Adultery can be grounds for divorce but not for denying custody of child: Bombay High Court

The court noted that submissions made by senior advocate Indira Jaising on behalf of the petitioner on alleged adulterous behaviour of estranged wife were part of his plea before family court filed in 2020 and it has to be proved by leading evidence before the said court as they are yet to be proved.

“Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt, as held by various judgments, that not being a good wife does not amount to not being a good mother,” Justice Patil noted.

The judge added that as held in a recent judgement of the Delhi HC, “even though the allegations are proved as regards to the wife’s extramarital affair, as far as custody of the minor children is concerned, in a given case, the same can be granted to the wife.”

The couple got married in February, 2010 and the daughter was born in 2015, however, as per the respondent wife, in 2019, she was driven out of matrimonial home and custody of the daughter was not given to her. However, the petitioner claimed that she had left on her own accord.

In January, 2020, she filed a complaint against her husband and initiated proceedings under the Protection of Women from Domestic Violence (DV) Act, 2005 and also levelled charges against his family members for harassing her. In response, the husband filed a divorce petition on grounds of cruelty.

The family court in February, last year granted the woman an interim custody of the minor daughter. In the same month, the petitioner sought a restoration plea citing that he had child’s custody since December, 2019. The family court however rejected his plea for interim custody, prompting him to approach HC.

Jaising argued that the minor daughter was not comfortable in her mother’s custody and it would not be proper for her to be in the custody of a mother who allegedly had multiple affairs. However, the court noted that in matters related to custody of the minor, it has to consider ‘welfare of the child’ and in the present case the daughter is in pre-puberty age.

It added that the child’s mother is a medical practitioner and is staying in a flat close to her daughter’s school along with the maternal grandmother of the child. The bench observed that the minor’s academic record during the custody with the mother was ‘good’ and held that there was ‘no reason’ to grant custody to the petitioner man and dismissed his plea.