Although Adultery Is Grounds For Divorce, It Can't Be A Ground To Deny Child's Custody: Bombay High Court

The Bombay High Court held on Friday that adultery is a ground for divorce but cannot be a ground for denying custody of a child.

Justice Rajesh Patil dismissed a writ petition filed by son of a former legislator seeking custody of his nine-year-old daughter from his estranged wife on grounds of adultery.

“Adultery is in any case a ground for divorce, however the same can't be a ground for not granting custody”, the court observed.

The court relied on a January 2024 judgement by the Delhi High Court, which granted custody to a wife despite allegations of her extramarital affair being proven.

The petitioner, an IT professional and his wife, a doctor, got married in 2010. They had a daughter in 2015. The wife claimed that she was driven out of their matrimonial home in December 2019. However, the husband claimed that she left on her own.

In January 2020, the wife lodged a police complaint against her husband under section 498A of the IPC and a complaint before the magistrate under the Protection of Women from Domestic Violence Act, 2005. The husband filed for divorce on grounds of cruelty. The family court, in February 2023, granted interim custody of the girl to the wife.

The custody of the minor daughter remained with the wife from February 24, 2023 till February 9, 2024, for a period of roughly one year. Despite the husband initially complying with the custody order by handing over the daughter to the wife on February 24, 2023, he failed to return the daughter to her mother's residence after a weekend visit on February 11, 2024.

He filed an interim application seeking modification of custody arrangements, which was dismissed by the Family Court. Thus, he filed the present writ petition before the high court.

The husband argued against the wife's custody, citing alleged discomfort of the minor daughter and the wife's purported multiple affairs.

The court emphasized that such claims were yet to be substantiated and could not be a decisive factor in custody matters. “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 the various judgments that not a good wife is not necessarily that she is not a good mother.”

The court noted that the wife, a doctor by profession, had arranged for suitable accommodation near the daughter's school. Additionally, the court noted that the grandmother of the child, who resided with the wife, provided additional support in caring for the daughter.

Addressing concerns raised about the daughter's behavior at school, the court questioned why the school authorities communicated with the paternal grandmother, a former legislator, instead of the parents, who were well-educated.

“According to me, the school authorities have no reasons to inform about the issues relating to the minor daughter to the grandmother (who is a politician) when both the parents of the minor daughter are available. So also, one cannot forget that both the parents are well-educated and in fact the mother of the minor daughter is a doctor by profession”, the court held.

The court highlighted the paramount consideration of the child's welfare in custody disputes, especially given the daughter's tender age of nine. It underscored the importance of maintaining stability and continuity in the child's environment, especially given her pre-puberty age.

The court noted that the girl's maternal grandmother had been caring for her, and her academic record and participation in extracurricular activities during custody with the mother was commendable. Consequently, the bench directed the petitioner to hand over custody to the wife by April 21.

Case no. – Writ Petition No. 4060 of 2024

Case Title – ABC v. XYZ