Anju from Rajasthan, who left her husband and went to Pakistan for her lover 6 months ago, has returned to India. Anju has told the Intelligence Bureau and Punjab Police about the purpose of her coming to India. According to media reports, Anju has crossed the border to divorce her first husband and take her children back. However, Anju has not made any comment regarding this yet. Anju’s husband Nasrullah in Pakistan, while talking to a YouTube channel recently, had said that Anju will go to India for a few days. Then after completing the work from there, she will come back. Nasrullah had mentioned that Anju did not feel comfortable without children.
34 year old Anju has two children, one being a 15 year old daughter and the other being a 6 year old son. Both the children currently live with Anju’s first husband Arvind. In such a situation, the question arises whether Anju will be able to get her children’s custody?
Can Anju alias Fatma divorce her husband?
In India, married people have the right to divorce. However, Anju’s case it is quite different and infact quite complicated. Anju got remarried without getting a divorce. In such a situation, a case of second marriage will be filed against her first.
According to 13A of the Hindu Marriage Act 1956, marrying without divorcing one’s partner is a crime. This has been explained in section 494 of the Indian Penal Code. Under this, if a man marries for the second time without divorcing his first wife, he can be punished with a minimum punishment of 7 years. Anju had gone to Pakistan and got married without divorcing her husband. If her case is opened then Anju shall be in deep trouble.
Three months ago, her husband Arvind had filed a case against Anju in Rajasthan levelling allegations of threat to murder him. Rajasthan Police can tighten the screws on Anju in this case also. Anju’s divorce case will be heard only after all these matters are dealt with. Yes, if only the divorce case is filed directly by her husband, then the court will hear it first.
Where can Anju stay now?
After coming to India, Anju planned to go to her home in Gwalior. Anju’s maternal home is in Gwalior. However, there is suspense over her stay in Gwalior. Anju’s father while talking to the journalists said that they have disowned her. The villagers have also issued a warning regarding Anju. The villagers said that if Anju comes forcefully into their border, she shall be killed. In such a situation, Anju can stay at a safe place under the supervision of the police, from where she can follow the legal process. If the police takes her into custody in any case, then she will remain in police custody. After this it will be decided in the court where Anju can live.
Will Anju be able to get her children?
The biggest question is whether Anju will be able to get the custody of her children, whom she can take to Pakistan? The Hindu Minority and Guardianship Act, 1956 provides details regarding the custody of children in case of separation of parents.
In custody, the age, gender, upbringing and safety of the child are considered first. Generally, the court sends children above 9 years of age into custody on their own free will. In India, children are sent to custody in 5 ways.
- The first method of custody is called physical custody. In this, the child remains with the first guardian forever. The other party is allowed to meet only from time to time. The entire upbringing of the child is done by his first guardian. The court selects the first guardian.
- Joint custody is also quite popular in India. In this, parents keep their children with them on rotation basis. Who will keep the child with them for how many days in joint custody is also decided in the court.
- Legal custody is also a way to keep children with you. In this, one of the parents has the right to decide about the future of the child. Like- where will the children study, how will their expenses be covered etc…
- The method of sole child custody is adopted when one of the parents is ill or the child is in danger. The risk assessment of the child is decided on the basis of reports and previous work done.
- There is also a system of third party custody in India. During this type of custody, children are kept with a third person apart from the parents. This custody is usually given after the parent becomes ill or dies.
Experts say that the formula of sole child custody can be applied in Anju’s case. If Anju’s two children consider themselves a threat if she goes to Pakistan, then her custody can be given to her father. Anju’s daughter is more than 9 years old, so the court can also ask her opinion on it. Anju has remarried, hence her husband may oppose if she asks for the custody of the children.
