and has not gone back on any of his/her commitments. (This inference has been drawn on the basis of Para 19 of the judgement)
A party cannot be permitted to take advantage of the visiting rights granted for the vacation period to subsequently claim that the children should continue to stay with him/her.(This inference has been drawn on the basis of Para 20 of the judgement)
Copy of judgement: Judgement 26th-Oct-2018