Adulterous Spouse Not Equivalent To 'Incompetent Parent', Extramarital Affair Not Sole Factor To Deny Child's Custody: Delhi High Court

Observing that an “adulterous spouse” is not equivalent to an “incompetent parent,” the Delhi High Court has said that the points for consideration in divorce proceedings and custody matters may be co-related but they are always “mutually exclusive.”

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said that an adulterous relationship or extramarital affair of either spouse cannot be the sole determining factor to deny custody of a child, unless it is proved that such relationship is pernicious or detrimental to the minor's welfare.

The court made the observations while dealing with cross appeals moved by husband and wife against a judgment whereby both of them were granted joint custody of two minor daughters with shared parenting.

Later, the custody of the children remained with the mother, though visitation rights were granted by court from time to time to the father.

The husband alleged that adulterous relationship of the wife disentitled her to the custody of the children. On the other hand, the wife argued that she had looked after the daughters when they were abandoned by the father and that she had been taking good care of all their needs.

The court observed that while the over-emphasis of the entire evidence was on proving wife's extra-marital affair, there was not an iota of evidence to show that she, in any way, failed to take care of the needs of the children.

“The respondent/mother may not have been a faithful or a good wife to the appellant/husband, but that in itself is not sufficient to conclude that she is unfit to have the custody of the minor children, especially when no evidence has been brought on record to prove that she in any manner, neglected to take care of the children or that her conduct has resulted in bad influence of any kind, on the children,” the court said.

It added that though the father may be equally capable of taking care of the minor daughters, but that in itself cannot be the ground to disturb custody of the children who were in the custody of the mother since January-February of 2020.

While upholding the family court's view of devising a shared-parenting plan, the court however observed that such a plan must be modified, taking into consideration their educational needs and also an element of stability in their day-to-day life.

Accordingly, the bench ordered that the permanent custody of the children will remain with the mother, but the father will have his right of day custody from 09:00 A.M. till 08:00 P.M., on every second Sunday of the month.

“That on special occasions, like birthday or any intervening festival/occasion, the appellant/father shall have a right to meet the children for minimum three hours during the day, which may be worked out mutually by the parties,” the court said.

It added that all the decisions in regard to the education and future of the children shall be taken jointly by both the parties.

Counsel for Appellant (Husband): Ms. Rashmi Malhotra & Mr. Shalinder Saini, Advocates

Counsel for Respondent (Wife): Mr. S.D. Singh & Ms. Shweta Sinha, Advocates

Title: X v. Y

Citation: 2024 LiveLaw (Del) 128