Adultery can be a ground for divorce but cannot be a ground for granting custody of a minor child, observed the Bombay High Court. The court directed the man to hand over the custody of a nine-year-old girl to her mother while dismissing the plea of a father, who is a son of a former legislator.
The HC was hearing a plea filed by the man challenging the February 2023 order passed by the family court which granted the minor daughter’s custody to his estranged wife.
The couple married in 2010 and their daughter was born in 2015. The woman, a doctor, alleged that she was forced out of the matrimonial house in 2019. She also alleged that the man kept their daughter’s custody and did not allow her to meet her. However, the man claimed that the woman left the house on her own.
His counsel Indira Jaising argued before the court that the woman has had multiple affairs and hence it would not be appropriate to give her the minor girl’s custody.
Justice Manish Pital, however, remarked that the allegations of adulterous behaviour of a woman will have no bearing while deciding the child’s custody issue.
“There is no doubt that ‘not a good wife’ does not necessarily mean that she is not a good mother. Adultery can be a ground for divorce, however, the same cannot be a ground for not granting custody,” the judge said in April 12.
The man had further claimed it would be in the child's interest to live with him and his parents. He pointed out that the the child’s school authorities had sent emails to his mother raising concern over her behaviour.
Refusing to accept the contention, the judge questioned as to why would the school contact the grandparent where the girl’s parents themselves are well educated.
The court noted that the man’s mother was a former legislator and was also aspiring to contest for the upcoming Lok Sabha elections. “According to me, the school authorities have no reason to inform about the issues relating to the minor girl to the grandmother, who is a politician, when both the parents of the child are available, well-educated and in fact the mother of the child is a doctor,” the court underlined.
Also, the girl is only nine-year-old which can be called as a pre-puberty age and in such custody matters, the court must consider as paramount the welfare of the child.
In the order, the court emphasised that the girl is being taken care of by her maternal grandmother and her academic record during her custody with the mother is also good. “Therefore, according to me, there is no reason to change custody from the wife to the husband,” the judge opined.
Hence, the court directed the man to hand over the child’s custody to her woman by April 21.
The woman had lodged a complaint in 2020 against her husband, her in-laws alleging harassment, assault, and criminal intimidation. She had also alleged that the child was forcibly taken away from her.
She had also filed a complaint under the Domestic Violence Act before a magistrate’s court and filed a plea before the family court seeking the daughter’s custody.
The man also filed a petition before the family court seeking divorce and also the daughter’s custody.
In 2023, the family court directed him to hand over the daughter’s custody to the women and granted him access.
However, the woman alleged that in February this year, the man refused to return the daughter when she went to his house during weekend access.
