Adultery cannot be grounds to deny custody of child, rules HC

Court was hearing plea of man who was seeking custody of 9-yr-old daughter

MUMBAI: The Bombay high court on Friday rejected a Vile Parle resident’s petition who sought custody of his nine-yearold daughter from his estranged wife on grounds of adultery, observing that the adulterous behaviour of a woman could not be a reason to deny her custody of her child.

“Adultery is in any case a ground for divorce, however, the same can’t be a ground for not granting custody,” a bench of justice Rajesh Patil said in a 20-page ruling on a petition filed by the girl’s father, a 41-year-old IT professional.

The high court underlined that adultery was one of the grounds cited by the man in the petition filed before the family court in 2020 and was yet to be proven. Justice Patil also cited a ruling of the Delhi high court in January this year which gave the wife custody of her child even through her extra-martial affair alleged by her husband was proved.

“There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother,” the bench said.

The couple married in February 2010 and the girl child was born in January 2015. However, after the daughter’s birth, cracks appeared in the relationship and the couple drifted apart.

The woman, a 39-year-old doctor, later claimed that on 7 December 2019, she was driven out of the matrimonial home whereas the husband claimed that the woman left on her own.

In January 2020, she lodged a police complaint against her husband and initiated proceedings under the Protection of Women from Domestic Violence (DV) Act, 2005.

The husband responded by filing a petition before the family court at Bandra, seeking divorce on the grounds of cruelty.

On February 9, 2023, the family court allowed the wife’s plea for interim custody of the girl child from her estranged husband and the custody of the minor was transferred to the woman. The husband filed for restoration of custody but the family court rejected his plea on February 27 this year, prompting him to approach the high court for relief. The high court noted that there was no reason for the bench to take away custody from the mother.

Apart from raising other grounds like the child had been with him from December 2019 to February 2023, it was also argued on behalf of the husband that the minor daughter was not comfortable in the custody of her mother and that it was not proper to keep the girl child in her mother’s custody, as the woman had multiple affairs.

“The mother of the child is a doctor by profession who is now staying in a flat within the close vicinity nearby the daughter’s school. The mother of the wife who is a home-maker and is residing with the wife. The academic record of the minor daughter during her custody with the wife is also good. Therefore, according to me, there is no reason or change in the circumstances that the custody should be changed from the wife to the husband,” the court said.

Adultery is in any case a ground for divorce, however, the same can’t be a ground for not granting custody JUSTICE RAJESH PATIL